Uniform Bar Exam -- Not Likely

Thanks to Calbarrepeaterblawg, I came across this article about a move to create a national Uniform Bar Examination. The UBE would include the current MBE and, so it seems, essays based on federal law.

The article at issue is brief, but states that there is a movement afoot to create a single bar exam that would be accepted in all states and thus let attorneys move between states easily and practice in all states that accept scores from the UBE. Now, as a person who took the Oregon Bar Exam and then had to take the California Bar Exam when I relocated, I can appreciate the utility of a UBE. In fact, I am in favor of it. I certainly would have been able to get a job much quicker than the 10 months it took between my move and my receipt of California bar passage results.

The pragmatist in me says that this is not something that the "several states" will ever adopt on their own. As the article says, the state bars of New York, California, Texas, and Florida have not expressed support for this idea. Why should they? These states are already over-saturated with lawyers, and permitting people from other states to move in without jumping through the hoops established by the Guild will make it even worse. "It will drive down fees and increase competition." "Increased competition will lead to sub-par and even unethical legal work and further decrease the reputation of the legal community as a whole." Of course, the federal government could probably use its Commerce Clause power and require such a thing; after all, the practice of law certainly affects interstate commerce, so regulation of the practice of law is within the purview of Congress.

As to having a test that focuses on federal law, I wonder about the wisdom of this. Perhaps the best way to create a national bar examination is to determine which are the top, say, ten areas of law used by practicing attorneys, and then test on those. So, criminal law, employment law, business entities, and family law would likely be included. The test could then focus on the majority rule and the top two minority rules in the various areas of law. It could also focus on the federal law for each area, if there was such law. Thus, the exam would test federal employment law, but there is no federal family law (other than tax law) to test. If the idea of the bar exam is to certify "minimally competent" lawyers, then this approach would be best. If, on the other hand, the idea is to make entry into the profession difficult in order to keep fees high, then such an approach is counter-productive.

In short, a UBE would be beneficial for individual attorneys, but if we are going to make such a change, let's make sure the test actually forces applicants to learn useful information rather than the nonsense learning currently required by bar examiners. (Or maybe, since the advent of the internet, we should all just pass a legal research test.)


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