Recently, retired judge Alan D. Scheinkman and New York State Bar Association past president Michael Miller penned an article discussing why the Uniform Bar Exam (UBE) is harmful to the preparation of New York state lawyers. The pair argued that the exam fails to test on New York-specific matters, leaving new admittees unprepared to represent clients in the state.
As young lawyers who co-authored the American Bar Association’s resolution on encouraging states to adopt the UBE, we are aware of the critiques of the UBE and of the New York law exam component. However, we couldn’t disagree more with the assertions in that column.
Scheinkman and Miller do make the case for the exam. Their issue appears not to be with the UBE, but with the state-specific examination. Those concerned that new admittees are unprepared for the practice of law in New York state should consider increasing the rigor on the New York-specific aptitude required on the examination, not removing the ability of young lawyers to utilize their score to practice in other areas.
If we’re accepting the premise that this component is not satisfactorily assuring knowledge of New York law, why are we not addressing this component? However, those advocating for dumping the UBE propose throwing the proverbial baby out with the bath water.
Findings of the NYSBA Task Force
The NYSBA Task Force on the New York Bar Exam is a group that includes one young lawyer and no law students in its ranks. The task force concluded that the “law of nowhere” has left lawyers untrained and unable to practice law in New York.
Bar takers, in most cases, sit through three years of law school that are meant to be challenging and rigorous. If law school is supposed to prepare its students to be successful lawyers, it appears that they should be able to learn the “law of nowhere” for the bar exam and then learn New York law in their practice.
To think that anyone has memorized each law that they need to practice in their specialty runs far afoul of reality. Under this unattainable reality, you couldn’t have a successful practice as a young lawyer for several years after admission until you had passed a second competency level.
Another argument against the UBE is that of public protection, that is, requiring lawyers to know New York laws. Specifically, bar takers should either take enough credits in courses with New York law content or spend significant time during their final two years of law school in supervised practice in order to be admitted without having to take an examination.
While we commend Scheinkman and Miller for thinking creatively about ways law school graduates could be admitted to practice without the bar exam, we’d suggest that this falls short of the goal. Under this theory, students who land an internship with a federal governmental office, such as a U.S. Attorney’s Office, wouldn’t be able to count their time toward diploma privilege. Some of the best practical experience available to law students would be in this setting.
The limited scope and fixation with only New York opportunities will force a new crop of law students to choose between top level, highly coveted opportunities and ones that count for them to be admitted to the bar. Shouldn’t we welcome the best to the bar?
Teaching To the Test?
The final argument against the UBE is that schools are only teaching to the test and students are failing to take coursed on New York practice. Critics add that law students are “incentivized to study that which is most relevant to their most immediate objective—passing the bar exam.”
This is the inherent problem with arguing a New York-specific exam. It’s what then-Chief Judge of the State of New York Jonathan Lippman poignantly phrased in his 2015 Law Day address: “the Uniform Bar Exam addresses so many of these issues for students who take the bar exam in one state, but find a job in another state. In the past, they had to study for, pay for, wait for, and take multiple bar exams with uncertain results.”
Maybe when Scheinkman and Miller were admitted to the bar the most immediate objective was passing the bar—but it wasn’t for our classmates and it’s likely not for law graduates now. Navigating the job market, taking out more debilitating debt to finance bar study; finding sufficient quiet space to sit for a remote exam—those are, and have been, the most pressing concerns for law school graduates.
We concede that the UBE is not perfect, but we must balance the needs of the public, the needs of the profession, and the need for a bar admissions process that allows for mobility, flexibility, and opportunity to grow. Eliminating the UBE doesn’t make New York the international gold standard; it takes the bar out of the fiat and back to the silver standard.
This column does not necessarily reflect the opinion of The Bureau of National Affairs,Inc. or its owners.
Josephine M. Bahn is chair-elect of the American Bar Association Young Lawyers Division. She will chair the NYSBA Young Lawyers Section in 2023-24.
Chris S. Jennison is principal author of the American Bar Association’s resolution on encouraging the adoption of the Uniform Bar Examination. He is a former member of the ABA Board of Governors and just finished his term as speaker of the ABA YLD Assembly, the principal policy body for young lawyers.