By Otto Stockmeyer
Ten years after the Uniform Bar Exam became available, the Michigan Supreme Court has committed to its use here. The announcement was contained in a December 4 news release. What will this mean for Michigan’s law schools and their graduates?
Because 37 states plus the District of Columbia and the Virgin Islands already have adopted it, there is much we know about the UBE. Yet some important details are still to be announced.
What is the UBE?
The UBE consists of three components. They already are in use in nearly every other state: the Multistate Bar Exam (a day of 200 multiple-choice questions on seven subjects to test subject-matter knowledge), the Multistate Essay Exam (six 30-minute essay questions on any of twelve listed subjects, emphasizing written analysis), and the Multistate Performance Exam (two 90-minute writing assignments that test lawyering skills). The UBE is uniformly administered and graded. It results in a portable score that can be transferred to other UBE jurisdictions.
The multiple-choice Multistate Bar Exam has been administered in Michigan since 1974, so it is well known here. Multistate Essay Exam questions typically present three to five discrete questions (rather than the opaque “Discuss and decide” that lawyers might remember from law school). Multistate Performance Exam assignments generally require performance of two law-office tasks, like those described below.
How will the UBE affect Michigan law schools?
The purpose of the UBE is not to impact legal education. Its purpose is to provide the most effective measure of legal competence available, consistently across jurisdictions. That said, I anticipate two possible UBE effects.
The most important effect would be to increase skills training, due to the UBE’s Multistate Performance Test component. The MPT is designed to assess an applicant’s ability to demonstrate fundamental lawyering skills by completing tasks that a beginning lawyer should be able to handle.
Possible MPT tasks include writing a memo to a supervising attorney, or a letter to a client, or a settlement proposal. Or drafting a contract or will, or devising a discovery plan, witness-examination plan, or closing argument. The UBE would require law schools to ensure that their students not only know the law, but also develop lawyering skills. And knowing that these skills will be “on the exam” should spur law students to take increased skills training seriously.
The seven Multistate Bar Exam subjects (Contracts, Constitutional Law, Criminal Law and Procedure, Civil Procedure, Evidence, Real Property and Torts) are of greatest importance because they are also tested on the Multistate Essay Exam. Law schools that have scaled back those core courses in recent years—like reducing Contracts and Torts to four credit-hours and making Property and Evidence elective courses—might want to rethink their treatment of these double-tested subjects.
How will the UBE affect law graduates?
Michigan currently lists 16 subjects as testable on the bar exam. The UBE will reduce this number by 25 percent, to 12 subjects. The change will have the effect of placing less emphasis on rote memorization and more on analysis, thereby reducing the cognitive overload on test-preppers. Thorough analysis is facilitated by the UBE’s 30-minute essay questions as compared with Michigan’s current 20-minute ones.
Students at Michigan law schools who are open to practicing in other UBE jurisdictions will welcome the score-portability feature. They can remain here to study for and take the bar exam with the knowledge that they can transfer their score to almost anywhere a job offer might take them. Employment possibilities are further maximized because a failing score can be transferred to jurisdictions with a lower passing score.
The UBE will be particularly advantageous to our female and minority law grads. Women are significantly more likely to move out of state in their first years of practice than men, putting them at a greater disadvantage if their bar scores are not transferrable. Few states break out scores by racial groupings, but one law school found that the passing scores of their Black and Hispanic graduates increased five percentage-points after their state adopted the UBE.
What don’t we know yet?
The Supreme Court has announced that the switch to the UBE will take place July 2022. It has directed that the February 2021 bar exam revert to Michigan’s traditional format. For the other three jurisdictions announcing adoption of the UBE in 2020 (Oklahoma, Kentucky and Indiana), the average period between announcement and implementation has been nine months.
The Supreme Court has not announced what the passing score will be. The UBE has a maximum of 400 points. Other jurisdictions have set their passing scores between 260 (five jurisdictions) and 280 (one jurisdiction). The most common is 270 (fourteen jurisdictions). Neighboring Illinois’s is 266; Ohio’s is 270. Indiana is going with 264.
Also still to be revealed is whether a separate test or course on local law will be required. Currently, somewhat less than half of UBE jurisdictions have added a separate jurisdiction-specific test, course or combination of the two. New York, for instance, requires both a course and an examination on New York law, both online.
Michigan’s law schools and graduates alike should welcome the news that Michigan soon will become the 40th jurisdiction to administer the Uniform Bar Exam. It should help ensure that Michigan’s newest lawyers are skilled, diverse, and mobile.
Otto Stockmeyer earned emeritus status in 2015 after a 37-year teaching career at Western Michigan University-Cooley Law School. He is a past member of the State Bar’s Representative Assembly and Board of Commissioners, and the ABA House of Delegates. His views are his own and do not necessarily reflect those of WMU-Cooley Law School. Contact him at stockmen@cooley.edu or connect with him on LinkedIn (www.linkedin.com/in/stockmeyer/)
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