Bar examination in the United States

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.[6] The MBE formerly addressed only six topics, with civil procedure added by the NCBE in 2009 and administered starting in 2015.[7] 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][8] 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.[6] The NCBE grades the MBE using a scaled score ranging from 40 to 200.[9] 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.[10] The average raw score from the summer exam historically has been about 128, or about 67% correct, while the average scaled score in 2007 was about 140.[11] In summer 2007, the average scaled score was 143.7 with a standard deviation of 15.9. Over 50,000 applicants took the test; less than half that number took it in the winter.

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 nine MEE questions, and jurisdictions select six or seven questions to administer. 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.[12] Each jurisdiction has the choice of grading MEE questions according to general U.S. common law or the jurisdiction's own law.[13]

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.[14] The MPT is usually situated in the fictional state of Franklin.

California and Pennsylvania draft and administer their own performance tests.

California began administering three-hour-long performance tests in 1983, based on the results of a July 1980 experiment.[15] California performance tests are far more difficult than the MPT. Starting with the July 2017 bar examination, California switched to a 90-minute format[16] 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 Alta 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.

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."[17] UBE jurisdictions are allowed to additionally test candidates' knowledge of state-specific law, through either a test or course.[17]

The UBE was created in 2011, and was first administered that year by Missouri and North Dakota.[18] It has since been adopted by 37 United States jurisdictions (out of a possible 56).[19] The American Bar Association also endorsed the UBE at its 2016 mid-year meeting.[20] 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.[21] 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.”[22][23]

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

• In 2015, the Kentucky Supreme Court Bar Admission Review Commission rejected adopting the UBE.[24][25] Former Justice Bill Cunningham, who co-led the commission, stated in a January 2020 interview that he believes Kentucky will eventually adopt the UBE.[26]
• In 2016, the Virginia Board of Bar Examiners considered the UBE, but stated that “it is not in the best interests of the public of Virginia or the Virginia judicial system.”[27]
• In December 2018, the Indiana Supreme Court created a commission to review the future of the state bar examination.[28] In 2019, a majority of the commission recommended adoption of the UBE.[29][30][26] A previous Indiana task force had rejected adoption of the UBE in a report issued in January 2017.[31]
• In September 2019, the Oklahoma Supreme Court created a Bar Examination Advisory Committee to consider adoption of the UBE. A final report is due by December 2020.[32]
• In May 2020, Nevada indicated that it will not adopt the UBE anytime in the near future. In Nevada, the UBE is supported by the dean of University of Nevada Law School[33] but opposed by the chair of the state Board of Bar Examiners.[34][35][36]

A statement by the Society of American Law Teachers (SALT)[67] articulates many criticisms of the bar exam.[68] 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[69]

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.