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Where will the Uniform Bar Exam strike next?

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Uniform Bar Exam

As the Uniform Bar Examination (UBE) continues to spread across the country—now administered in 34 jurisdictions—the question is whether big-ticket states like California, Florida, and Texas will follow suit. The answer is still unclear.

Ohio is the latest jurisdiction to join the wave of states admitting students to their respective bars based on their UBE scores and will begin administering the uniform test in 2020. Given that each state’s supreme court must decide whether to transition, though, it is difficult to say which state may be next.

Eyes are on Texas after the Task Force on the Texas Bar Examination recommended the Texas Supreme Court adopt the UBE in May. If Texas adopts the UBE, it is possible several other states will follow, as was the case when New York first adopted the UBE in 2015, after which Connecticut, Vermont, and New Jersey quickly followed. States surrounding Texas, including Oklahoma, Arkansas, Louisiana, and Mississippi, have yet to embrace the UBE while New Mexico adopted the test in 2015.

“I have no idea [whether Texas will adopt the UBE] because this decision is made by the supreme court,” said Cassie Christopher, Director of the Bar Preparation Resources Office and one of 13 members on the Task Force. “Other states have had task forces recommend the UBE, and nothing happened.”

Christopher said the UBE offers a number of features that could benefit upcoming lawyers. Judith A. Gundersen, President of the National Conference of Bar Examiners, agrees.

Gundersen said the UBE maximizes job opportunities for graduating students.

“If you’re going to sit in a UBE jurisdiction, instead of being able to practice in one jurisdiction, you now are going to have 33 other jurisdictions where you can look for a job,” Gundersen said.

Many students are already taking advantage of this mobility. July’s exam scores have not yet been processed, but Gundersen said that since 2011, when the UBE was first administered, roughly 12,000 UBE test takers have transferred their scores to a jurisdiction where they did not take the bar.

“About 13–14 percent of the people who have earned a score under the UBE are transferring a score to another jurisdiction, and that doesn’t take into account the July [2018] figures,” Gundersen said, noting this percentage has held steady.

Some of these transfers may be taking advantage of the fact that states’ UBE passage scores, which are set by each state independently, range anywhere from 260 to 280.

“Let’s say you don’t make the cut score [for your school’s jurisdiction]—you still have options,” Gundersen said.

Christopher and Gundersen also said easy crossover of test scores allowed soon-to-be lawyers to establish cross-jurisdictional practices more easily.

Alisha Patel, third-year student at the University of Chicago Law School, said she supported the adoption of the UBE for the convenience. Patel recently accepted an associate position in Texas.

“I probably would have taken the bar exam here [in Illinois] for convenience,” Patel said. “Taking it in Texas, I’m going to have to fly and stay in a hotel.”

She also supports the switch because the flexibility of transferring scores postpones the pressure of deciding where students plan to practice.

“I think adopting it would be nice from the student perspective just because coming out of law school you wouldn’t have to make the decision right then and there,” Patel said. “It just gives us more career opportunities in general.”

Other benefits of administering the UBE include a consistent testing curriculum from state to state.

“It increases the consistency in subjects tested in bar exams across the country,” Gundersen said. “It’s pretty clear what’s on the exam and what you have to study.”

After adopting the UBE, 11 states have chosen to test only the material administered through the nationalized test, meaning no local state law component. These states include Connecticut, Illinois, Maine, Minnesota, and several others. 13 jurisdictions require a pre-admission jurisdiction-specific component, and nine require test takers complete a jurisdiction-specific component after the test.

These components vary in nature between states, ranging from an online video course to a CLE-style conference requirement.

Christopher said that the question of whether to test local law is one reason the transition to the UBE requires careful consideration.

“One con is that there’s nothing state-specific on the Uniform Bar Exam,” Christopher said. “There would not be any specific questions about Texas law.”

The Task Force recommended that should Texas adopt the UBE, a Texas-specific law component should be administered as an online course with an exam that tests distinctive Texas legal knowledge.

Patel said she would support the decision to add an extra component to the UBE if the supreme court found it important.

“I can understand from the state’s perspective that they want to have control over who gets in their state bar,” Patel said.

Choosing to administer the UBE is a choice that diminishes the ownership of local lawyers over who is administered to practice in their state, as test takers would be tested under an NCBE-designed test.

“As it is, states that have their own bar exam retain their own bar exam—it’s written, drafted, and graded by lawyers in that state,” Christopher said. “It’s [also] a question of licensure. Who should be licensed for the bar exam is largely taken out of the hands of the lawyers in those states.”

Likely many states who choose to adopt the UBE moving forward will similarly consider whether they find a jurisdiction-specific component necessary.

Despite this complexity, Christopher agreed that adopting the UBE could be an advantage to Texas and other states. One particular advantage is reliability; the UBE is known for the reliability of its tests, and achieving it is a problem many states struggle with year to year.

“States want to administer a test that is reliable, [meaning the test is the] same level of difficulty and the same number of students would pass no matter what time they take it,” Christopher said.

For those states that have chosen to adopt the UBE, Gundersen said the switch has been seamless from NCBE’s perspective. She found this is the case partly because many states have already used the test materials before and partly because the states have taken the decision to adopt the UBE very seriously.

“The states that decide to go to UBE have, without exception, engaged in a very deliberative process and have planned well, giving themselves plenty of time to notify students, law schools and other stakeholders of the change,” Gundersen said. “It makes for a smooth process.”

Gundersen could not say, though, whether the UBE would continue to spread to more states.

“If you would have told me 3 or 4 years ago that 34 jurisdictions would adopt the UBE, I would have been surprised.”

Danielle Maddox Kinchen Danielle Maddox Kinchen is a 3L student at the Louisiana State University Law Center, where she serves as a senior editor for the Louisiana Law Review and member of the Moot Court Board. She graduated Magna Cum Laude from Tulane University, where she majored in Political Science and English and served two years as the editor-in-chief of Tulane’s student-run newspaper, the Tulane Hullabaloo. Danielle formerly worked as a metro news reporter in Baton Rouge for Louisiana’s premier newspaper The Advocate. She also worked as a summer journalist intern and later freelancer for U.S. News and World Report. In addition, her work has been published in the Louisiana Bar Journal.