In-Depth: The American Bar Exam

Confused about the differences between the UBE and MBE? Don’t know if you’re eligible to take the bar exam? You’re not alone. Here’s a guide to help LL.M. students and graduates navigate the US bar exam.

Becoming a lawyer in the United States is a notoriously arduous process, due in no small part to the behemoth bar exam. The complexity is exacerbated by the fact that not everything is standardized; states have their own requirements and standards for eligibility and passage. While this makes the bar particularly difficult to navigate for foreign nationals looking to practice in the United States after completing an LL.M., some careful preparation and attention to details can lead to a successful test day.

What is the bar exam?

Any lawyer who wants to work in the United States must pass the bar in the jurisdiction in which they plan to practice. The exam tests knowledge of general legal principles, as well as that state's own law—typically subjects like wills, trusts and community property, which always vary from state to state. While some states write their own bars, many have reverted to a standardized exam—the Uniform Bar Examination, or “UBE”—developed and administered by the National Conference of Bar Examiners.

Adoption of the UBE began in 2011, with Missouri being the first state to administer the test. Today, some 25 states—plus the District of Columbia—have adopted the Uniform Bar Exam. “Some states are very insular,” says Chuck Turner, who served as executive director of the Colorado State Bar Association for over thirty years. “They want to determine on their own who gets in; one could also argue that they’re limiting the amount of lawyers coming into their state.”

UBE scores can be transferred to seek admission in other UBE jurisdictions, but applicants should be aware of each state’s requirements; for example, each applicant may have to redo the process that determines his or her “character and fitness,” a procedure required of everyone seeking to practice in the United States. Many of the largest legal markets—California, Florida, Illinois, and Texas, for example—have so far chosen not to adopt the UBE. New York and the District of Columbia only began administering the UBE in the summer of 2016, while South Carolina and New Jersey will begin using the test in February 2017.

The UBE, which lasts two days, is generally composed of two parts: the first is devoted to a standardized Multistate Bar Examination (MBE), a six-hour, 200-question multiple-choice test that covers constitutional law, contracts, criminal law and procedure, civil procedure, evidence, real property, and torts. The test is administered nation-wide on the last Wednesday in February and the last Wednesday in July of each year, and is divided into two 3-hour sessions. To date, Louisiana is the only state not using the MBE.

The second day of the test covers that particular state’s law, often comprised of essay questions. “Everyone knows that the California bar has community property as a potential test question,” says Jordyn Ostroff, who passed the California bar in July after graduating from Berkeley Law School this year.

Shay Soltani, a lawyer at Arnold & Porter Kaye Scholer in New York City, took the New York bar in 2012 and said that the differences between the state-specific portion involve the depth of the different areas of law in that jurisdiction. “When you get into states, it just comes down to what areas of state law they deem are important,” says Soltani, who did her J.D. at Fordham.

A handful of states—California, Iowa, Mississippi, Montana, Louisiana—have three days of testing instead of two, although California, with one of the most difficult exams in the country, is reverting back to a two-day bar in 2017.

Who can take the bar exam?

Eligibility for the bar, as well as the passing score, varies depending on the state. Thirty states allow foreign-trained lawyers to sit their bar exams, according to the NCBE, but there are also other eligibility factors like standards of the law school candidates attended—whether they are up to par of the American Bar Association—or whether they were educated in the common law or civil law system. In some states such as California, having an LL.M. can come in handy in terms of eligibility for the bar exam.

But the test has proven to be markedly more difficult for foreign law students; according to NCBE statistics, only 28% of law students who studied outside the United States passed the bar in 2015, compared to 64% for ABA-approved law schools.

California and New York are notorious for having some of the lowest bar pass rates in the country; in 2015, they were 44% and 56%, respectively. You can take the bar multiple times, but the test costs roughly $800, so it can be a heavy financial burden for many students—some of whom take out loans just for exam preparation and costs, according to Ostroff.

Turner pointed to recent developments in bar reciprocity, in which some states allow those who have passed the bar in another state to be admitted to their own bar. The vast majority of those admitted to Washington D.C.’s bar, for instance, are those admitted in this way. The requirements for reciprocity vary by state, however; some depend on factors such as the number of graduating law students within the state, geographic desirability, or average earnings compared to other states. Some may also require candidates to take the state’s bar exam, while others will accept a combination of passing results on the MBE and a minimum number of years’ of practice in another state.

“Thirty years ago, there was hardly any reciprocity,” Turner says. “Today, you may have to take the local practice and procedure exam, but that’s much much less daunting than the full bar.”

How to prepare for the bar exam

One lamented consensus among law students is that law school does not prepare you for the bar. There are a handful of classes like contract and criminal law every student takes that is covered by the bar, but, as Ostroff notes, it’s not taught in a way that’s useful for the exam. “My contracts or civil procedure professors—they don’t teach the exam; they teach the curriculum they develop,” she says.

“The hardest thing in general about the bar—and what makes it really different from law school—is to be tested on something has to be right or wrong, black or white,” Ostroff says. “But nothing you learn in law school is black or white. It’s all a grey area.”

To help test-takers, a number of companies, such as Barbri and Kaplan, offer bar preparation courses. Indeed, Soltani says, so many people take the Barbri course that it has become a sort of barometer for what’s going to be on the test.

LL.M. students, however, often go into the bar with different needs than their J.D. counterparts; some need review of the fundamentals of American law, while others need help with the rigors of standardized testing and written English. Because of this, prep services offer customized courses for LL.M. students coming from outside of the US. And additionally, in some cases, LL.M. programs will actually include some specific bar prep classes.

There’s no way around it; passing the bar is a lot of work. According to Turner, “You just have to study for it, and that’s a full-time job.”

“Since so much is riding on it, it’s not like any other test.”

Image: Swampyank / CC BY-SA 3.0 (cropped)

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