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Editor: Paul L. Caron
Pepperdine University School of Law

Tuesday, May 16, 2017

Chair Of Legal Ed Section Weighs In On ABA President's Attempt To Strip Non-Accreditation Activities From Section, 'Urban Legend' That Shift To MBE Has Caused Slippage In Bar Exam

ABA Section On Legal Education (2016)Following up on my previous posts (links below):

Greg Murphy (Chair, ABA Section of Legal Education and Admissions to the Bar), The Section Lives, and a Few Words on Bar Admissions and Examiners:

To accomplish the proposed changes in our Section described above, amendments to the ABA Bylaws would have been required. However, the deadline for the submissions of proposals for changes to the ABA Bylaws in advance of the August 2017 annual meeting was March 10, 2017. I am informed that no proposals for amendments relating to our Section were submitted.  Therefore, the first section of the ABA, the Section of Legal Education and Admissions to the Bar, lives on.

Speaking of bar admissions, and since “Admissions to the Bar” is in our Section’s name, many of the readers of Syllabus are already aware that the House of Delegates adopted a resolution urging the bar admitting jurisdictions to adopt expeditiously the Uniform Bar Examination (UBE). The resolution enjoyed the enthusiastic support of the ABA’s Young Lawyers Division and Law Student Division, and passed the House overwhelmingly. Support of the UBE is now official ABA policy. ...

It bears noting that an urban legend seems to persist that recent disappointing bar passage results in some jurisdictions are somehow tied to jurisdictions adopting the UBE.  That is both a legend, and a myth.

New York, for example, did not experience a decline.  The question of why bar examination performances have declined is complex.   Many factors are in play.  Some jurisdictions raised their minimum passing scores when they adopted the UBE.  Minimum passing scores do indeed vary across the country, from a high of 145 on a 200-point scale to a low of 129.  The difference is substantial. Where cohorts fall on the bell curve of score distribution varies from jurisdiction to jurisdiction. Cohorts of examination takers vary from jurisdiction to jurisdiction.  Some cohorts are more gifted with more native talent and went to schools that did a better job of preparing them than in others. It is also true that some schools have gone deeper into their applicant pools and taken greater risks than they have in the past in order to fill out their classes.  It is not terribly surprising that we see some correlation in bar examination performances three years later. ...

Psychometricians, those studying the science of the measurement of human performance, emphasize the importance of “validity” and “reliability” in high-stakes examinations. When one asks whether an examination is valid, one is asking whether it tests what it ought to test. When one asks about the reliability, one is asking about the repeatability of the score earned. It should not matter what edition of a test one takes.The reliability coefficient of the MBE regularly exceeds an impressive .90. Psychometricians consider .80 to be the  “gold standard” for high-stakes testing. One could have a reliable test that is not valid, but one could not have a valid test if it is not reliable. Eliminate the MBE from the bar examination and one would interject a serious element of arbitrariness to the pass/fail decision because a limited number of essay scores, by their nature, are unreliable.

Drafting committees, each of which has a majority of legal academics and a minority of practitioners and judges writing the test items, creates the NCBE tests. The urban legend that bar examiners are flinty-eyed practitioners bent on keeping newly graduated lawyers out of the profession is also a myth.The committees strive to test what newly licenses lawyers ought to know. No test is perfect, but the UBE is a vast improvement on bar examinations from the "good old days." Perhaps with the growth of the use of artificial intelligence, avenues for even more sophisticated bar examining and admissions protocols may emerge.

I mentioned earlier recent declines in bar examination performance. I am pleased to say that in my work on the Council, I have seen evidence that many schools are renewing their commitments to achieving the goal of preparing their students to be admitted to the bar upon graduation. This is all to the good, and in the tradition of the finest legal education system in the world.

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