Bar examination in the United States

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In the United States, those seeking to become lawyers must normally pass a bar examination before they can be admitted to the bar and become licensed to practice law. Bar exams are administered by states or territories, usually by agencies under the authority of state supreme courts. [lower-alpha 1] Almost all states use some examination components created by the National Conference of Bar Examiners (NCBE). Forty-one jurisdictions have adopted the Uniform Bar Examination (UBE), which is composed entirely of NCBE-created components.

Contents

In every U.S. jurisdiction except Wisconsin, Oregon, and Washington, all those seeking admission to the bar must pass a bar examination. [1] In Wisconsin, graduates of the Juris Doctor degree programs of the state's two American Bar Association-accredited law schools—the University of Wisconsin Law School and Marquette University Law School —may be admitted to the Wisconsin bar by diploma privilege without taking a bar examination. Oregon permits students who have completed a Juris Doctor program with certain required coursework to obtain bar admission through a Supervised Practice Portfolio Examination. [2] In Washington, the State Supreme Court in March 2024 approved "in concept" alternative pathways based on apprenticeship or work experience. [3] [4]

History

The first bar examination in what is now the United States was administered in oral form in the Delaware Colony in 1783. [5] From the late 18th to the late 19th centuries, bar examinations were generally oral and administered after a period of study under a lawyer or judge (a practice called "reading the law"). [5] [6] The trend in the 19th century was toward more casual examinations and options for exemptions. [7]

After the emergence of law schools in the 1870s onward, bar examinations became even less common as many states offered diploma privilege to local law school graduates. [8] Between 1890 and 1920, most states replaced oral examinations with written bar examinations. [9] Written examinations became commonplace as lawyers began to practice in states other than those where they were trained. [10] [9]

In 1921, the American Bar Association formally expressed a preference for required written bar examinations in place of diploma privilege for law school graduates. In subsequent decades, the prevalence of diploma privilege declined deeply, and bar examinations became a standard requirement of admission to the bar. [11] [12] By 1980, all but five states required written bar examinations; as of 2020, only Wisconsin allows J.D. graduates of accredited law schools to seek admission to the state bar without passing a bar examination. [12] [13] [14] [15] [16]

Content of the bar examination

The bar examination is generally administered over two days (in some cases, three days). [17] In most jurisdictions, it is administered twice a year, in February and July. [1] Bar examinations in all but two jurisdictions in the United States use some examination component created by the National Conference of Bar Examiners (NCBE).

Components created by the National Conference of Bar Examiners (NCBE)

Multistate Bar Examination (MBE)

The MBE is a standardized test consisting of 200 multiple-choice questions covering seven key areas of law: constitutional law, contracts, criminal law and procedure, federal rules of civil procedure, federal rules of evidence, real property, and torts. [18] The MBE formerly addressed only six topics, with civil procedure added by the NCBE in 2009 and administered starting in 2015. [19] Examinees have three hours to answer 100 questions in a morning session and the same for an afternoon session. The MBE is administered in all U.S. states and territories, except Louisiana and Puerto Rico, which follow civil law systems very different from the legal systems in other states. [1] [20] The MBE is administered in most jurisdictions on the last Wednesday in February and July.

Of the 200 questions, 175 are scored and 25 are questions under evaluation for future use. [18] The NCBE grades the MBE using a scaled score ranging from 40 to 200. [21] Taking the MBE in one jurisdiction may allow an applicant to use his or her MBE score to waive into another jurisdiction or to use the MBE score with another state's bar examination. [22] NCBE provides free example MBE questions for civil procedure with explanatory answers [23] along with further free example questions, to which answer explanations were provided [24] pro bono.

Multistate Essay Examination (MEE)

The MEE consists of six 30-minute essay questions that examines a candidate's ability to analyze legal issues and communicate them effectively in writing. In addition to the topics examined in the MBE, the MEE also covers business law, commercial law, conflicts of law, estates and probate law, and family law. The MEE is administered on the last Tuesday in February and July, the day before the MBE.

The NCBE drafts six MEE questions for each exam. The questions are drafted by the NCBE Drafting Committee, with the assistance of outside academics and practitioners who are experts in the fields being tested, and then reviewed by outside experts and state boards of bar examiners. Unlike the MBE, which is graded and scored by the NCBE, the MEE is graded exclusively by the jurisdiction that administers the bar examination. [25] Each jurisdiction has the choice of grading MEE questions according to general U.S. common law or the jurisdiction's own law. [26]

Multistate Performance Test (MPT)

The MPT is a "closed-universe" test in which each candidate is required to perform a standard lawyering task, such as a memo or brief. The candidate is provided with a case file and a "library" which contains all of the substantive law required to perform the task (plus some non-relevant material). The MPT is administered on the last Tuesday in February and July, the same day as the MEE. The NCBE provides two MPT questions. [27] The MPT is usually situated in the fictional state of Franklin.

Components created by states and territories

California and Pennsylvania draft and administer their own performance tests. [28]

California began administering three-hour-long performance tests in 1983, based on the results of a July 1980 experiment. [29] California performance tests are far more difficult than the MPT. Starting with the July 2017 bar examination, California switched to a 90-minute format [30] but continues to prepare its own performance tests, which are usually situated in the fictional state of Columbia.

Essay questions are the most variable component of the bar exam. States emphasize different areas of law in their essay questions depending upon their respective histories and public policy priorities. For example, unlike Texas and California, Louisiana did not convert to the common law when it was acquired by the United States, so its essay questions require knowledge of the state's unique civil law system. Several states whose family law was influenced by Spanish and Mexican civil law, like California and Texas, require all bar exam applicants to demonstrate knowledge of community property law. Pennsylvania, with a history of federal tax evasion (e.g., the Whiskey Rebellion), tests federal income tax law, while New Jersey, with a history of discriminatory zoning (resulting in the controversial Mount Laurel doctrine), tests zoning and planning law. New Mexico, South Dakota, and Washington each test Indian law, because of their relatively large populations of Native Americans and large numbers of Indian reservations. Most states test knowledge of the law of negotiable instruments and secured transactions (Articles 3 and 9 of the Uniform Commercial Code), but Alaska, California, Minnesota, and Pennsylvania do not; they have recognized that the vast majority of criminal, personal injury, and family lawyers will never draft a promissory note or litigate the validity of a security interest.

Uniform Bar Examination (UBE)

The Uniform Bar Examination (UBE) is a standardized bar examination in the United States developed by the NCBE. It consists solely of the MBE, MEE, and MPT, and offers portability of scores across state lines. According to the NCBE, the UBE is intended to "test knowledge and skills that every lawyer should be able to demonstrate prior to becoming licensed to practice law", and "is uniformly administered, graded, and scored by user jurisdictions and results in a portable score." [31] UBE jurisdictions are allowed to additionally test candidates' knowledge of state-specific law, through either a test or course. [31]

The UBE was created in 2011, and was first administered that year by Missouri and North Dakota. [32] It has since been adopted by 37 United States jurisdictions (out of a possible 56). [33] The American Bar Association also endorsed the UBE at its 2016 mid-year meeting. [34] However, some of the largest legal markets—including California and Florida—have not adopted the UBE. Concerns include the lack of questions on state law, and that the test provides NCBE with control over the bar credentialing process. [35] In addition, the largest UBE market (New York), indicated that it may withdraw from the UBE, after a task force commissioned by the New York State Bar found in 2020 that "since the adoption of the UBE, the fundamental purpose of the bar examination, which is to protect the public, has been lost." [36] [37]

A number of jurisdictions are considering or have considered adoption of the UBE:

Preparation for the bar examination

Most law schools teach students common law and how to analyze hypothetical fact patterns like a lawyer, but do not specifically prepare law students for any particular bar exam. Only a minority of law schools offer bar preparation courses.

To refresh their memory on "black-letter rules" tested on the bar, most students engage in a regimen of study (called "bar review") between graduating from law school and sitting for the bar. [45] For bar review, most students in the United States attend a private bar review course which is provided by a third-party company and not their law school. [46]

Overview of bar examination by jurisdiction

Overview of bar examination components by U.S. jurisdiction [47]
JurisdictionUBEMBEMEEMPTLocally administered exam components
Alabama✔✔✔✔
Alaska
Arizona
Arkansas
California5 essay questions, 1 performance test
Colorado✔✔✔
Connecticut
Delaware8 essay questions
District of Columbia✔✔
Florida3 essay questions, 100 multiple-choice questions
Georgia✔4 essay questions
Guam✔1 essay question
Hawaii15 multiple-choice questions
Idaho✔
Illinois
Indiana
Iowa✔✔
Kansas
Kentucky
Louisiana9 locally developed sections
Maine✔✔✔✔
Maryland
Massachusetts
Michigan(Starting February 2023)✔✔
Minnesota✔✔✔
Mississippi6 essay questions
Missouri✔
Montana
Nebraska
Nevada8 essay questions
New Hampshire✔✔
New Jersey
New Mexico
New YorkNew York Law Exam
North Carolina
North Dakota
Northern Mariana Islands2 essay questions
Ohio✔✔✔
Oklahoma
Oregon✔✔✔
Pennsylvania✔✔✔
Puerto Rico8 essay questions, 184 multiple-choice questions
Rhode Island✔✔✔✔
South Carolina
South Dakota1 Indian law question
Tennessee✔
Texas
Utah
Vermont
Virgin Islands
Virginia9 essay questions, 10 multiple-choice questions
Washington✔✔✔
West Virginia
WisconsinCombination of MEE, MPT, and locally drafted essay questions
Wyoming✔

Details of UBE by jurisdiction

Transfer scores and eligibility, adoption dates, and additional requirements for jurisdictions that have adopted the UBE [47]
State or territoryIn-state scoreTransfer scoreFirst UBE administrationAdditional exam or courseUBE transfer eligibility
Alabama 260260July 2011Yes25 months
Alaska 280280July 2014No60 months
Arizona 273273July 2012Yes
Arkansas [48] 270270February 2020No36 months
Colorado [49] 276276February 2012No36 months [lower-alpha 2]
Connecticut [50] 266266February 2017No36 months
District of Columbia [51] July 2016No60 months
Idaho [52] 272280February 2012No37 months
Illinois [53] 266266July 2019No48 months
Indiana [54] 264264July 2021No60 months
Iowa 266266February 2016 [55] No60 months [lower-alpha 3]
Kansas February 2016No36 months
Kentucky February 2021No60 months
Maine 276276July 2017No36 months
Maryland [56] 266266July 2019Yes
Massachusetts [57] 270270July 2018 [58] Yes
Michigan [59] 268268February 2023NoTBD
Minnesota 260260February 2014No36
Missouri February 2011Yes24 months
Montana [60] 266266July 2013 [61] Yes36 months
Nebraska 270270February 2012No
New Hampshire February 2014No36 months [lower-alpha 4]
New Jersey 266266February 2017No36 months
New Mexico 260260February 2016Yes
New York [62] 266266July 2016 [63] Yes
North Carolina [64] 270270February 2019Yes
North Dakota 260260February 2011No24 months
Ohio [65] 270 [66] 270July 2020No60 months
Oklahoma [67] 264264July 2021No36 months
Oregon [68] 274274July 2017No36 months
Pennsylvania [69] 272272July 2022No30 months
Rhode Island [70] 276276February 2019Yes24 months
South Carolina 266266February 2017Yes36 months
Tennessee [71] 270270February 2019 [72] No
Texas [73] 270 [74] February 2021Yes24/60
Utah [75] 270February 2013No24/60 [lower-alpha 5] months
Vermont July 2016No36 months [lower-alpha 6]
Washington [76] July 2013Yes40 months
West Virginia [77] July 2017No36 months
Wyoming July 2013No
U.S. Virgin Islands [78] 266266July 2017Yes

Criticism

Arguments against bar exams

A statement by the Society of American Law Teachers (SALT) [79] articulates many criticisms of the bar exam.[ vague ] [80] The SALT statement, however, does propose some alternative methods of bar admission that are partially test-based. A response to the SALT statement was made by Suzanne Darrow-Kleinhaus in The Bar Examiner. [81]

Arguments for alternatives to the bar exam

The NCBE published an article in 2005 addressing alternatives to the bar exam, including a discussion of the Daniel Webster Scholar Honors Program, an alternate certification program introduced at the University of New Hampshire School of Law (formerly Franklin Pierce Law Center) in that year.[ citation needed ]

Notes

  1. ↑ Sometimes the agency is an office or committee of the state's highest court or intermediate appellate court. In some states which have a unified or integrated bar association (meaning that formal membership in a public corporation controlled by the judiciary is required to practice law therein), the agency is either the state bar association or a subunit thereof. Other states split the integrated bar membership and the admissions agency into different bodies within the judiciary; in Texas, the Board of Law Examiners is appointed by the Texas Supreme Court and is independent from the integrated State Bar of Texas.[ citation needed ]
  2. ↑ 3 years + 2 years active practice immediately preceding
  3. ↑ with proof upon filing of regular practice 2 of 3 years immediately preceding
  4. ↑ if older than 3 years, applicant must show practice for prior 2 years and was in good standing for the whole duration
  5. ↑ for attorneys of other jurisdictions with proof of full-time law practice for at least half of the time since passing the exam
  6. ↑ if engaged in the practice of law for 2 years and in good standing

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The Arizona Bar Exam is the exam administered by the Admissions Unit of the Certification and Licensing Division of the Supreme Court of Arizona. A satisfactory score on the Arizona Bar Exam is one of numerous requirements for admission to be admitted as an attorney in the State of Arizona.

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Qualified Lawyers Transfer Scheme (QLTS) is a series of two examinations for the license to practice as a solicitor in England and Wales designed for foreign-licensed lawyers. The QLTS supplanted the Qualified Lawyers Transfer Test (QLTT) on 1 September 2010. The QLTS assessment was designed to increase the number of recognised foreign jurisdictions for the examinations. These changes have opened up the English legal market to qualified lawyers from places as diverse as Korea, Japan and Russia.

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References

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  2. ↑ "Supervised Practice Portfolio Examination".
  3. ↑ "Supreme Court: Bar exam will no longer be required to become attorney in Washington State | The Spokesman-Review". The Spokesman-Review. Retrieved 2024-03-22.
  4. ↑ Sloan, Karen (March 18, 2024). "Washington adopts new lawyer licensing paths as other states mull bar exam bypasses". Reuters.
  5. 1 2 California Bar Background information, accessed April 21, 2009 Archived May 10, 2009, at the Wayback Machine
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  7. ↑ Hansen, Daniel (1995-01-01). "Do We Need the Bar Examination--A Critical Evaluation of the Justifications for the Bar Examination and Proposed Alternatives ?". Case Western Reserve Law Review. 45 (4): 1191–1235. ISSN   0008-7262.
  8. ↑ "California Bar Examination: Information and History" (PDF). The State Bar of California. p. 3. Retrieved June 27, 2011.
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  11. ↑ Hansen, Daniel (1995-01-01). "Do We Need the Bar Examination--A Critical Evaluation of the Justifications for the Bar Examination and Proposed Alternatives ?". Case Western Reserve Law Review. 45 (4): 1191–1235. ISSN   0008-7262.
  12. 1 2 Goldman, Thomas (1974-01-01). "Use of the Diploma Privilege in the United States". Tulsa Law Review. 10 (1): 36.
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  24. ↑ Engle, Eric (2021). "Quizmaster 20 Questions: Point of Law UBE Bar Review Questions". SSRN. doi:10.2139/ssrn.3828097. S2CID   236573946. SSRN   3828097.
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  67. ↑ ABA Law Student Division (August 18, 2020). "News we should have posted Sooner: Oklahoma OKs the UBE".
  68. ↑ "Jurisdiction Information". NCBE. Retrieved 2016-10-18.
  69. ↑ Pennsylvania Board of Law Examiners (February 12, 2021). "July 2021 Bar Exam and UBE Notice".
  70. ↑ "RI to Adopt Uniform Bar Examination". Rhode Island Bar Association. Retrieved June 9, 2018.
  71. ↑ "In Re: Amendment of Rule 7, Rules of the Tennessee Supreme Court" (PDF).
  72. ↑ "Jurisdiction Information". NCBE.
  73. ↑ McCarthy, Osler. "COURT APPROVES UNIFORM BAR EXAMINATION FOR TEXAS". www.txcourts.gov/. Retrieved January 27, 2019.
  74. ↑ "Texas Board of Law Examiners - News". ble.texas.gov. Retrieved 2019-04-17.
  75. ↑ "Admission Rules". Utah State Bar. Retrieved March 2, 2017.
  76. ↑ "Uniform Bar Exam". Washington State Bar Association. Retrieved 2017-07-12.
  77. ↑ "WVSC adopts Uniform Bar Examination". The State Journal.
  78. ↑ "PROMULGATION No. 2017-005" (PDF). Virgin Island Supreme Court. Retrieved July 12, 2017.
  79. ↑ "Society of American Law Teachers". Archived from the original on 2015-04-23. Retrieved 2 May 2015.
  80. ↑ 54 JOURNAL OF LEGAL EDUCATION 442–458
  81. ↑ Suzanne Darrow-Kleinhaus (May 2005). "A Response to Criticism of the Bar Exam" (PDF). The Bar Examiner. Archived from the original on December 3, 2010. Retrieved 2011-02-17.{{cite journal}}: CS1 maint: bot: original URL status unknown (link)
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