Harold J. Krent
Harold J. Krent
David N. Yellen
David N. Yellen

When New York took a step toward adopting the Uniform Bar Exam, the rest of the country noticed.

“New York’s announcement last October took everyone by surprise a little bit,” Regina Kwan Peterson said about the New York State Board of Law Examiners’ recommendation last October to use the test.

The Uniform Bar Exam (UBE) aims to create the same standard for would-be lawyers across the country.

It allows mobility because a test score in one state can be transferred to another state that also uses the test. But critics say it diminishes the importance of learning individual state law.

When Peterson became the director of administration of the Illinois Board of Admissions to the Bar in 2010, discussions were already rumbling here about the state possibly adopting the national test. The conversation continued over the next few years, but by last fall, it was dormant.

That’s because the 14 states that had adopted the test at that time lacked the influential weight of New York. And those states accounted for just under 10 percent of all test takers in 2014.

Even in January when Kansas adopted the test, that number rose only to 10.1 percent.

Prior to New York, the largest UBE state was Colorado, which administered 1,238 bar exams last year.

Compare that to New York, which had the nation’s most test takers in 2014 with more than 15,200 — good for nearly 19 percent of all test takers nationwide.

“That’s what started it,” Peterson said.

“It” is a “resurgence of interest in Illinois,” Peterson said. IBAB raised the topic at its Feb. 25 meeting and added it as an agenda item in April for its June 5 meeting.

On May 5, New York officially adopted the test, which the state will administer for the first time next July. IBAB then formed a committee to formally examine the possibility of the state adopting the national test.

The committee is in its early stages — its first meeting was June 29. Peterson anticipates the committee reaching out to deans, bar associations and student groups over the next six months.

Unrelated to that, in the spring of 2014, the Illinois State Bar Association formed a task force called The Impact of Law School Curriculum and Debt on the Future of Our Profession, which studies what its name implies.

Tied into the task force’s mission is an examination of the bar exam, said Illinois Appellate Justice Ann B. Jorgensen, who is chairing the group, which includes Illinois deans Jennifer L. Rosato Perea of DePaul University College of Law and David N. Yellen of Loyola University Chicago School of Law.

That committee plans to deliver a report to the ISBA at its midyear meeting in December — at which point the IBAB committee will be much closer to its own conclusion, whatever that might be.

So far, Illinois deans who have strong opinions on the matter are in favor of the UBE.

“The bar exam ought to be a test of general legal competence, not rote memorization,” Yellen said. “And the UBE is a major step in the right direction.”

In Illinois, the bar exam is a two-day test consisting of four parts:

  • The Multistate Bar Examination (MBE)
  • The Multistate Performance Test (MPT)
  • Six Multistate Essay Examination questions (MEE)
  • Three Illinois Essay Examination questions (IEE)

This means that Illinois already administers all three portions of the UBE: the MBE, MPT and MEE.

So if the Land of Lincoln ever starts administering the test, the change will be less dramatic than in a state that doesn’t already use all three of those elements.

The idea of a national bar exam is a “fairly old one,” said Erica Moeser, president of the National Conference of Bar Examiners, which administers the UBE.

The current UBE is a result of the work of two committees in the 1990s and early 2000s — one from the NCBE and one from the American Bar Association.

“Both committees ultimately came to the conclusion that rather than strike out in an altogether new direction with a completely new test, it made more sense to use existing test instruments,” Moeser said.

The tests are weighted the same state to state and use a consistent grading process.

States can then add state-specific material, which New York will do with a 15-hour online test. Unlike Illinois, New York requires 50 hours of pro bono service for admission to the bar, a requirement that remains.

Perhaps most crucially, states set their own passing score, known as cut scores. UBE cut scores range from 260 (Alabama, Minnesota, Missouri, North Dakota) to 280 (Alaska, Idaho).

A score earned in one UBE state can be transferred to any state whose cut score is at or below the student’s score.

“I’m leaning to the uniform bar approach,” said Dean Harold J. Krent of IIT Chicago-Kent College of Law, who is serving as ex officio for the IBAB committee.

“I think it simplifies life from both the state regulatory perspective as well as from the student side.”

In 2011, Missouri became the first UBE state. Michael Wolff, the dean of Saint Louis University School of Law, called the test’s impact “neutral so far.”

Missouri’s arguments for and against the test were the same as those that other states — including Illinois — have faced.

The main argument in favor of adoption is the mobility it offers test-takers.

Wolff, who was a justice on Missouri’s Supreme Court when Missouri implemented the UBE and who said that he is “not a fan” of bar exams in general, also liked that the test added a higher degree of “professionalism” to the entire process of writing, taking and grading the exam.

The main argument against adoption is the impact a uniform test has on a state’s individuality.

“But I think that’s a red herring,” Yellen said. “People don’t remember the law they crammed for the bar exam. ... So when the time comes in practice and they confront an issue for the first time, they do what lawyers do: They research it, they consult with other lawyers and they learn what they need to then.”

New York grappled with questions of preserving the “historic special nature” of its laws, said New York Law School Dean Anthony Crowell.

Ultimately the state realized that enabling young lawyers to remain mobile was more important.

“The need for a state-dominant legal system has faded greatly over the past 50 years,” said Dean Eric Lane of the Deane School of Law at Hofstra University. “We have to test people on the world we practice in — not the world we used to practice in.”

Another argument raised about the UBE can be read as either a pro or a con: the impact on law school curricula.

Dean Daniel B. Rodriguez of Northwestern University School of Law believes the UBE “gives us in the law school less incentive to narrow the scope of our curriculum to tie our education tightly to one state’s laws.”

But Northwestern considers itself a national law school. The same can not be said for Touro College Jacob D. Fuchsberg Law Center on Long Island, where Dean Patricia Salkin is critical of the UBE in its current “piecemeal” form.

“It’s conceivable that you can pass the UBE and not pass a state-specific exam in another state,” Salkin said, meaning you would not yet be admitted to the bar.

On July 28 and 29, Illinois will administer its bar exam. Last year, about 70 percent of test-takers nationwide took the bar in July as opposed to February, totals similar to Illinois.

About 3,000 to 3,500 people take the bar in Illinois every year.

The state will spend about $106 for test materials per test-taker, Peterson said. The UBE spends $114 for test materials per test taker, Moeser said.

And that does not include whatever Illinois would spend on a state-specific test such as the one New York will administer.

Recommendations to use the UBE are currently under consideration in Iowa and Vermont.

New York was the tipping point, said IIT Chicago-Kent’s Krent.

“When a big state and a respected state like New York (adopts it),” he said, “that should serve as a kind of impetus for other states to take a hard look at the UBE.”