March 2015 (abridged - National Conference of Bar Examiners

61 Pages·2015·1.58 MB·English

B E
THE

ar xaminer
Volume 84 | Number 1 | March 2015
A publication of the National Conference of Bar Examiners
Articles
8
2014 StatiSticS
44
the ReviSed aBa StandaRdS foR appRoval of law SchoolS:
an oveRview of the MajoR changeS
by Jeffrey E. Lewis
Departments
2
letteR fRoM the chaiR
by Bryan R. Williams
4
pReSident’S page
by Erica Moeser
54
the teSting coluMn
eSSay gRading fundaMentalS
by Judith A. Gundersen
57
newS and eventS
60
litigation update
by Fred P. Parker III and Jessica Glad
l
B TH E E etteR fRoM
ar xaminer
c
the haiR
Editor
Claire Huismann
Editorial Advisory Committee The mission of the National Conference of Bar Examiners is twofold. It
Beverly Tarpley, Chair is to work with other institutions to develop, maintain, and apply rea-
Steven M. Barkan sonable and uniform standards of education and character for eligibility
Bedford T. Bentley, Jr. for admission to the practice of law. It is also to assist bar admission
Victoria A. Graffeo
authorities by, among other things, providing high-quality examinations for the
Paul H. Mills
testing of applicants for admission to the practice of law, conducting educational
Madeleine J. Nibert
programs for bar admission authority members and staff, and providing other
Fred P. Parker III
services such as character and fitness investigations and research.
Hon. Phyllis D. Thompson
In fulfilling its mission, NCBE sponsors a number of training and educational
Publication Production and Design activities for the bar admissions community, provides assistance to jurisdictions
Melanie Hoffman on many fronts, and offers opportunities for involvement in its activities. I
encourage bar examiners, administrators, judges, educators, and anyone affili-
Editorial Assistant ated with bar admissions to become familiar with the wide range of activities that
Lisa Palzkill NCBE provides and to actively participate in those activities.
Publisher For those involved in the drafting and grading of bar exam questions, NCBE
National Conference of Bar Examiners sponsors a biennial mini-conference for bar examiners that addresses best prac-
tices in testing. Last fall, this two-day mini-conference, “Best Practices in Testing:
NCBE Officers A Mini-Conference for Bar Examiners,” held at NCBE’s headquarters in Madison,
Chair Wisconsin, focused on how bar examiners, especially new bar examiners, could
Bryan R. Williams
better learn how to grade essays and how to stay calibrated in their grading over
a period of time. For those who read and grade essays, this type of training is
President
invaluable. The mini-conference also addressed the fundamental principles appli-
Erica Moeser
cable to drafting high-quality questions, as well as desirable scoring methods to
achieve the reliability required in high-stakes testing. Such best practices are also
Immediate Past Chair
frequent topics at other NCBE educational events.
Margaret Fuller Corneille
For those bar examiners from jurisdictions that use the Multistate Essay
Chair-Elect
Examination (MEE) and/or the Multistate Performance Test (MPT), NCBE con-
Hon. Thomas J. Bice
ducts grading workshops after the administration of each exam. These work-
shops, led by workshop facilitators familiar with the questions and grading
Secretary
Robert A. Chong materials and by NCBE testing staff, provide excellent analysis of the questions
and expose attendees to the best practices for grading the questions to achieve
NCBE Board of Trustees the goal of spreading the scores. The workshops can be attended in person or via
Hulett H. Askew conference call; the sessions are also videotaped and edited and made available
Hon. Rebecca White Berch on demand for graders to stream at their convenience beginning the week after
Patrick R. Dixon the exam.
Michele A. Gavagni
Gordon J. MacDonald In addition to providing training, NCBE devotes considerable resources to
Hon. Cynthia L. Martin providing educational opportunities for the bar examining community and state
Suzanne K. Richards courts, such as its Annual Bar Admissions Conference. It is always important to
Hon. Phyllis D. Thompson know the trends in bar admissions and the latest hot-button issues experienced
2 The Bar Examiner, March 2015
by bar examiners throughout the country. This of years ago, the New York State Board
year’s Conference, held in Chicago from April of Law Examiners, on which I serve as a
30 to May 3, will focus on, among other topics, bar examiner, considered a controversial
a profile of the legal profession with particular policy issue that had been visited by other
emphasis on law school enrollment, law school jurisdictions. New York is the largest
debt, bar admission trends, and employment. Also jurisdiction in terms of the numbers of
sure to be of great interest are several sessions candidates tested (over 15,000 in 2014),
addressing specific character and fitness and ADA and much of the content of its exam is
issues, as well as sessions discussing the admis- actually drafted by the Board. For these
sion of foreign-trained lawyers and exploring the reasons, the issues central to the admin-
future of tablet technology in testing. Other educa-
istration of the New York Bar Exam, and
tional events sponsored by NCBE include biennial
the policy concerns in New York, tend
academic support conferences directed to law
to be somewhat different from those in
school faculty and administrators to help law
jurisdictions that test fewer applicants
schools maximize their students’ preparation for
and that may rely on NCBE to draft their test questions.
the bar exam, and mini-seminars educating select small
NCBE’s assistance in performing demographic studies, as
audiences on a variety of topics.
well as lending its expertise in analyzing the data received,
Much of NCBE’s important work is done through its was invaluable to the New York Board in considering the
committees. One of my goals this year was to broaden the controversial policy issue.
scope of committee membership by inviting a wider array
A number of state boards, in addition to their policy
of people involved in bar admissions from various juris-
functions, are responsible for evaluating the character and
dictions. Standing committees on which people can serve
fitness of applicants to the bar. NCBE offers investigation
include the following: Character and Fitness, Diversity
services to state bar admission authorities to verify informa-
Issues, Editorial Advisory, Education, Long Range Planning,
tion presented by applicants on their applications for admis-
Multistate Bar Examination, Multistate Essay Examination/
sion to the bar—not only for U.S.-educated applicants, but
Multistate Performance Test, Multistate Professional
also for foreign-educated applicants. Given the complexity
Responsibility Examination, Technology, and the Special
of the verification process, this service saves jurisdictions
Committee on the Uniform Bar Examination. Serving on a
time and resources.
committee affords members the opportunity to learn about
and participate in any of several aspects of bar admissions—
I encourage members of the bar admissions community
whether exchanging ideas about the content of the questions
to become knowledgeable about and involved in NCBE
that appear on NCBE exams and the methods for grading
activities. One of the best ways to do this is to attend NCBE’s
the questions, exploring technological advances in testing
Annual Bar Admissions Conference and to consider serving
and grading, looking at issues that affect the diversity of the
on one of the NCBE committees. I believe that committee
testing population, identifying and planning educational
work is one of the best ways to get to know the organiza-
opportunities for the bar examining community, addressing
tion and that contributing time and talent to a committee,
issues relating to character and fitness, or participating in
with the knowledge that it furthers NCBE’s mission and
decisions concerning the content of this very magazine.
ultimately benefits the profession, can be very rewarding.
NCBE also assists jurisdictions with the more techni-
Best regards to all.
cal aspects of testing and grading—an invaluable service
provided by NCBE’s staff of experienced testing profes-
Sincerely,
sionals. Bar examiners in all jurisdictions face issues that
go far beyond simply writing and grading the bar exam.
Standard setting, reliability and validity of jurisdiction-
drafted tests, and new and different testing methods are just
a few of the issues faced by bar examiners for which NCBE
provides guidance and expertise. For example, a number Bryan R. Williams
Letter from the Chair 3
p ’ p
ReSident S age
by Erica Moeser
Several years ago I was elected that the results of the MBE equat-
to serve on the Board of Trust- ing process were correct, we sent the
ees of the small municipality scores out, and as one jurisdiction after
in which I live. I found it strik- another completed its grading, the
ing that often as soon as new residents impact of the decline in scores became
moved onto one of our Village streets, apparent. Not content to rest on the
they began clamoring to have the street pre-release replications of the results, I
turned into a cul-de-sac, or at the very continued—and continue—to have the
least to have speed bumps the size of results studied and reproduced at the
small Alps installed to calm the traffic behest of the NCBE Board, which is
that moved by at the very same pace as itself composed of current and former
when they had purchased their home. bar examiners as well as bar admission
administrators who are dedicated to doing things
I have recalled that phenomenon over the past
correctly.
few months when thinking of how some legal
educators have reacted to the drop in MBE scores Legal education commentators have raised ques-
earned during the July 2014 test administration. tions about the reliability, validity, integrity, and
The neighborhood street is lawyer licensing, essen- fairness of the test and the processes by which it is
tially unchanged, and the cul-de-sac is the wish for created and scored. One dean has announced pub-
the process to change. Some legal educators have licly that he smelled a rat. As perhaps the rat in ques-
expressed hope that NCBE would confess error in tion, I find it difficult to offer an effective rejoinder.
the equating of that particular July test. Others have Somehow “I am not a rat” does not get the job done.
gone further, calling for an overhaul of the test. A
The pages of this magazine are replete with
few educators (and I treasure them) have pointed out
explanations of how NCBE examinations are crafted
that the test results simply reflect the circumstances
and equated. The purpose of these articles has been
in which legal education finds itself these days. It is
to demystify the process and foster transparency.
the very stability of the MBE that has revealed the
The material we publish, including the material
beginning of what may be a continuing and trou-
appearing in this column, details the steps that are
bling slide in bar passage in many states.
taken for quality control, and the qualifications of
As I have written previously, my first reaction those who draft questions and otherwise contribute
at seeing the results of the July 2014 MBE was one to the process. The words in the magazine—and
of concern, and I acted on that concern long before much more—are available on the NCBE website for
the test results were released. Having nailed down all those who are willing to take time to look.
4 The Bar Examiner, March 2015
The MBE is a good test, but we never rest on our what an examinee knows. We try to use testing time
laurels. We are constantly working to make it better. as efficiently as possible to achieve the broadest pos-
This is evidenced by the fact that the July 2014 MBE sible sampling.
had the highest reliability ever of .92 (“reliability”
With regard to integrity, either one has earned
being a term of art in measurement meant to commu-
the trust that comes with years of performance or
nicate the degree to which an examinee’s score would
one hasn’t. Courts and bar examiners have devel-
be likely to remain the same if the examinee were to
oped trust in the MBE over the 40-plus years it has
be tested again with a comparable but different set
been administered. Some legal educators have not.
of questions). The MBE is also a valid test (another
Frankly, many legal educators paid little or no atten-
measurement term meant to communicate that the
tion to the content and scoring of bar examinations
content of the test lines up with the purpose for which
until the current exigencies in legal education brought
the test is administered—here the qualification of an
testing for licensure into sharp focus for them.
entry-level practitioner for a general license to prac-
tice in any field of law). Of immediate interest to us at NCBE is the result
of the introduction of Civil Procedure to the roster
As to the validity of the MBE, and of the palette
of MBE topics that occurred this February. Civil
of four tests that NCBE produces, the selection of
Procedure found its way onto the MBE by the same
test material must be relevant to the purpose to be
process of broad consultation that has marked all
served, here the testing of new entrants into a licensed
other changes to our tests as they have evolved. The
profession. The collective judgments of legal educa-
drafting committee responsible for this test content is
tors, judges, and practicing lawyers all contribute to
fairly characterized as blue-ribbon.
the construction of the test specifications that define
possible test coverage. Ultimately a valid and reliable I recognize and appreciate the staggering chal-
test that is carefully constructed and carefully scored lenges facing legal education today. I recently heard
by experts in the field is a fair test. an estimate that projected Fall 2015 first-year enroll-
ment at 35,000, down from 52,000 only a few years
Those unfamiliar with the job analysis NCBE
ago. This falloff comes as more law schools are
conducted about three years ago may find it useful to
appearing—204 law schools are currently accredited
explore by visiting the Publications tab on the NCBE
by the American Bar Association, with several more
website. At the time of its release, I commended the
in the pipeline. Managing law school enrollment in
report to both bar examiners and legal educators
this environment is an uphill battle. Couple that with
because the survey results spoke to the knowledge
regulatory requirements and the impact of law school
and skills new lawyers felt to be of value to them as
rankings, and one wonders why anyone without a
they completed law school and struck out in various
streak of masochism would become a law school
practice settings. The job analysis effort was consis-
dean these days. The demands placed on today’s law
tent with our emphasis on testing what we believe the
school deans are enormous.
new lawyer should know (as opposed to the arcane or
the highly complex). Of course, any bar examination NCBE welcomes the opportunity to increase com-
lasting a mere two days does no more than sample munication with legal educators, both to reveal what
President’s Page 5
we know and do, and to better understand the issues about who passes and who fails the bar examination
and pressures with which they are contending. We to the law schools from which examinees graduate.
want to be as helpful as possible, given our respec- At this writing all but a few states make this infor-
mation available to law schools. NCBE has offered
tive roles in the process, in developing the strategies
to transmit the information for jurisdictions that lack
that will equip current and future learners for swift
the personnel resources to do so. A chart reflecting
entry into the profession.
the current state of disclosures appears below. It
Over the past two years, jurisdictions have updates a chart that appeared in the December 2013
heeded the call to disclose name-specific information issue.
Summary: Pass/Fail Disclosure of Bar Exam Results
(Updated chart from December 2013 Bar Examiner)
These jurisdictions
These jurisdictions
automatically disclose
automatically disclose These jurisdictions require
name-specific pass/fail These jurisdictions
name-specific pass/fail all law schools to request
information to in-state law provide limited
information to the law schools name-specific pass/fail
schools. Out-of-state law or no disclosure.
from which test-takers information.
schools must request the
graduate.
information.
California Arkansas Alaska Disclosure with limitations
Connecticut Florida Arizona Hawaii*
Georgia Indiana Colorado New Jersey†
Illinois Kentucky Delaware Texas‡
Iowa Louisiana District of Columbia No disclosure
Kansas Minnesota Idaho Alabama
Maine Mississippi Michigan Guam
Maryland North Carolina Nevada Northern Mariana Islands
Massachusetts North Dakota Pennsylvania Puerto Rico
Missouri Ohio South Carolina Republic of Palau
Montana Rhode Island South Dakota
Nebraska Tennessee Virgin Islands
New Hampshire West Virginia
New Mexico Wyoming
New York
Oklahoma
Oregon
Utah
Vermont
Virginia
Washington
Wisconsin
*Hawaii releases passing information only.
†If the applicant executes a waiver, New Jersey will release information to law schools on request.
‡Texas will disclose name-specific pass/fall information on request of the law school unless the applicant has requested that the information not be released.
NCBE is currently disseminating name-specific pass/fail information on behalf of Georgia, Iowa, Maine, Missouri, Montana, New Mexico, Oregon, and Vermont.
6 The Bar Examiner, March 2015
I am delighted to announce that Kansas has Scott, who served for over 40 years as the Secretary-
become the 15th state to adopt the Uniform Bar Treasurer of the Virginia Board of Bar Examiners,
Examination. The Kansas Supreme Court acted this was both a founder of, and a mainstay in, the
January on a recommendation of the Kansas Board Committee of Bar Admission Administrators, now
titled the Council of Bar Admission Administrators.
of Law Examiners. The first UBE administration in
His was an important voice as the job of admissions
Kansas will occur in February 2016, and Kansas will
administrator became professionalized. Scott was
begin accepting UBE score transfers in April of this
selected as a member of the NCBE Board of Trustees
year.
and served the organization well in that capacity. He
In closing, I would like to reflect on the loss was a leader and a gentleman, and it saddens those
of Scott Street to the bar admissions community. of us who knew him to say good-bye.
The December 2014 Bar Examiner included a chart showing the change in total first-year enrollment from 2010 to 2013 as provided by the
ABA Section of Legal Education and Admissions to the Bar and the LSAT 25th percentile for each year. One law school informed us of a dis-
crepancy in need of correction; corrected information appears in the chart below.
Change in First-Year Enrollment from 2010 to 2013
and Reported Changes to the LSAT Score at the 25th Percentile
(Corrections to first-year enrollment data in the December 2014 Bar Examiner)
Total First-Year Enrollment % 25% LSAT Score
Change, 2010
2010 2011 2012 2013 2010 2011 2012 2013
LAW SCHOOL to 2013
DAYTON, UNIVERSITY OF 207 177 133 100 -52% 150 148 146 145
TOTALS: 52,106 47,276 43,155 39,674 -23.86%
President’s Page 7
2014 Statistics
2014 S
tatiSticS
This section includes data, by jurisdiction, on the following categories for 2014:
• the number of persons taking and passing bar examinations;
• the number taking and passing bar examinations categorized by source of legal education;
• the number of and passage rates for first-time exam takers and repeaters, both overall and
for graduates of ABA-approved law schools;
• the number of and passage rates for graduates of non-ABA-approved law schools by type
of school;
• the number of attorney candidates taking and passing special Attorneys’ Examinations;
and
• the number of disbarred or suspended attorneys taking and passing examinations as a
condition of reinstatement.
Also included are the following:
• a chart showing a longitudinal view of bar passage rates, both overall and for first-time
takers, over a 10-year period;
• a five-year snapshot, by jurisdiction, of the number of persons admitted to the bar by
examination, on motion, by transferred Uniform Bar Examination (UBE) score (data col-
lection started by NCBE in 2013), and by diploma privilege, as well as the number of
individuals licensed as foreign legal consultants; and
• a chart displaying relative admissions to the bar in 2014 by examination, on motion, and
by diploma privilege.
Data for the first 10 charts were supplied by the jurisdictions. In reviewing the data, the reader
should keep in mind that some individuals seek admission in more than one jurisdiction in a given
year. The charts represent the data as of the date they were received from jurisdictions and may
not reflect possible subsequent appeals or pending issues that might affect the overall passing
statistics for a given jurisdiction. Statistics are updated to reflect any later changes received from
jurisdictions and can be found on the NCBE website, www.ncbex.org.
The following national data are shown for the administrations of the Multistate Bar Examination
(MBE) and the Multistate Professional Responsibility Examination (MPRE):
• summary statistics,
• score distributions,
• examinee counts over a 10-year period, and
• mean scaled scores over a 10-year period.
The use, by jurisdiction, is illustrated for the MBE, the MPRE, the Multistate Essay Examination
(MEE), and the Multistate Performance Test (MPT).
8 The Bar Examiner, March 2015
2014 S c
tatiSticS ontentS
Persons Taking and Passing the 2014 Bar Examination .......................................................................10
Persons Taking and Passing the 2014 Bar Examination by Source of Legal Education ..................12
First-Time Exam Takers and Repeaters in 2014 .....................................................................................14
2014 First-Time Exam Takers and Repeaters from ABA-Approved Law Schools ...........................18
2014 Exam Takers and Passers from Non-ABA-Approved Law Schools by Type of School .........22
Attorneys’ Examinations in 2014 ..............................................................................................................23
Examinations Administered to Disbarred or Suspended Attorneys as a Condition of
Reinstatement in 2014 ................................................................................................................................23
Ten-Year Summary of Bar Passage Rates, 2005–2014 ...........................................................................24
Admissions to the Bar by Type, 2010–2014 ............................................................................................28
2014 Admissions to the Bar by Examination, on Motion, and by Diploma Privilege .....................31
Multistate Bar Examination .....................................................................................................................32
Jurisdictions Using the MBE in 2014 ..................................................................................................33
2014 MBE National Summary Statistics (Based on Scaled Scores) ................................................34
2014 MBE National Score Distributions .............................................................................................34
MBE National Examinee Counts, 2005–2014 ....................................................................................35
MBE National Mean Scaled Scores, 2005–2014 .................................................................................35
Multistate Professional Responsibility Examination .........................................................................36
Jurisdictions Using the MPRE in 2014 (with Pass/Fail Standards Indicated) ...........................37
2014 MPRE National Summary Statistics (Based on Scaled Scores) ............................................38
2014 MPRE National Score Distributions ........................................................................................38
MPRE National Examinee Counts, 2005–2014 ................................................................................39
MPRE National Mean Scaled Scores, 2005–2014 ............................................................................39
Multistate Essay Examination .................................................................................................................40
Jurisdictions Using the MEE in 2014 ................................................................................................41
Multistate Performance Test ....................................................................................................................42
Jurisdictions Using the MPT in 2014 ................................................................................................43
2014 Statistics 9
2014 Statistics
Persons Taking and Passing the 2014 Bar Examination
February July Total
Jurisdiction Taking Passing % Passing Taking Passing % Passing Taking Passing % Passing
Alabama 230 127 55% 522 337 65% 752 464 62%
Alaska 45 31 69% 74 48 65% 119 79 66%
Arizona 397 253 64% 667 456 68% 1,064 709 67%
Arkansas 139 88 63% 216 135 63% 355 223 63%
California 4,578 2,073 45% 8,504 4,135 49% 13,082 6,208 47%
Colorado 391 280 72% 847 631 74% 1,238 911 74%
Connecticut 278 199 72% 457 353 77% 735 552 75%
Delaware No February examination 192 121 63% 192 121 63%
District of Columbia 297 136 46% 264 87 33% 561 223 40%
Florida 1,315 820 62% 3,214 2,122 66% 4,529 2,942 65%
Georgia 574 364 63% 1,311 967 74% 1,885 1,331 71%
Hawaii 117 75 64% 169 116 69% 286 191 67%
Idaho 52 36 69% 113 76 67% 165 112 68%
Illinois 984 740 75% 2,398 1,940 81% 3,382 2,680 79%
Indiana 266 162 61% 552 400 72% 818 562 69%
Iowa 97 83 86% 253 206 81% 350 289 83%
Kansas 157 135 86% 188 148 79% 345 283 82%
Kentucky 198 152 77% 388 295 76% 586 447 76%
Louisiana 398 190 48% 762 532 70% 1,160 722 62%
Maine 61 41 67% 119 87 73% 180 128 71%
Maryland 567 342 60% 1,537 1,102 72% 2,104 1,444 69%
Massachusetts 679 414 61% 2,096 1,598 76% 2,775 2,012 73%
Michigan 681 444 65% 953 604 63% 1,634 1,048 64%
Minnesota 225 175 78% 747 593 79% 972 768 79%
Mississippi 111 90 81% 183 143 78% 294 233 79%
Missouri 262 211 81% 792 676 85% 1,054 887 84%
Montana 54 36 67% 126 81 64% 180 117 65%
Nebraska 42 18 43% 171 131 77% 213 149 70%
Nevada 224 128 57% 332 191 58% 556 319 57%
New Hampshire 61 46 75% 161 134 83% 222 180 81%
New Jersey 1,015 613 60% 3,297 2,445 74% 4,312 3,058 71%
New Mexico 137 111 81% 203 171 84% 340 282 83%
New York 4,032 1,902 47% 11,195 7,265 65% 15,227 9,167 60%
aExaminations in Puerto Rico are administered in March and September.
10 The Bar Examiner, March 2015