Since July 2016, New York law has not been tested on the bar exam. As of that test administration, New York switched to the Uniform Bar Exam, which consists of multiple choice, essay, and performance questions developed by the National Conference of Bar Examiners. The UBE tests what the National Conference calls “general principles” of law and legal skills. These broad, general concepts are not state-specific. The UBE results in a score that can be ported from one UBE state to another. In theory, this helps lawyers move from one state to another without needing to sit for another bar exam.
But the UBE has had unintended consequences in New York. The NYSBA Committee on Legal Education and Admission to the Bar surveyed the 15 law schools in New York and discovered that there was a precipitous drop in New York Practice course enrollments since the adoption of the UBE: 77 percent fewer students are graduating New York schools without having taken at least a full semester studying the N.Y. Civil Practice Law and Rules. In comparison, there was only a 2 percent drop in overall law school enrollment during this time. And we’ve heard anecdotally that professors teaching subjects like Trusts and Estates and Family Law have moved away from state law and to teaching broader, “majority rule” or uniform law concepts in their subjects to align with coverage on the bar exam.
The bar exam is as much a signaling device as anything else. It communicates to students the subjects that are important for licensure and, in turn, for practice. When the bar exam ceases to test state law subjects, it is no wonder that enrollment in courses like New York Practice plummet. While it is true that law faculty could decide whether to require their students to take a New York Practice course, other state law is arguably critical to the successful practice of law. Criminal law; family law; wills, trusts, and estates; real property; corporate formation, operation, and dissolution; and, of course, civil litigation are all heavily grounded in state law. However, the textbooks that are nearly always assigned for these courses in law school include cases from a variety of jurisdictions. Students lose out in seeing the state law context in which cases are decided. If state law is not taught in law school and tested on the bar exam, how will new attorneys know how to represent clients in areas governed by state law?
On the other hand, those who favor the UBE point out that a portable bar exam score has great benefits to new law school graduates, who are able to more easily find employment. 34 jurisdictions (32 states plus the District of Columbia and Guam) now accept the UBE, with more jurisdictions signing on each year. We may soon be the point of having a truly national bar exam. As to state law, UBE states are free to have a state jurisdiction-specific component to the bar exam. New York does so. Students must separately take the New York Law Course and pass the New York Law Exam. The course is a 15-hour, online video series on state law topics, including the CPLR. The exam is an online, open book, multiple choice question test of state law topics.
UBE proponents note that the 77 percent drop in New York Practice enrollments in law schools must be put in context. Prior to the adoption of the UBE, only about 16 percent of New York law students took a CPLR course. And about half of attorney applicants who sit for the bar exam come from out of state schools that do not even offer New York Practice courses. (On the other hand, these applicants would likely have gotten many hours of CPLR instruction through their bar preparation courses.) And if New York schools believe that knowledge of the CPLR or other state law issues is so important, they are free to include them in their learning outcomes and make completion of New York Practice and other such courses degree requirements for graduation.
How important is state law to practice? To what extent should law schools teach and test state law? What about attorneys who are educated out-of-state or who will not be practicing in state court? To what extent is attorney mobility across state lines to be encouraged or discouraged? Are the New York Law Course and New York Law Exam sufficient to ensure minimal competency for licensure? What is the role of bar preparation courses and continuing legal education providers? Does all of this put too much weight on the bar exam to begin with? Should we consider other types of licensing pathways, such as apprenticeship or the Daniel Webster Scholars Honor Program in New Hampshire? What does the practicing bar expect from law schools and from new lawyers?
These are important issues for the legal academy, the profession, and—most importantly—the clients who will be served by the lawyers who are educated and licensed under this system.
Our NYSBA committee is proud to be hosting a program at the NYSBA Annual Meeting that will explore these and other issues, and we invite members of the practicing bar to participate in the dialogue. “A Question of New York Law: Should It Be Taught in Law Schools and Tested on the Bar Exam?,” sponsored by the Committee on Legal Education and Admission to the Bar, will be held on Wednesday, Jan. 16, 2019, from 10:00 a.m. to noon. Registration is required at nysba.org. Panelists include Judge Jenny Rivera (New York Court of Appeals), Andrea Alonso (Morris, Duffy, Alonso & Faley), Dean Mary Lu Bilek (CUNY Law School), and Prof. Patrick M. Connors (Albany Law School). This will be an interactive program that will give members of the audience an opportunity to share their views on these issues.
Larry Cunningham is Associate Dean for Assessment and Institutional Effectiveness and Professor of Legal Writing at St. John’s Law School. Patricia Salkin is Provost, Graduate and Professional Divisions, Touro College. They are co-chairs of the New York State Bar Association Committee on Legal Education and Admission to the Bar. Their views do not necessarily reflect those of the NYSBA or the committee.