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This week, nearly 50,000 law graduates across the country will sit down en masse to take the test that will help determine if years of schooling and thousands in tuition were worth it. Today graduates will sharpen their No. 2 pencils for the Multistate Bar Examination, the multiple-choice portion of the bar exam composed of 200 bedeviling questions covering everything from botched widget designs to bumbling bank robbers. And while test takers at this point in their education most likely know plenty about the Rule in Shelley’s Case, largely unknown are the details about a relatively small nonprofit group in Madison, Wis., that helps shape their destiny. The National Conference of Bar Examiners is the 50-employee company that designs and writes the MBE, used by 48 states to test bar applicants on their knowledge of torts, contracts, constitutional law, criminal law, property and evidence. “We’re so well aware of how much is riding on the tests,” said Erica Moeser, president of the NCBE, which sells the MBE to states twice annually. “There’s a little bit of apprehension for us before, during and after.” Each year, state boards of bar examiners administer the MBE to more than 70,000 applicants, who spend six hours plowing through the multiple-choice mindbenders. Since 1972, the first year the NCBE offered the MBE, some 1.87 million lawyer hopefuls have taken the test. The company also develops and writes three other tests � the Multistate Essay Examination, the Multistate Performance Test and the Multistate Professional Responsibility Examination � used by a variety of states. Besides giving the MBE, many states twice each year conduct a second day of testing, usually based on a number of essay questions local bar examiners have developed on state law. Some states also test on a third day, which often includes a practical-skills component. With a $10 million annual budget, the NCBE’s staffers handle its daily operations, including the investigational services it provides to states running background checks on their bar applicants. But much of its test-writing duties are performed by law professors, attorneys and judges who serve on the drafting committees that compose the 200 “items” on the MBE, which test law graduates’ command of black letter law. Many of the drafters are professors from respectable but not top-tier law schools. They generally receive a $6,000 honorarium each year for their work, plus paid expenses for attending two meetings each year, Moeser said. The meetings are sometimes held at the NCBE offices and at other times at offsite locations, she said. The drafters generally work ahead, meaning that they developed much of this week’s test last year. Sean Connelly, a partner with 13-attorney litigation practice Reilly Pozner & Connelly in Denver, meets with fellow drafters twice each year as the chairman of the criminal law drafting committee. A former attorney with the U.S. Department of Justice who worked on the 1995 Oklahoma City bombing case, Connelly said he spends eight to 10 days each year helping compose the 30 questions on the MBE devoted to criminal law and procedure. Striking the appropriate degree of difficulty when devising the questions is a big challenge, he said, as is making sure that the law on which the exam is testing applies to all the states using the MBE. The MBE is notorious for questions that appear to have two correct multiple-choice answers. And though not admitting that the test lives up to such a reputation, Connelly did say that questions with answers in which “one is clearly correct and all the others are wrong is not an ideal item.” Much of the NCBE’s funding comes from its sales of the MBE and the other tests that it sells to states, which administer the bar exams on the last Wednesdays in February and July. The company, a 501(c)(3) nonprofit corporation, sells each MBE test for about $50, Moeser said. NO GLAMOROUS TASK Composing the MBE “is not very glamorous,” said David Boyd, chairman of the MBE committee. He has worked with the NCBE in various positions since the mid-1980s, he said, mainly for the purpose of serving the profession. In his present role, he handles the policy matters of test administration, including security and uniform instructions. Boyd, a partner in the Montgomery, Ala., office of 200-attorney Balch & Bingham of Birmingham, Ala., said that as with licensing tests in other professions, the MBE’s function is to protect the public by ensuring that those who pass the bar are minimally competent. “It doesn’t measure or predict who will be a good lawyer or a great lawyer,” he said, adding that it merely helps identify those “who at the time they take the exam” demonstrate the skills necessary for admission. But Eileen Kaufman, president of the Society of American Law Teachers, said that the NCBE and state bar examiners can do better. Her organization and others have been highly critical of the MBE, which, she said, bears little relationship to the practice of law. Kaufman’s sentiment, and that of other critics of the bar exam, is part of a long-running concern about the lack of practical skills among law graduates, which was widely publicized in the 1992 MacCrate Report. In general, the report, commissioned by a task force of the American Bar Association, addressed the gap between legal education and the practice of law. A major reason for the MBE’s shortcomings, said Kaufman, is that the different constituencies of the legal profession � professors, bar examiners, lawyers and judges � fail to communicate with each other about the knowledge and skills that incoming lawyers need to demonstrate for admittance. “We never talk to each other,” said Kaufman, a professor at Touro College Jacob D. Fuchsberg Law Center in Huntington, N.Y. Kaufman said that she would like to see more disclosure from the NCBE about who is drafting the MBE questions and the process for composing questions. The NCBE declined to provide the names of individuals who serve on its drafting committees, nor did it provide a reason for nondisclosure. The names of some committee members were obtained independently. Several drafters did not return phone calls or e-mails seeking interviews for this story. About 36 people work as drafters for the MBE, the majority of whom are law professors, according to Moeser. The length of service on the committees, which are organized by the legal subjects tested on the MBE, average five years, she said. Moeser said she makes the final decision regarding appointments to drafting committees. The NCBE also has a 12-member board of trustees. Most of the trustees, whose names are publicly available, are practitioners in medium-sized law firms across the country. TRANSPARENCY AN ISSUE New York University School of Law professor Norman Dorsen said that transparency at the NCBE is necessary to address any flaws in the MBE, including bias. “People have an enormous interest in this � not just the lawyers, but also consumers,” Dorsen said. At the conclusion of this week’s bar exams, an Iowa City, Iowa, company, American College Testing Inc., will score the results of the MBE. However, before those scores are finalized, the NCBE will oversee a preliminary item analysis, which is designed to identify if test-takers consistently picked the same wrong choice on a question, Moeser said. If a large number of test-takers selected the same wrong answer, the NCBE may decide to accept two answers, she said. Such was the situation in February 2003, Moeser said, when ACT had to re-key the MBE scoring sheet. Following a preliminary item analysis, the NCBE decided to accept two answers to a particular question. However, ACT incorrectly keyed the second answer, she said. For example, the question that should have accepted answers “A” and “C” was keyed to accept answers “A” and “D.” The blunder was discovered in May of that year, after most states had released the results to test-takers. It required the re-scoring of more than 20,000 tests and left some graduates wondering if they would be stripped of their licenses. Moeser recalled the day she learned of the error. “I remember where I was,” she said. “It was like the day Kennedy was shot.” Leigh Jones is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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