Erica Moeser has long been the face of the National Conference of Bar Examiners—the organization that designs and administers the all-important Multistate Bar Exam used by jurisdictions nationwide.
On Aug. 21, she’ll put down her No. 2 pencil, hand in her Scantron sheet and retire from Wisconsin-based NCBE after 23 years as president. She will be replaced by current director of test operations Judith Gundersen, who has worked at the conference since 2000.
During her tenure, Moeser oversaw a push to professionalize how the test is put together and launched the Uniform Bar Exam drive. The uniform exam allows takers to transport their scores to participating jurisdictions without having to retake the test, and 28 different jurisdictions have signed on since 2010.
More recently, Moeser has served as the bar exam’s defender-in-chief against critics who blame the test itself for plummeting pass rates across the country over the past three years—a decline she attributes to law schools lowering their admission standards. She also has challenged naysayers who claim the bar exam doesn’t assess the skills and knowledge lawyers need in practice, and she has been a vocal proponent of the American Bar Association’s ongoing effort to raise the bar pass minimum that law schools must meet to stay accredited.
Perhaps more than anyone else, Moeser has promoted the idea that the bar exam is fundamentally a tool to protect the public from incompetent lawyers. We caught up with Moeser recently to discuss her departure and the future of the bar exam. Her answers have been edited for length and clarity.
Why are you stepping down now?
I think the time has come. I turned 71 on the first of June, and at some point you think, “Life is finite,” and you want to see what else there is to do when you aren’t doing this all the time.
The bar exam has taken a lot of heat lately with pass rates falling. Some people blame the test itself. What do you want them to know?
It’s a natural phenomenon to blame others when things don’t go well. The test has been an appealing target. But the test is really a mirror of what’s going on in legal education today, and perhaps in higher education generally. The test itself is robust. It’s sound. Anyone may not like the results, but that doesn’t mean the instruments used to produce those results are faulty or flawed. That said, the bar exam can always get better. Part of what we’re about as an organization is continuing to challenge assumptions about what we test and how we test it to make sure we don’t sit through the need for change.
One thing I think that’s lost on a lot of people who look at the naked percentages of people passing and failing is that this downturn that has affected legal education has produced new numbers of people repeating the exam—that is people who are unsuccessful the first or second time—who swell the numbers of people sitting. We can already predict their performance will be weaker, which affects the overall pass rate. Perhaps there will be some comfort, even to the critics, to take a look at the first-time taker pass rates.
The bar examiners are not the hard-hearted fiends that some in legal education would like to paint us. We’re trying to do a good job and get people a fair measure before they enter our profession.
How has the bar exam changed over the past 23 years?
The most significant change is one that occurred on my watch: The test became truly professionalized. Some of these tests didn’t exist, like the Multistate Performance Test, and the Uniform Bar Exam. When I went to work at the conference, all of the testing work was performed under contract by outside contractors, and there wasn’t a single measurement person on the staff of the National Conference of Bar Examiners.
In many respects, it fulfilled my image of Oz: The National Conference of Bar Examiners was a big name with, literally, a little woman sitting behind a curtain on the throne. Over time, because of very good advice I received from other people, we brought all test development in-house, and we brought test administration in house. Where we had one lawyer working as the director of testing, working remotely, we now have in-house eight or ten people—a majority of whom have Ph.Ds.—who are doing measurement. The test, as a result, is a much better quality than it was.
How close do you think we are from a truly uniform bar exam?
I would say we’re maybe, 35 or 40 percent of the way. We have 28 jurisdictions, so more than half, in the program. And several others are using all the components but have not made the decision to adjust to the uniform bar exam for one reason or another. But if you’re asking me how far we’ve gone on the timeline to get there, I think there will be passionate holdouts who will keep this from being a uniform test across the country. But I think it’s inevitable that the examination will get there.
People like to note that you never actually took the bar exam. You were admitted through Wisconsin’s unique diploma privilege program. Over the years, did you ever take the test just out of curiosity?
No. I subjected myself to small parts of it during exercises where we were evaluating questions. But at this stage in the game, I’m sure I’d set a new low if I took the test. I think what people fail to appreciate is when you work in bar admissions for 40 years, you do learn a thing or two. The fact that I didn’t take the bar exam is probably not a fatal flaw.
The State Bar of California is currently gathering public opinion on a proposal to lower its notoriously high cut score from 144 to 141. What do you think they should do?
Personally, I’ve thought that the California cut score was high and probably would benefit by a review, and that a review would yield a result that would suggest it should be lower. I gather that’s what has happened, which I think is to the benefit. I don’t see the era of the uniform cut score occurring, certainly, in my lifetime. But I do see some convergence of cut scores.
What’s your best piece of advice for people taking the bar?
It’s so hard to pick one, but start thinking about it as early in law school as possible, and not in the context of gimmicks and bar review advice as much as seeking feedback while in law school and refining written skills. Writing is the thing that dooms so many candidates.
Contact Karen Sloan at email@example.com. On Twitter: @KarenSloanNLJ