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Report of the NYSBA Task Force on the New York Bar Examination March 5, 2020

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Report of the NYSBA Task Force on the New York Bar Examination March 5, 2020 Report of the NYSBA Task Force on the New York Bar Examination March 5, 2020 TABLE OF CONTENTS Page I. EXECUTIVE SUMMARY ............................................................................................... 1 II. INTRODUCTION ............................................................................................................. 4 III. BACKGROUND ............................................................................................................... 8 A. The New York Bar Examination Prior to the Adoption of the UBE ..................... 8 B. BOLE Proposal to Change to the UBE ................................................................ 11 (i) Background .............................................................................................. 11 (ii) Rationale .................................................................................................. 12 C. Consideration of the UBE Proposal ..................................................................... 12 (i) Public Comment Period ........................................................................... 12 (ii) Advisory Committee Recommendation ................................................... 15 D. Decision by Court of Appeals to Adopt the UBE ................................................ 17 (i) Rationale .................................................................................................. 17 (ii) Expectations ............................................................................................. 17 E. Current State of the Bar Exam ............................................................................. 18 (i) UBE.......................................................................................................... 18 (ii) State-Specific Requirement for Admission ............................................. 20 IV. THE EFFECT OF NEW YORK’S ADOPTION OF THE UBE ..................................... 21 A. Anecdotal Evidence of a Problem........................................................................ 21 B. Public Hearings Across the State ......................................................................... 22 (i) Western New York .................................................................................. 22 (ii) Nassau County ......................................................................................... 23 (iii) Capital Region ......................................................................................... 24 C. Viewpoints of the Deans of New York Law Schools .......................................... 25 D. Student Survey ..................................................................................................... 28 E. Presentations from Experts and Studies on Bar Exams ....................................... 28 (i) Alternative Approaches to Licensing Lawyers: Presentations of Professor Deborah Merritt and Dean Judith Wegner on Assessing Legal Competency ................................................................................... 28 (ii) Building a Better Bar Exam: Report by Andrea A. Curcio, Carol L. Chomsky, and Eileen Kaufman ............................................................... 33 (iii) Assessing the Transition to the UBE: Professors Suzanne Darrow- Kleinhaus and Allison Robbins ............................................................... 35 (iv) New York Study on the Transition to the UBE ....................................... 36 (v) NCBE Study on the Transition to the UBE ............................................. 38 i TABLE OF CONTENTS Page F. Meeting with the BOLE ....................................................................................... 38 V. FINDINGS ....................................................................................................................... 42 A. The Lost Purpose of the Bar Exam ...................................................................... 42 B. The NYLE has Failed .......................................................................................... 42 C. The Problems with the UBE ................................................................................ 44 1. Understanding the Methodology.............................................................. 45 2. Summary of the Issue............................................................................... 47 3. The Reliability Issue: Scaling the Written Component to the MBE ........ 48 4. The Low Correlation Between the Written Component and the MBE is Attributable to Differences in the Skills and Knowledge Tested ...................................................................................................... 52 5. The MBE Issue ........................................................................................ 53 D. The Loss of Meaningful New York Testing ........................................................ 57 E. The Devaluation of New York Law and the Teaching of New York Law .......... 61 F. The Undue Predominance of Multiple-Choice Questions and its Disparities ............................................................................................................ 62 G. The Portability Issue ............................................................................................ 64 H. Foreign Law School Graduates ............................................................................ 66 I. Employment and Employers ................................................................................ 68 VI. OPTIONS AND RECOMMENDATIONS ..................................................................... 68 1. Do Nothing............................................................................................... 70 2. Eliminate the NYLC and NYLE .............................................................. 70 3. A More Robust New York Test Component ........................................... 70 4. UBE and New York Choices ................................................................... 73 5. UBE Plus New York Test ........................................................................ 74 6. New York Law Certification ................................................................... 76 7. New York CLEs ....................................................................................... 77 8. Study and Reform the UBE ..................................................................... 77 9. Experiential Learning Pilot Program ....................................................... 78 VII. CONCLUSION ................................................................................................................ 79 ii I. EXECUTIVE SUMMARY The Task Force on the New York Bar Examination (the “Task Force”) was formed in April 2019 by then-President Michael Miller to investigate and report on the impact of New York’s adoption of the Uniform Bar Examination (UBE) on applicants, on the qualifications and relevant legal knowledge of newly-admitted New York attorneys, on potential employers, on members of the Bar, on the court system, and on diversity in the profession. This report sets forth the results of our work and our recommendations for New York’s bar examination. We begin with a simple statement of fact: New York no longer has its own bar examination. It uses the UBE. As the rules of the Court of Appeals declare, the New York State bar examination consists of the UBE, developed by the National Conference of Bar Examiners (NCBE).1 The only component of the bar examination experience that “tests” New York law is the New York Law Examination (NYLE) which, while an examination in name, is not an examination in fact. It is a means, according to the New York Board of Law Examiners (BOLE), to give candidates exposure to important principles of New York law. Candidates are not required to demonstrate that they have meaningful knowledge of New York law. The BOLE acknowledges that the “initial versions” of the NYLE were “overly simplistic,” but claims the NYLE has become “more challenging overall.” Since the NYLE has only been administered since 2016, it is disheartening that the bulk of its administrations were, even for an exercise in consciousness-raising, “overly simplistic.” As set forth in this report, we have identified serious problems with both the UBE and the NYLE. The NYLE is not taken seriously as a test by anyone and is widely held in disrepute. Even with its low bar for passage, there are incidents of cheating, which are compounded by applicants attesting in affirmations that they did not cheat, with no effective means of either policing the administration of the test or policing the accuracy of the anti-cheating affirmations. It is ironic that one of the first steps a prospective attorney takes on the path to admission may be to dissemble on the affirmation relating to honesty in taking the NYLE. The UBE, with its reliance on testing the “law of nowhere,” has led to the training of lawyers on matters that bear little relation to the legal issues that they will encounter in practice. The grading and scoring practices are questionable and no independent analysis has been conducted into whether the UBE accurately measures what it purports to assess. While we are cognizant that a three-year study has recently been published as to New York’s experience with the UBE, we are concerned by the fact that the study was conducted by the NCBE, which is the sponsor of the UBE. It is as if the author of a book wrote its own book review. Moreover, even that study finds that the UBE
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