In recent times, there have been many shifts in how states administer bar exams. Probably the most vital developments has been the enlargement of the Uniform Bar Examination (UBE). The upshot of the UBE is {that a} rating is “moveable.” Somebody who receives a passing rating in a single state can transfer that rating to a different state. The largest draw back, in my opinion a minimum of, is that the UBE eliminates the requirement to know any state-specific regulation. As an alternative, the UBE focuses on “common” authorized rules that apply uniformly throughout the nation. In 2015, I warned that the unfold of the UBE would obscure the essential flavors of native regulation, and in the long term, hurt federalism.
If regulation college students are educated to imagine that there is no such thing as a distinction between legal guidelines of various states, then a whole technology of attorneys may have even much less regard for the values of federalism, whereby the states can function laboratories of democracy. There’s an significance in State A and State B having the ability to method the identical precept of regulation in several methods. Prioritizing a uniform bar examination will diminish respect for that worth.
Alas, my issues didn’t prevail.
To this point, 40+ jurisdictions have adopted the UBE, together with my residence state of Texas. And that quantity will finally method 50, as states with out the UBE place their regulation college students at a aggressive drawback. The enchantment of portability trumped the enchantment of attorneys really figuring out the regulation of the state during which they’re going to observe. It’s tough to think about any of those states might abandon the UBE, and revert to a state-specific examination.
Now that the states are hooked, the Nationwide Convention of Bar Examiners (NCBE) is making ready the subsequent technology of the examination. The “NextGen” Exam, as it’s recognized, might be launched in 2026. The 1Ls beginning within the Fall 2023 will finally sit for this examination. Prudent regulation faculties will craft their curriculum, particularly 1L protection, to make sure college students are adequately ready for the NextGen Examination. As normal, regulation faculties try to organize for a shifting goal–the main points of that NextGen usually are not but closing. And there’s motive for concern.
Justice Jay Mitchell of the Alabama Supreme Courtroom highlights among the troubling revisions within the Wall Street Journal. For instance, Mitchell notes, the examination will not take a look at Household Legislation and Wills and Trusts. Final yr, my colleagues and I submitted a letter observing that roughly half of the matters lined in property might be optionally available–that’s, college students will solely want a “common familiarity” with areas like covenants, recording statutes, and mortgages. If a subject isn’t lined on the examination, then regulation college students possible is not going to study that matter. And, once they enterprise into precise observe, they are going to be unprepared. For certain, child attorneys can study a subject they’re unfamiliar with, and I am all of them will. However the NCBE is proactively creating large gaps in information for all attorneys.
Past the substance lined, Mitchell explains how DEI is undergirding all the course of. And a watered-down examination might additional scale back the examination’s efficacy to measure a lawyer’s health to observe.
However maybe the most important concern is the NCBE’s use of the NextGen examination to advance its “range, equity and inclusion” agenda. Two of the group’s acknowledged goals are to “work towards better fairness” by “eliminat[ing] any elements of our exams that would contribute to efficiency disparities” and to “promote better range and inclusion within the authorized occupation.” The NCBE reinforces this message by touting its “organization-wide efforts to make sure that range, equity, and inclusion pervade its take a look at services and products.”
What does all this imply—and the way does it have any relation to the regulation? Based mostly on the variety workshop on the NCBE convention, it means placing appreciable emphasis on examinees’ race, intercourse, gender id, nationality and different identity-based traits. The thought appears to be that any variations in group outcomes should be eradicated—even when the one approach to obtain this aim is to water down the take a look at. On high of all that, an American Civil Liberties Union consultant supplied convention attendees with a lecture on criminal-justice reform during which he argued that states ought to decrease or overlook would-be attorneys’ convictions for varied prison offenses in deciding whether or not to confess them to the bar.
None of that is encouraging. It should not matter who you’re or the place you come from—if you happen to can display minimal competency on the bar examination and meet a state’s character-and-fitness necessities, you ought to be allowed to observe regulation. If you cannot, you should not be given a license to deal with the authorized affairs of others. The bar examination ought to take a look at the regulation straight—with out respect to ideology and on a race- and sex-blind foundation.
It will be useful if a state might merely decide out of the NextGen examination. However they’re all hooked onto the UBE. There is not any turning again to the outdated methods. Mitchell proposes one potential off-ramp:
States, for his or her half, ought to push for the choice to retain the present examination for a minimum of the subsequent 5 to 10 years till they will correctly assess the effectiveness of the brand new examination. State courts and bar associations would additionally do effectively to insist that the NCBE commit in writing that the brand new examination might be ideologically impartial and blind to race and intercourse.
In hindsight, state Supreme Courts that adopted the UBE ought to had given due regard to federalism. As an alternative, we’re caught with one fully imperfect resolution.
