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ESSAYS ON THE 75TH ANNIVERSARY OF THE NATIONAL CONFERENCE OF BAR EXAMINERS On the occasion of the National Conference’s 75th Anniversary, we asked many of those who have had longstanding associations with and some who have more recently become acquainted with the organization to give us their thoughts on its history, its current state, or its future. What follows are the essays of those who accepted our invitations. contacts with the administrators. Thus while both BAR ADMISSIONS bar examiners and bar administrators were involved CONTINUING EDUCATION in each jurisdiction’s bar admission process, the FOR THE TWENTY-FIRST exchange of information between these two larger groups was incidental at best. CENTURY This tenuous interaction between the NCBE by Bedford T. Bentley, Jr. Board, mostly composed of bar examiners and for- In the last fifteen years, the National Conference of mer bar examiners, and bar administrators was Bar Examiners has reinvented itself through the reformed through the leadership of the Board in the strong leadership of its Board and staff, the steady early 1990s. The Board’s recognition of the promi- enhancement of its testing and character and fitness nent role of administrators in the admissions process products, and the expansion of other services it pro- was reflected in the hiring of a former administrator vides to the bar examining community. One facet to serve as president of the Conference, the creation of this robust preparation for and bold advance of a regular position on the Board for a representa- into the twenty-first century is the Conference’s tive of the administrators, and the routine appoint- development of continuing education programs for ment of administrators to participate in and even bar examiners and administrators. chair National Conference committees. The full inte- In the era preceding the current renascence, the gration of administrators into the Conference’s poli- Conference’s educational offerings consisted of a cy setting and operations has been fruitful and a biennial seminar for new bar examiners and the bar major factor in the Conference’s revitalization. administrators’ meetings three times a year (with The Conference’s renewal has been manifested minimal involvement of bar examiners in the admin- in a number of ways, but two areas stand out. One istrators’ meetings). The Conference’s policy and test is the addition of a number of staff positions which development committees were composed of NCBE has given the Conference exceptional capabilities Board members and bar examiners and had minimal in testing and research, in the employment of new THE BAR EXAMINER, NOVEMBER technology, and in meeting planning and organiza- BEDFORD T. BENTLEY, JR. has been the bar admissions ad- tion. The second is the application of these staff capa- ministrator in Maryland for bilities to the Conference’s educational offerings. nearly 20 years; he has chaired the Conference’s Minority The long-running biennial seminar for new bar (Diversity) Issues Committee and currently serves as a mem- examiners has been redesigned with educational ber of its Editorial Advisory offerings for experienced as well as new bar examin- Committee. ers and administrators. The seminar topics range across the spectrum of issues affecting bar admis- tion. This initiative has sions, including examination standard setting, scal- been increasingly suc- ing, and grading; character and fitness investigations cessful and informs the and hearings in all their rich variation; testing supreme courts that there is a reliable and authorita- accommodations under the Americans with Disabil- tive repository for the most current information ities Act (ADA); and finer-grained attention to topics about bar admission issues that many jurisdictions of special interest, such as minority performance on have in common. the bar examination. The current approach to pre- In alternate years, when the biennial seminar is senting the mathematics of score combining is a use- not offered, the Conference has added a topic- ful illustration of how things have changed. The oriented seminar to focus in depth on a subject of Conference’s testing and research staff members now widely shared interest. These alternate-year confer- provide lucid explications of the complexities of psy- ences frequently have included presenters from out- chometrics, having the advantage of firsthand side the bar admissions community whose experi- knowledge of the concerns of bar examiners and ences are relevant. For example, representatives of administrators as a consequence of daily interactions the Law School Admission Council and the National with them. With familiar (and friendly) faces at the Board of Medical Examiners have shared their expe- podium, bar examiners and administrators are more riences with evaluating requests for accommoda- inclined to pose the burning questions about statis- tions pursuant to the ADA. A representative of the tics, which everyone has always been dying to ask National Council of State Boards of Nursing but refrained from asking for fear of being further described the process used for implementing com- perplexed by the answer or revealing the deep igno- puter adaptive testing for the national nurses’ licens- rance which everyone else in the room was silently ing examination. sharing. The answers now provided are carefully articulated, clear, and elaborated upon as necessary Another Conference innovation is the creation of to satisfy the last lost soul. “mini-seminars,” in subjects such as technology, character and fitness, and testing, which have per- A concerted effort to attract state supreme court mitted small groups of administrators to delve inten- justices to these annual seminars has resulted in a sively into matters directly applicable to their daily new forum for promoting greater engagement of operations and planning for modernization. As with the policy makers in the bar admissions conversa- the larger seminars, these meetings, held at the ESSAYS ON THE CONFERENCE’S 75TH ANNIVERSARY Conference headquarters, provide participants the with a fellow attorney about golf, someone came up opportunity to compare notes and exchange ideas on to congratulate him on his interview on the Rush best practices and problem solving. Limbaugh radio program. On the golf course the following morning, my friend explained that he was Two other examples of innovation are the the Examiner for Constitutional Law for the administrators’ restricted portal on the Conference’s Louisiana Supreme Court Committee on Bar website (which provides an electronic home for the Admissions and that in one of the essay questions on administrators’ newsletter, meeting information, and the most recent examination, he had included a several other helpful resources) and the administra- veiled reference to Rush Limbaugh. Limbaugh’s staff tors’ electronic mailing list, which has been invalu- had called to ask him to appear on the show and dis- able for obtaining rapid answers to vexing questions cuss the question. and means to avoid reinventing the wheel. Several holes later, I queried him about his role Last, but by no means least, is THE BAR EXAMINER, as an Examiner. He explained in detail his duties the Conference’s periodical, which is widely distrib- and responsibilities. He also explained that the pri- uted and read within the bar admissions community. mary grading of the bar examination was conducted THE BAR EXAMINER articles now come from a broader by Assistant Examiners and that the Louisiana spectrum of contributors than before, and its regular Supreme Court granted six hours of continuing legal columns have become more informative because of education for the effort. By the end of the round, I the contributions by the in-house specialists in test- had convinced him that I would happily serve as an ing and research. Assistant Examiner if more were needed. This is a quick survey of some of the vehicles Several weeks later, I received an order from the used by the Conference to afford the bar admissions Louisiana Supreme Court naming me as an Assistant community first-rate continuing education. The last Examiner and requiring me to send a letter of accept- fifteen years in the Conference’s long history has ance to the clerk of the supreme court within 10 days. been a golden age of accomplishment and advance- My secretary questioned the letter to the state ment in the art and science of determining which supreme court; after hearing my explanation, she candidates are worthy to enjoy the privilege of prac- rolled her eyes and reminded me that I mainly prac- ticing law. ticed as a maritime lawyer. GOLF, HURRICANES, She also said that she felt sorry for the applicants whose papers I was grading when those papers AND THE NATIONAL arrived at my office for grading. I had second CONFERENCE thoughts about volunteering for this duty when she handed me the stack of papers. Not to worry, I by Dan Webb thought as I sat down to read the three questions that My introduction to the National Conference can be I was to grade. Reading them, however, was a real traced to Louisiana golf courses. In early 1990, I wake-up call! I felt much better after I found the attended a party in New Orleans. While I was talking THE BAR EXAMINER, NOVEMBER grading guidelines which highlighted and gave a full DAN WEBB is a former chair of and a former director of charac- background discussion of each of the issues. ter and fitness for the Louisiana Supreme Court Committee on Back on the golf course, I acknowledged to my Bar Admissions. friend that I had started grading the papers and that I was most grateful for his comprehensive grading someone “Banker” and guidelines. He explained to me that since not many someone “Holder” when attorneys practiced Constitutional Law he felt it nec- drafting a commercial essary to have a back-to-basics “poop sheet” for his transaction question. Assistant Examiners. When my final grades were submitted to the Committee, my initial involvement I also learned that in the bar admissions process was over. Reflecting the grading procedure for the Louisiana Bar back on those efforts, I had no idea at the time that the Examination needed fine tuning. I was most im- National Conference of Bar Examiners even existed. pressed with the presenter when we were asked to practice grading sample answers using different Flash forward four years, again to the golf grading methods. course. My friend told me that his term as the Constitutional Law Examiner was ending shortly I left Chicago determined to learn more and and that he needed to find a replacement. He lobbied committed to improving our examination process. I pretty hard and finally convinced me to throw my am happy to report that we are still working to name in the pot. improve it. The testing staff at NCBE has been with us every step of the way. When I was appointed by the supreme court to the position of Examiner, I set about drafting my first After surviving several bar exams as Louisiana’s essay questions and soon learned what a difficult Constitutional Law Examiner, I was asked to take task I had signed on for. I welcomed a suggestion over the position of director of character and fitness. that I attend a meeting of the National Conference in Luckily, I was already at the time scheduled to attend Chicago, especially after I learned that most of the a second NCBE meeting. This provided a sound base Saturday morning program was devoted to writing for learning my new position and for convincing our and grading essay exams. chair that we needed to ratchet up our process to ensure that our applicants could demonstrate the At the opening reception I was impressed with requisite character and fitness to practice. We were the warm welcome I received from all of the “veter- certain the best tool would be to utilize the resources ans.” It was also great to learn that Erica Moeser, the of the NCBE investigation services. This certainty NCBE president, had a significant connection to was confirmed by a follow-up trip to Chicago where New Orleans. From that first meeting, I felt like I had we tracked an application through the entire process. been taken on by more experienced examiners as a We were able to take that information to our court challenging project. I likely confirmed that status and today our jurisdiction is one of the largest users when I argued with the person teaching the exam- of NCBE investigation services. writing session that it was unrealistic to name ESSAYS ON THE CONFERENCE’S 75TH ANNIVERSARY When I was asked to serve as chair of our able resource by providing ideas for best practices in Committee I did so knowing that when there were every area of bar admissions. any difficulties, I had an excellent resource to rely My contact with NCBE began in 1978 at the upon. Erica Moeser can attest to my many telephone annual meeting in New York City. I met such CBAA calls for information, support, advice, and some- luminaries as Ellen Sterritt, Ben Estes, and Jim times comfort. Tippin. These folks (among others) became my men- After my term, the new chair was met with an tors—people who had seen all the problems and had unprecedented nightmare of what to do about the all the answers (or at least good ideas for dealing possibility that hundreds of exams might have been with the problems). Over almost thirty years the lost to the flood waters of Hurricane Katrina and the mentors have changed, and have included folks winds of Hurricane Rita. We were called to a meeting like John Moore, Jerry Braun, Peg Corneille, Erica with our displaced supreme court to plan how best Moeser, and Missy Gavagni. All have given unstint- to determine the extent of the problem, develop pos- ingly of their wealth of knowledge and experience sible courses of action, and respond to the many and have made my life as a bar admission adminis- inquires we were receiving from applicants and the trator that much easier. A quick look at our admis- general public. We immediately called Erica, who sion rules and application forms will show that I agreed to travel to Baton Rouge to participate in the have been guilty of grand theft. Thanks to these folks meeting with our court. Through her expertise and and to the many others that I did not mention (you support, we were able to create a plan which our all know who you are). court approved. (I am sure the Committee’s recom- Members of the NCBE staff have been similarly mendations to the Court were enhanced by the fact helpful. From Joe Covington to Kent Brye, the NCBE that there were no hotel rooms available in Baton staff has been extraordinary. The range of services Rouge and Erica had to spend the night at the coun- offered by NCBE has increased many times over try home of one our justices.) since 1978 when NCBE offered only the MBE and its NCBE support was, as always, there when character investigation services. The testing options it was needed. now cover everything a jurisdiction could wish for, and the ancillary NCBE services provide all of us with statistical help, computer support, educational THOUGHTS ON THE 75TH opportunities for board members and staff, litigation ANNIVERSARY OF THE resources, and the old reliable standby—character investigations. NATIONAL CONFERENCE What of the future? Milestones are the perfect by R. David Stamm opportunities to speculate about where we will be in How do I say “thank you” to an organization that 5, 10, or 25 years. In the next five years I see increas- has provided help and support to me and my board ing use of technology to improve our ability to devel- for almost thirty years? NCBE has been an invalu- op and deliver a high-quality bar examination and THE BAR EXAMINER, NOVEMBER R. DAVID STAMM is the admin- Michigan, like many other jurisdictions, then istrative director for the Connecticut Bar Examining used a locally prepared all-essay bar exam. The Committee. Michigan Board had been overwhelmed by a major surge of applicants and a corresponding surge in assure the public that blue books to be graded. Joe quickly convinced us of our candidates are of the MBE’s quality and explained that by using a mul- the highest moral char- tiple-choice component we could reduce the stack of acter. Computer-based blue books by half. We and our court enthusiastical- testing may allow for ly adopted the MBE. testing of a broader In 1974, John Germany, the chairman of the MBE range of skills than can currently be tested with Policy Committee, invited me to join that group. I'll paper-and-pencil tests. Item response theory equat- never forget my first meeting, which was in a confer- ing can potentially permit an MBE with almost ence room in the O’Hare Hilton. Because my flight instant reporting of results. Ten years down the road, was late I arrived after the meeting had started. A we may see a bifurcated exam with the MBE offered psychometrician from the Conference’s test consult- following the first year of law school, the MEE fol- ing firm had filled a blackboard with a bewildering lowing the second year, and the MPT and local test- array of calculations, equations, and graphics. She ing after graduation. This will identify students with spoke of statistical concepts that were unknown to problems before they finish law school and will help me. After the meeting, I approached Joe Covington, to make the bar exam more humane. And on NCBE’s confessed my confusion and suggested that he 100th anniversary—well, I’ll be very happy if I can might want to reconsider my appointment to the be there to sip some fine wine with old friends from committee. Joe just laughed and assured me that I the CBAA and NCBE. would catch on quickly to what I really needed to Happy Birthday, NCBE!! know. He was correct, and during the ensuing years I served on and chaired the MBE Committee, the MEE Committee, and the Board of Managers (now AN NCBE the Board of Trustees). REMINISCENCE On the 75th anniversary we should recognize the work of those who took the Conference from a small by Douglas D. Roche organization that operated an essay question bank, My first contact with the National Conference was a gathered character and fitness information for some visit in 1973 from Joe Covington to the Michigan jurisdictions, and met at ABA meetings to what it has Board of Law Examiners of which I was then a mem- become today. ber. Joe’s purpose was to explain to the Michigan Board members the value of using the newly hatched With advance apologies to those I may overlook, Multistate Bar Examination. I would like to recognize Joe Covington, our first ESSAYS ON THE CONFERENCE’S 75TH ANNIVERSARY DOUGLAS D. ROCHE is a con- academia, different types of practice, and the judi- sulting member of Dickinson ciary. I also like to think that those of us who parti- Wright PLLC in Detroit, Michigan, and a former chair cipate in drafting test questions learn some law in of the National Conference. the process. The Conference has come a long way since my director of testing, who first exposure in 1973. I'm grateful for the opportuni- was the driving force ty to be a part of a very distinguished organization in bringing the MBE that has contributed so much to the profession. into existence. John Germany, John Eckler, and Roy Wilkinson worked tirelessly and effectively MYSTERIOUS MESSAGE in promoting the MBE throughout the country. Frank Morrissey was the “Godfather” of the MPRE LEADS TO LONGTIME and served the Conference in many roles, including ASSOCIATION Chair of the Board of Managers and chief executive by Greg Murphy officer. Dick Julin, who succeeded Joe Covington as For me it all began back in 1986 with one of those director of testing and became the Conference’s pink telephone message slips. This one bore the first chief executive officer, made significant contri- name of Sumner Bernstein from Portland, Maine. butions to every aspect of the Conference. Armando Practicing in Montana, I had received business- Menocal and Jane Smith did fine work in developing related calls originating from various parts of the MPT. Other major contributors of my era were Montana, the western United States, Chicago, New Guy Beatty, Sumner Bernstein, Bob Muldoon, Lee York, and Washington, D.C., but never one from Satterfield, Jack Holt-Harris, Clyde Bowles, Arthur Maine. Although I did a little background check Karger, Margo Melli, Greg Murphy, Dick Bartlett, and discovered that Mr. Bernstein was a prominent Stuart Duhl, Jerry Hafter, Beverly Tarpley, Marvin Maine attorney, his call remained a mystery, and I Barkin, and Bob Potts, as well as all of the test draft- could not fathom its purpose. ing committee members, the bar administrators, and the NCBE staff. When I reached him, Sumner said, “Mr. Murphy, you are being considered for a position on the It is gratifying to observe the current efforts of Multistate Bar Examination Committee. If it would the Conference in quality control and improvement, be offered, would you accept?” That was exactly the service to the states, innovation, fair access to our way my firm put the proposition of employment to profession, and incorporating new technology and me back in 1980 when I was looking for a job. As the ideas. Erica Moeser is doing a fine job in leading job had turned out well, I thought Sumner’s the Conference. approach was a good omen. Moreover, I was very The rewards, for me, of participating in flattered. Here I was, a small-town lawyer in a small- Conference activities have included intellectual population state, and I was being asked to serve on stimulation, valued friendships, and exposure to a national committee that sounded pretty darn THE BAR EXAMINER, NOVEMBER important. I said that I probably would accept, and GREG MURPHY is a former chair of both the National then asked whether there was any information about Conference of Bar Examiners me that those in charge would like to know. Sumner and the Montana Board of Bar Examiners. replied, “We know all we need to know.” So began my twenty-year, and counting, affiliation with the National Conference of Bar Examiners, an associa- downtown Chicago. tion I have treasured and one that has benefited me Finally, and perhaps far more than any contribution I have made. most importantly, we When Dick Bartlett was honored as a past chair all knew that the com- at the 2001 annual meeting in Whitefish, Montana, he mute for our president, commented that the friends he had made as a result Erica Moeser, had to be taking its toll. She did not of his work in the Conference were what he prized complain and never once said to me that she might more than anything else. One can always count on not be able to continue unless a move was made. Dick to cut to the heart of the matter. I have served She did not campaign for the change. But, there on many local, state, and national boards. I can say could be little doubt that she would welcome it. We without reservation that none has produced so read- would surely be able retain her services for a longer ily so many steadfast friends as has the National period if we could move our headquarters to her Conference. In no enterprise other than bar examin- beloved “People’s Republic of Madison.” As David ing have I found such universal dedication to good Boyd said to me, “This is a no-brainer.” work without hidden agendas. I believe the reason The move to Madison proved to be an unquali- for this dedication is the character of those who fied success. Erica was able to attract a superior staff decide to devote time to the pro bono effort of to run the day-to-day operation. The quality of the improving the process and the results of bar admis- products and the services has improved dramatical- sions. What a joy it has been! ly. The finances of the Conference became far more If I were to mention one contribution I have stable and allowed the Board to consider bigger and made to the Conference that made a true difference, more meaningful projects. The move to Madison it was the suggestion at the Board meeting in was not the sole cause for these pleasant turns of Greenville, Mississippi (the home of the first friend I events, but the improvements would not have made in the Conference), that we leave the rented occurred so readily had Erica not stayed at the helm space at 333 N. Michigan Avenue in Chicago and and recruited the terrific staff she has assembled. move the operation to a city with a Big Ten or other The irony of the Conference being headquartered in leading university to which we might more readily the only state with the diploma privilege remains, attract leading psychometric talent. In addition, once but what fun would life be without delicious ironies? the Conference had the capital to purchase real I considered listing a litany of all the grand times estate, it made little sense for it, a non-profit corpo- enjoyed in the company of fellow Conferees, but ration with contacts all around the country, to rent in ESSAYS ON THE CONFERENCE’S 75TH ANNIVERSARY quickly realized that the space permitted here would not allow for a good accounting. Also, mentioning REFLECTIONS ON PROGRESS some of the events and the names involved would by Jack Marshall necessarily mean failing to mention others equally My history with the National Conference of Bar deserving of note. Suffice it to say that the quality Examiners and the Council of Bar Administration of the discussion always mirrored the quality of Administrators is extensive. I joined the ranks of the the people. It also bears mentioning that the national bar admissions administrators in late 1986, when I scope of the Conference activities has required the was hired as the director of character and fitness for Board to hold meetings and conduct seminars across the Texas Board of Law Examiners, following my 20- the length and breadth of the country. As a conse- year career as an Army officer. Shortly after I was quence, bar examiners and bar administrators have hired, I began to attend meetings of the CBAA, and been “networked,” a very good thing for the good of through the ensuing years, I have been active in the the process. I must personally confess delight in the organization, chairing the Character and Fitness opportunity to see so many places. I bought a U.S. Committee and the Nominations Committee, and map, hung it in my basement in Billings, Montana, being honored by my colleagues when they inducted and put pins in the places I had been thanks to my me as CBAA Chair for the 2003-2004 term. I have also Conference travels; I gave up when the big box of served on several panels at both CBAA meetings and pins ran empty. NCBE seminars. Finally, I have served on the NCBE Character and Fitness Committee since August 2003. Kudos must go to our current chair, Diane Bosse, and to Erica for arranging the videotaping of the When I began my career as an administrator, my reminiscences of board members past and present on knowledge of NCBE and the CBAA was minimal, the occasion of the 75th birthday of the Conference. because I was concentrating on learning the ropes of The project will build a valuable historical record for the character and fitness operation in Texas. I do the coming generations. We must feel a twinge of recall that our executive director at that time, Wayne regret that those, including Sumner, who have Denton, spoke highly of CBAA meetings. After passed on cannot be recorded in the same way. But, attending my first few meetings I quickly discovered we may take comfort in knowing that those who that, although I was able to travel to and explore have succeeded them and labored in service to the some very interesting places, the real benefit of Conference have been true to the principles and attending CBAA meetings was in making contacts examples they set. The Conference remains in good with administrators from other states who had hands and there is every reason to believe that the extensive experience in the C&F business. constituencies it serves will see better products and I also recall that, although I was learning more service in the future. and more about the CBAA, if you had asked me at that time to explain the role and functions of the National Conference, I would have told you that NCBE produced the Multistate Bar Examination, THE BAR EXAMINER, NOVEMBER offered an investigative service, and had some sort JACK MARSHALL is the Director of Character and Fitness for of a board. I only knew about the investigative the Texas Board of Law service because Texas used the NCBE investigative Examiners. service for a short time for out-of-state applicants. I knew that there was a board because the chair of istrators to ensure that the Texas Board, Beverly Tarpley, served in some the presentations and capacity on that board. (I came to learn that she was discussion included a member of the Board of Trustees, and eventually, the views and concerns the Chair.) As I became more active in the CBAA, I of those of us “in the discovered that NCBE provided essential funding trenches.” The Confer- for the CBAA meetings. The communication ence has also in the past several years developed a between the CBAA and the National Conference, series of mini-seminars held at the Conference head- though, seemed limited, other than communication quarters. These mini-seminars are designed to bring about the tests produced and some back and forth administrators and Conference staff together, in a with jurisdictions that used the Conference’s inves- small group setting, to address issues arising in spe- tigative services. cific areas, such as technology, testing, and character From my perspective, things began to change and fitness. The Conference has developed signifi- when the helm of the Conference was taken over by cant technological advances that have increased the new leadership in 1994 and new staff was hired. efficiency and thoroughness of its services, and those Practically overnight, it seemed, the Conference was technological developments have been made avail- transformed into a living, breathing entity whose able to the jurisdictions. primary mission included assisting the jurisdictions Above all else, perhaps, is the fact that the in accomplishing all of the tasks associated with Conference staff goes to extraordinary lengths to bar admissions. It seemed that the Conference and assist administrators in all facets of the bar admis- the CBAA began to form one cohesive joint force sions business. Those who are relatively new to bar that was aimed at addressing the challenges facing admissions probably take the assistance provided by bar admissions. the NCBE staff for granted; however, I can assure With the new leadership and staff at NCBE came you that it was not like that “in the old days.” significant improvements in existing services and I will close with a trite, but appropriate, com- programs, and more importantly, new services and ment on the history of the relationship between programs. For example, the Conference seminars bar admission administrators, the CBAA, and became more focused not only on current issues, but NCBE since 1986: “You’ve come a long way, baby!” also on issues appearing on the horizon that would It has been a privilege for me to have been along impact future bar admissions. The panels at those for the ride. seminars included a generous mixture of bar admin- ESSAYS ON THE CONFERENCE’S 75TH ANNIVERSARY But with respect to character and fitness, an LOOKING FORWARD TO A applicant can’t be as sure of what will be required or, NATIONAL CHARACTER rather, what will be disqualifying. Virtually every AND FITNESS STANDARD jurisdiction requires that an applicant be of “good character and fitness,” but that standard is amor- by Jerome Braun phous and not readily capable of definition. Some The sea tide in the bar admissions community in jurisdictions try to define the standard, as does the United States has long been towards standardi- California in Section 6060 of its Business and zation of admission requirements. There have been Professions Code, but in the end, one finds vague ebbs and flows in the tide, but a cursory comparison terms to define a vague standard. Unfortunately, of admissions practices of 75 years ago with those of jurisdictions can do little more because applicant today reflects the overall run of the tide. Seventy-five conduct can be viewed in various ways depending years ago, there were no multistate examinations; on the totality of circumstances. This leads to uncer- today there are four. Seventy-five years ago commu- tainty on the part of the applicants and to the possi- nication between the bar admissions authorities of bility that an applicant with a problematic back- the various jurisdictions was sparse; today jurisdic- ground will forum shop to find a jurisdiction which tions communicate both on the bar examiner level either does not conduct as rigorous a background and on that of the bar admissions administrators. investigation as some others or which views the In large part the flow of the tide has been guided problematic conduct more leniently than might other by the National Conference of Bar Examiners jurisdictions. through its Board of Trustees (and in its earlier incar- More and more jurisdictions are moving towards nation, the Board of Managers), the Conference’s multijurisdictional practice through motion admis- staff, and the Council of Bar Admission Admini- sion, and the American Bar Association’s Section of strators. It seems safe to say that as a result, the bar Legal Education and Admissions to the Bar has be- admissions processes are fair and unbiased with gun consideration of the idea of a national examina- respect to gender or ethnicity; the decision to admit tion standard. So, too, the United States bar admis- or not admit any particular applicant in terms of sions community should begin to work to reach con- minimum competence is based solely on that appli- sensus on a uniform standard as to the minimal level cant’s ability as demonstrated by examination, that of character and fitness required for admission, both is, the achievement of an examination score specified to protect the consumers of legal services and to pro- by the particular jurisdiction. The requisite score vide a definable standard that bar applicants will varies from jurisdiction to jurisdiction, but those know they must meet to be licensed as lawyers. scores are published and an applicant for admission in a particular jurisdiction will know what score This task won’t be easy since it does not appear will be required. that any such consensus exists today. For example, some jurisdictions will not admit a felon while others will if sufficient time has elapsed or if the THE BAR EXAMINER, NOVEMBER felon has obtained a full and complete pardon. Some JEROME BRAUN is a retired admissions administrator, hav- jurisdictions ask for a complete record of arrests ing served in that position with regardless of whether the arrest resulted in a convic- the Supreme Court of Georgia and the State Bar of California. tion while others require reporting of only convic- tions. Some jurisdictions place great emphasis on and a subsequent de- financial integrity while others appear to place termination of whether greater stress on other factors in an applicant’s back- the applicant has the ground. While there are areas of greater or lesser character and fitness to import for the various jurisdictions, all require can- be licensed to practice. dor and honesty on the part of an applicant. Creating Pride of authorship of a uniform standard will take time, but if doing so questions should not stand in the way of a uniform is a goal that the jurisdictions find worthwhile, character and fitness questionnaire. With the input of agreement can be reached. A goal should not be all jurisdictions, a good questionnaire can be crafted. abandoned because it will be difficult to achieve; if it is desired, it should be pursued. The second step will be to reach agreement on which commissions or omissions will disqualify an There are two steps that can be taken to achieve applicant. This will be particularly difficult because the goal. The first, and the easiest, is for jurisdictions the facts of each instance of problematic conduct are to adopt a uniform character and fitness question- likely to be unique to the particular applicant and naire. The Conference’s standard character and fit- incident, and because in society as a whole there is at ness questionnaire provides a good place to start best a very loose consensus as to what is and what is since its character and fitness service is used by not acceptable conduct. Thus, these attempts should many jurisdictions to gather background informa- not be made in a vacuum. The public, the legal edu- tion on their applicants. That being so, the questions cation community, the profession, and the judiciary asked and the documentation required have been should be invited to participate in this project widely accepted and therefore represent a good because they have a stake in the outcome of the foundation from which to craft requests for informa- process—the admission or non-admission of a par- tion that all jurisdictions will want for the purpose ticular individual to the practice of law. of making character and fitness determinations. Other jurisdictions use forms that differ from the The National Conference is an appropriate body Conference’s form to a greater or lesser degree. The to coordinate and support this process starting with Conference and the various jurisdictions (perhaps the appointment of a core group of interested per- through the Council of Bar Admission Administra- sons and representatives of the stakeholders to dis- tors) should attempt to agree on the questions to be cuss what it means to say that an applicant is of good asked and the documentation to be required of each character and to craft standards by which that assess- applicant so as to provide sufficient information on ment can be made. Public hearings should be con- which to base a character and fitness investigation ducted to ensure the widest possible participation ESSAYS ON THE CONFERENCE’S 75TH ANNIVERSARY in the project, both in the defining of good character presidents, as well as with state bar examiners. Yet, I and in the drafting of applicable standards once the did not know the full range of NCBE activities. definition has been crafted. When I look back on the changes of the past Some would argue that the steps outlined above thirty-two years relating to the American legal pro- should be in reverse order; the definition of good fession, bar admissions, and NCBE, it is clear that character should precede the crafting of a uniform globalization is perhaps the most significant devel- questionnaire. Perhaps, but questionnaires already opment that has taken place. With the growth of the exist and standards of character and fitness are cur- European Union, now comprising twenty-five coun- rently being applied. The advantage of a uniform tries, and the free movement of members of the legal questionnaire is that all jurisdictions would be ask- profession within the Union, transcending language ing the same questions, which would discourage if difficulties and the challenges inherent in moving not prevent an applicant from forum shopping to between civil and common law, it is clear that the avoid answering difficult questions or to avoid pro- removal of barriers to free movement of legal profes- viding documentation that he or she would rather sionals is the most important factor affecting bar not provide. admission in the world and in the United States, today and tomorrow. Giant strides start with baby steps. Over ten years ago the ABA Section of Legal Education and Admissions to the Bar endorsed the GLOBALIZATION AND BAR adoption by states of the Foreign Legal Consultant ADMISSIONS Rule. This rule reflects the globalization of legal practice and the increasing pressure to permit cross- by James P. White border practice. The rule resulted from efforts to In reflecting upon the 75th anniversary of the address cross-border international practice while National Conference of Bar Examiners, I think of acknowledging the authority of each U.S. jurisdic- 1974 and the legal profession at the time when I was tion to control its bar admissions. However, we have appointed Consultant on Legal Education to the found that this effort to provide foreign legal advice American Bar Association. The operation of the in the various states has been used rarely in those Consultant’s office was vastly different at the end of jurisdictions that have adopted the rule. my tenure and is more so today as indeed is that of Some eight years ago, NCBE President Erica the National Conference of Bar Examiners. Yet the Moeser and I attended a conference in Paris spon- basic responsibilities of these two organizations and sored by the Bar Councils of Europe, the Japanese offices remain true to their original purposes. Bar Association, and the American Bar Association. At the time of my appointment as the ABA The conference discussion as it related to the United Consultant, I was somewhat familiar with the role of States focused on the authority of the highest courts the National Conference of Bar Examiners and had of each state and their respective boards of bar exam- met and worked with a variety of NCBE chairs and iners to regulate bar admissions. Most participants THE BAR EXAMINER, NOVEMBER JAMES P. WHITE, a professor of If we are now living in an interdependent world, law at Indiana University School of Law-Indianapolis, is how will local and national rules on bar admissions the Consultant Emeritus on change? The retention of bar admissions authority in Legal Education to the ABA, each admitting jurisdiction is historic and important. having served as the Consultant for 26 years. If only some U.S. jurisdictions permit graduates of Canadian law schools or graduates of foreign law from other countries schools who have secured an American LL.M. degree could not understand a to sit for the bar exam, the question then is the har- system in which this monization of the American bar admission process. authority resides in As we have moved toward the use of a multistate bar each individual state with the highest court and the examination and discussion of a national bar exami- state board of bar examiners. The Law Society of nation, how do we facilitate cross-border, cross- England and Wales particularly questioned this world law practice? This is now a crucial question for authority of the highest courts of the individual the National Conference of Bar Examiners and the states and has since engaged in ongoing dialogue bar admission authorities across the country. with the ABA and NCBE. I believe that globalization is causing and will continue to cause the United States to rethink its BY THE NUMBERS: system of bar admissions. As John Sexton observed THREE REFLECTIONS ON in his 2000 remarks to the London meeting of the DRAFTING MBE ITEMS American Bar Association: by John W. Reed [T]oday clients are represented in the same Anniversaries are milestones, not destinations, and transaction by lawyers from American law the wise see them as opportunities to look to the firms who are graduates of American law future. But anniversaries also create an irresistible schools and by lawyers from European firms compulsion to reflect, to look back. I have been asso- who are products of a much more typical ciated with the Multistate Bar Examination “move- legal education consisting of five years of ment” from its beginnings more than thirty-five education after secondary school. These years ago, and looking back leads me to three partic- clients report that the American-trained ular observations. lawyers and those trained elsewhere bring comparable skills to the table. This observa- The Power of One tion, if true, will become more palpable as In the late 1960s, Joe Covington, at that time a mem- the American firms and the European firms ber of the University of Missouri law faculty, asked begin to hire lawyers from each other’s several of us, mostly academics, to work with him pools—and these lawyers begin to practice on the creation of an objective, machine-gradable side by side as associates and partners. component of the bar examination that would be ESSAYS ON THE CONFERENCE’S 75TH ANNIVERSARY effective and fair, and also useful across state lines. JOHN W. REED, Thomas M. Cooley Professor of Law The odds were daunting, both because of doubts Emeritus at the University about multiple-choice questions as legitimate means of Michigan Law School, serves on the MBE Evidence of testing readiness for admission to the bar and Drafting Committee, a com- because of our nation’s balkanized system of bar mittee he chaired for 34 years. examinations and admission. Although I visited boards of bar examiners in several states with Joe, I Several days of essay do not really know how many scores of conferences questions would be and thousands of hours he chalked up in creating required to cover the what eventually became the MBE and in persuading subject matter in the state after state to embrace its use. With his imagina- one-day MBE. But a well-drafted four-option format tion and energy and his quiet determination and does more than test for rule knowledge; and there’s persistence, Joe Covington—one man—essentially the rub for the question’s author: “well-drafted.” It is willed the MBE into existence, and its nearly univer- easy to create a two-option question, and not terribly sal use today is a testament to what one person can hard to write one with three options; but two- and do to improve the profession to which he has been three-option questions almost never test well for the called. It has been said that you don’t need many ability to apply rules and principles to problematic heroes if you choose wisely. Joe is one of my heroes. cases. Yet to create that fourth option, usually one The Challenge of Four that offers the right outcome but for the wrong rea- When we began drafting questions for the evidence son, is, in my experience, deucedly difficult. My fel- portion of the Multistate Bar Examination, I shared low draftsmen and I have discarded many drafts of the widely held doubt that a multiple-choice ques- questions because of our inability to devise an tion could adequately test both knowledge and the appealing but wrong fourth option. Creating that ability to apply that knowledge. At the very least, it often-elusive fourth option is the key to a profession- seemed that it could not test creativity since the right ally excellent question, and I submit that the several answer is necessarily placed before the examinee. drafting committees perform that task well. (By the way, that skepticism lingers—indeed was It is said that if you look at two works by a writer expressed earlier this year even by the federal judge or composer or painter and cannot tell which of the who nevertheless upheld the National Conference’s two is the later, that artist is only a minor figure. I do plagiarism claims against a prominent bar examina- not claim for a moment that all the MBE questions tion preparation company.) But I stayed with the can be ranked in similar fashion, but over the years project and came to have steadily increasing confi- the drafting committees have become more skilled dence in the efficacy of the model we use. and more sophisticated, and the later forms of the First, of course, the MBE enables examiners to examination are demonstrably superior to those of test for a vastly broader range of knowledge of legal “the early days.” Indeed they are of high quality not rules and principles in a given amount of time. merely on a comparative scale but on any scale of THE BAR EXAMINER, NOVEMBER test excellence. And, going forward, we are striving Educational Testing Service and now, for many to maintain that ascending line. years, ACT. It would be hard to overstate the cama- raderie and warmth of the relationships that have Two Rewards of Drafting Committee Service grown over the years among us all. I have been rich- I have taught the course in Evidence since 1946, and ly rewarded. For the future of NCBE and its MBE, I have watched the evolution of the subject from a I wish for our successors the same satisfactions of largely common law field to codification through the usefulness and growth and friendships that we Federal Rules of Evidence and derivative state codes have enjoyed. with, today, an overlay of case law and constitution- al limitations. At any given time over those years I have felt NCBE—WHAT’S THAT? reasonably confident that I knew the subject matter by Marlyce Gholston well. But one great benefit to me and to my students When I began my job as the executive director of the that accrued from my service on the Evidence Oregon Board of Bar Examiners, I came across a Drafting Committee was learning what is not so. At number of services I needed to learn about, some of almost every meeting, I have entered into a discus- them offered by NCBE. In the beginning I recall sion of a drafted question quite sure of the applicable knowing only that NCBE had offices in Chicago and rule and of my answer, only to have my colleagues provided investigative services to assist jurisdictions persuade me that I had missed a nuance, or even in determining the character and fitness of their misunderstood totally the rule’s application in the bar applicants. particular setting. And I know that the other com- Since then, I have learned of much more as the mittee members have had the same experience. An Conference has developed and expanded its offer- important part of education consists of finding out ings. Milestones in NCBE history include the estab- what one misunderstands or doesn’t know, and so I lishment of the multistate tests—the MBE, followed have had the incalculable benefit of a semi-annual by the MPRE, the MEE, and the MPT—and the very Evidence seminar with highly talented colleagues for informative educational seminars. more than thirty years. Most important to me, as an administrator, was The greater reward of MBE committee service the formation of the CBAA (the Council—formerly has been the joy of associating with expert and gen- the Committee—of Bar Admission Administrators) erous colleagues who devote their considerable tal- in August of 1975 in Montreal. The CBAA has played ents to the improvement of the process by which to an important role in allowing bar admission admin- judge readiness to enter the profession. The Evidence istrators to meet, share ideas, present and participate Drafting Committee has always consisted of a trial in programs covering subjects vital to the perform- judge, one or more trial lawyers, and members of law ance of our jobs, and discuss the important bar exam- faculties—delightful all—and it has been superbly ination issues that face each of us every day. supported by professional aides from, originally, the ESSAYS ON THE CONFERENCE’S 75TH ANNIVERSARY Of most importance, of course, is the knowledge MARLYCE GHOLSTON is the executive director of the we have gained through educational programs and Oregon Board of Bar Exam- discussion with one another. More and more appli- iners and the Executive Secretary of the CBAA. cants are asking for special testing accommoda- tions—it is tremendous to be able to share informa- tion with other administrators regarding the han- of those fortunate dling of such requests, and most recently, we have administrators); seeing been sharing information regarding laptop computer Scott Street’s (VA) testing by applicants. newly acquired tattoo (we found out it wasn’t But the ultimate benefit for me of my involve- permanent); watching Peg Corneille (MN) accept a ment with the Conference has been getting to know toy fire engine in honor of her calling the fire depart- the other administrators and the NCBE personnel. In ment from the hotel—for what turned out to be a addition to being able to work with these individu- very good reason; serving as Chair of the CBAA, and als, many of them have become my very dear friends as the Executive Secretary of the CBAA since 1979 and I have many fond memories that include them. (the idea was to get someone who could and would Always in my mind will be the “extracurricular” serve for more than just a year or two—that seems to parts of those trips and meetings: Having our small have happened!); and, so many, many, more memo- plane, with a number of administrators and former ries, too numerous to mention. Where else could one NCBE Director of Administration Bill Morris on it, have the opportunity to meet such wonderful, car- turned back because of “trouble”; enjoying David ing, and sharing people, making friends throughout Stamm’s (CT) purchase of bookends in Washington, the United States who would be happy to be called D.C.; watching while Wayne Denton (TX) was escort- on at any time? That invaluable benefit is a big part ed away by two security guards in a restaurant of what an association with NCBE (and the CBAA) where we were all enjoying dinner; being in a hotel is all about. without hot water for the entire stay; enjoying the historical sites in Boston, Washington, Philadelphia, and Williamsburg; walking back from a social hour CONGRATULATIONS FROM in New Orleans with Trustee Erias Hyman (DC); rooming with the future NCBE president, Erica WEST VIRGINIA Moeser; a trip to my origins in Minnesota with Myra by Sarah N. Hall Hajny (NCBE) and Carol McDonald (ID); worrying Expecting a “Jeopardy-like” response from you, the about hosting a meeting in my home city of Portland answer is: This state most recently abolished the (some CBAA members will remember finding the diploma privilege, leaving Wisconsin as the sole “Church of Elvis” there); participating in NCBE remaining user of diploma privilege in bar admis- lunches and watching my counterparts receive com- sions. The question is: What is the state of West mendation from the Conference (and also being one Virginia? This seemed to me an appropriate way to THE BAR EXAMINER, NOVEMBER begin my congratulations to the National Conference SARAH N. HALL is a former chair of the National Conference of Bar of Bar Examiners on its 75th anniversary. Examiners and currently serves as a Workers’ Compensation Admin- My experience with the National Conference of istrative Law Judge for the State of Bar Examiners began more than twenty years ago West Virginia. when I was appointed to the West Virginia Board of Law Examiners by the West Virginia Supreme Court schools outside the of Appeals. Since that time, I have learned of the state. NCBE goals related to bar admissions and met many In restructuring the of the talented and dedicated people working process, we looked at toward those goals. As a result, the Conference has our examination, which was 2½ days—the MBE on been not only a vital part of my work in bar admis- the first day and then 1½ days of essay questions on sions but also a part of many personal experiences West Virginia law prepared by members of the West that I cherish. Virginia Board of Law Examiners. In our delibera- The question asked above (I am sure all of you in tions, there stood NCBE at the ready to assist, and bar admissions answered correctly!) brings up just the greatest assistance came from the fact that NCBE one of the many examples that attest to NCBE’s true offered jurisdictions an essay examination. There it commitment to fulfilling its mission to serve jurisdic- was, the newly created Multistate Essay Exami- tions. The West Virginia Supreme Court of Appeals nation, first having been administered about one changed the longstanding rule regarding diploma year earlier, in July 1988. The brainchild of former privilege effective January 1, 1986. The new rule stat- NCBE Chair Margo Melli, the MEE was designed ed: “Any person who produces a diploma of gradu- to assist the smaller jurisdictions, like West Virginia, ation from the College of Law of West Virginia shall by offering professionally prepared, high-quality not be required to take the bar examination until July questions that could be answered using general 1, 1988, upon which date the diploma privilege shall principles of law or the law of the administering be abolished.” The new rule allowed time for those jurisdiction. West Virginia adopted the MEE and first individuals who were already enrolled at the College administered it in July 1989, also the first test admin- of Law to graduate and be admitted to the bar under istration date for West Virginia College of Law grad- the diploma privilege. During this time, the bar uates after the diploma privilege was abolished. admissions process had to be restructured, all before While we on the West Virginia Board were in July 1989. That was the date of the expected multi- the process of developing new procedures, NCBE fold increase in the number of applicants taking the Director of Administration Anthony Nigro came to bar examination (potentially including all the gradu- West Virginia on at least two occasions to help en- ates of the College of Law, since they would likely sure that everything went smoothly, and smoothly it choose to be admitted in West Virginia). In previous did go. West Virginia still uses the MEE and also years, we had tested a far smaller number—only adopted the Multistate Performance Test sometime those examinees who had graduated from law ESSAYS ON THE CONFERENCE’S 75TH ANNIVERSARY after it came along in 1997. West Virginia also uses our more-than-gracious hosts’ home where we the NCBE investigative services for the character warmed ourselves as best we could and nestled our- and fitness component of admissions. Importantly, selves around the fireplace like a large family at NCBE encourages jurisdictions to seek its assistance Thanksgiving, laughing and talking and enjoying in answering the many questions that may come up one another’s company. It is that personal touch that in the administration of the bar examination or in a makes the Conference so special. character and fitness investigation. Our very able So, congratulations, NCBE, on your 75th anni- staff in the bar admissions office in West Virginia versary. It would be most appropriate to shower you maintains and appreciates its close contact with with many gifts, all made of diamonds, but, at least the Conference. in my case, I hope you will accept instead a heartfelt I have served on NCBE committees and became thank you for all you have done for the bar admis- a member of the NCBE Board of Trustees in the early sions community and a wish for at least 75 more ’90s; I served as Chair from August 1999 until August wonderful years. 2000. This was during a continuing period of transi- tion for NCBE which included the massive under- taking of moving its offices from the longtime loca- MY MEE FAMILY tion in Chicago to its current home in Madison, by Sheldon F. Kurtz Wisconsin. I continued to serve on Conference com- For almost 20 years it has been my privilege to be mittees after rotating off the Board, and through this associated with the professionals of the NCBE fami- long association have become keenly aware of the ly. These professionals include an incredible group of efforts that go into the work of the Conference and all women (with a smattering of men) located at what I the time and talent it takes to make it such an impor- affectionately refer to as the “home office,” as well as tant entity in bar admissions. I have also developed the many academics, lawyers, and judges who con- many, many meaningful friendships and have had tribute their time and talent to the development of wonderful times that I would not have experienced the MBE, MEE, MPT, and MPRE by serving on draft- were it not for my association with NCBE. The Board ing committees, policy committees, or the NCBE and the committee meetings take place in many Board of Trustees. But we know that NCBE is more. interesting venues, and perhaps some that I would It also includes that wonderful group of volunteers not have known I would enjoy so much or been par- who grade essays and performance test exams in ticularly steered toward otherwise. I liked it best Chicago and at home and the connections with the when some event was happening at the location that dedicated bar examiners and bar administrators who the residents were all excited about. I recall one meet- labor in their home states to assure that only the ing not too long after I rotated off the Board where deserving are clothed with the honored title “attor- we were soaked with rain, ponchos notwithstanding, ney-at-law.” And, best of all, I get to call these people while attending a most important college football my friends. I am so personally indebted to the game. (Go, Sooners!!) We retreated to the comfort of Conference for these relationships. I have cherished THE BAR EXAMINER, NOVEMBER SHELDON F. KURTZ is the Percy Over my time with the Conference, I’ve seen it Bordwell Professor of Law at the University of Iowa College grow not only with respect to the quality and quan- of Law; he has been the chair tity of its tests but also by undertaking a service of the MEE Drafting Committee for 17 years. responsibility to create and present quality educa- tional programs to bar examiners and academics every one of my years about a host of issues relevant to bar admissions and in association with test development. I’ve seen the Conference leader- NCBE and look for- ship become a moving force by working with legal ward to many more. educators to better educate law students preparing My NCBE story to enter the profession and I’ve seen it reach out to begins in San Diego (I believe it was 1987) when I assure that diverse groups have a voice and partici- was invited to participate with what I recall was a 15- pation in the testing and admissions process. So person fledgling essay drafting committee. From that Happy Birthday, NCBE, and again, thanks for letting original group I am literally “the last man standing.” me be part of the family. What I remember most about that meeting was how hard we worked. We labored so hard and so long that it wasn’t until Sunday morning as I was leaving DRAFTING BAR EXAM the Hotel del Coronado that I realized I had been QUESTIONS IN HISTORICAL holed up next to the scenic Pacific Ocean. PERSPECTIVE—ARE Within two years of that first meeting the MEE TODAY’S ESSAY QUESTIONS Drafting Committee was reconstituted to a commit- tee of five following a Conference decision to limit BETTER? the number of topics on the MEE to non-MBE topics, by Stuart Duhl and, lo and behold, I found myself nominated as At the Conference’s 75th anniversary, it may be use- chair of the MEE Drafting Committee, a position I’ve ful to look back at the progress that has been made in held ever since. the preparation of bar exam essay questions and to Over the years, the MEE Drafting Committee, look forward to the challenges that lie ahead. Some like the Johnny Cash song, has “been everywhere.” of us who have created bar examination essay ques- We’ve drafted and edited questions “from the moun- tions are willing to admit that it has never been easy tains, to the prairies, to the oceans white with foam.” to draft questions that accurately test legal reasoning And at the same time, somewhat unlike the experi- and analysis. Early on we were reminded of this fact ence of other drafting committee members, I have by James E. Brenner who stated in his book BAR been involved in teaching bar examiners best prac- EXAMINATIONS AND REQUIREMENTS FOR ADMISSION TO tices for drafting essay questions at numerous NCBE THE BAR, “The evidence does show, however, that national educational seminars. there are a good many persons that attempt to draft bar examination questions who are not born with the ESSAYS ON THE CONFERENCE’S 75TH ANNIVERSARY gift and have not acquired it. If a bar examiner is not STUART DUHL is a former chair of the National Conference of gifted as a draftsman, it will be a coincidence if his Bar Examiners and a current questions turn out to be good ones.”1 member of its Editorial Advi- sory Committee. For those of us experienced enough to remem- ber, the Conference in the 1950s and 1960s had a Bar drafted by bar examin- Examination Service Committee which conducted a ers who are busy with program of digesting and cataloguing essay ques- other responsibilities tions. The Conference acted as a clearinghouse for and have limited time bar examination questions given in various state bar in which to draft examinations. Jurisdictions sent the questions and appropriate questions. answers they had used to the Conference and the While in some instances questions are purchased Conference made these available to other jurisdic- from law professors and other persons who might be tions as a resource for generating ideas and answers more competent to draft appropriate questions, it for new essay questions. In 1968 it was reported that seems that very few jurisdictions procure questions during the 13 years of the Committee’s existence it using this procedure. The Conference’s seminars on had accumulated a pool of 4,070 questions and had drafting bar exam essay questions are certainly help- distributed them multiple times, with 13,300 ques- ful, but the quality of the essay questions in many tions going to examiners in the various states.2 states could still be improved. At a minimum, con- At long last and with good cause raised by con- cerns about the “freshness” of questions and the time cerns over the reuse of these questions, including that bar examiners or law professors take when issues of security, the problems with drafting good drafting appropriate questions needs to be carefully essay questions led the Conference to abolish the reviewed and analyzed. For example, consider the question library and develop the Multistate Essay following queries: Examination, which was first administered in 1988. (1) For any given bar examiner-drafted essay The Multistate Essay Examination, for the past 18 question, is the board confident that the years, has been a three-hour examination containing bar examiner is competent to practice law six essay questions.3 in that area and that the question has been One can hardly question the proposition that fully researched before it appears on the questions drafted by a committee composed of bar bar examination? examiners, law professors, and practicing lawyers, (2) If law professors are engaged to draft along with a consultant providing testing expertise, questions, what time allotment are they would be more desirable than the questions drafted given per question and how fresh is their through the state-based methods. Nevertheless, if material likely to be? one looks at the current use of the MEE by only 19 jurisdictions,4 one can only assume that most of the (3) With respect to committees that are draft- essay questions given on bar exams continue to be ing questions for multistate exams created THE BAR EXAMINER, NOVEMBER by the National Conference of Bar Exam- iners, is there assurance that questions are SUPPORT FOR CHANGE developed with a variety of new and cur- IN INDIANA rent legal issues or is there sufficient by Mary Godsey turnover on those committees in order to The greatest value of the Council of Bar Admission assure fresh ideas for questions? Administrators always has been its ability to provide (4) What relevant studies have been under- a group of experienced individuals who are available taken in recent years to make sure that at all times to assist other administrators by generous the content of the essay questions used on sharing of expertise and steady mutual support. bar examinations is relevant to the practice Jurisdictions vary according to size and local inter- of law? 5 ests, but all administrators have common issues with board members, applicants, law schools, courts, and During my time as a bar examiner for the State of bar associations. Of course, after hearing about prob- Illinois, I was deeply concerned about the drafting of lems that other jurisdictions are facing, I am often essay questions. Having now recently become an reminded of my great-grandmother’s expression adjunct professor at a law school in Chicago, and that it is “better to stay with the Devil you know.” having gained more detailed knowledge of the per- spective of applicants and their assumptions about How the CBAA has always been filled with help- bar examination questions and their relevance to the ful individuals from every jurisdiction is a mystery. practice of law, I continue to have that concern. I While some of these individuals have come and gone would encourage more states to utilize the new MEE during the years, the character of the individuals has questions or to develop their own study or checklist remained the same. I have never asked a question of to assure that their drafting of essay questions meets or sought assistance from fellow administrators today’s changing standards of relevance. without receiving prompt and sound advice willing- ly given. Beyond that, I have consistently received ENDNOTES sympathy, kindness, and understanding in the 1. Brenner, BAR EXAMINATIONS AND REQUIREMENTS FOR ADMISSION responses—when all of the administrators are TO THEBAR (1952) at 17-18. already busy. It is priceless to be able to contact hun- 2. THE BAR EXAMINERS HANDBOOK (1968) at 175. dreds of other administrators, character and fitness 3. In 2007, the MEE will be expanded to nine questions, with jurisdictions able to select the questions they wish to adminis- investigators, and bar examination managers that are ter—see 75 BAR EXAMINER 6 (Aug. 2006). involved in similar work because for most of us there 4. Perhaps the new MEE will be utilized by more states. is no one else within the jurisdiction that shares the 5. What is relevant today? See, for example, “Business Intel- ligence: ‘The Long Tail’ Wags Legal Minds,” LAW TECHNOLOGY same kinds of challenges. It has always been so. NEWS (9/11/06). Some things have not always been as good as they are now. I think our Indiana Bar Examination has been improved. Indiana has always had consci- entious board members who worked hard on writing ESSAYS ON THE CONFERENCE’S 75TH ANNIVERSARY and grading fair questions and always gave the test MARY GODSEY is the Executive Director of the Indiana Board their best efforts. When I started working for the of Law Examiners. Indiana State Board of Law Examiners in 1982, the bar examination consisted of 28 essay questions writ- ten and graded by the board members. Examinees obtaining a legal edu- had to answer 25 questions, with each question cation. But while grad- worth ten points and a passing score set at 175 out of uation from a law a possible 250 points. school is not achieved easily, not all who Since 2001, Indiana has used the Multistate Bar graduate will be suit- Examination, two Multistate Performance Test ques- able or ready for tions, and six Indiana essay questions. The current admission at the time of graduation. In addition to system uses a total combined scoring system that is those who cannot pass a bar examination, there are scaled to the MBE. In addition, Indiana requires a those who have mental health issues, addiction or scaled score of 80 or above on the Multistate Profes- abuse challenges, or other character and fitness sional Responsibility Examination. issues that do not permit members of good con- This dramatic change did not occur quickly and science to approve their licensing without conditions the decision to change was not made lightly. The or supervision. Since Indiana has instituted condi- board and the Indiana Supreme Court spent years tional admission, board members are better able to considering possible examination combinations and deal with those difficult decisions that used to be passing scores and their possible consequences. The limited to admitting, denying, or deferring admis- resulting change was due to a belief that the test sion of applicants. The ample articles, discussions, combined the best of all testing worlds existing at and programs on these matters presented by both the that time. I don’t know that different people have CBAA and NCBE aided Indiana in creating a suc- passed the current Indiana Bar Examination than cessful program of conditional admission while would have passed the former examination. I do avoiding painful errors in this sensitive area. know that an intelligent choice was made after much Jurisdictions have benefited from the expansion consideration of expert testing information and of the National Conference of Bar Examiners in other advice. The availability of the CBAA members and ways. Not every jurisdiction can afford to hire its the NCBE experts made that entire process possible. own experts. The experts at NCBE are available and The same kind of assistance that has been avail- generous in providing advice and information. There able for bar examination issues has been available is no request too small or large for their response. We from the Conference and the CBAA on character and know that their patience is long, as many of us have fitness issues. Board members take seriously the task had to receive the same information more than once. of protecting the public as well as having deep The articles published in THE BAR EXAMINER have appreciation of the time, effort, and money spent in provided detailed and scholarly information in a THE BAR EXAMINER, NOVEMBER reliable written reference form. The National familiarity with the Conference to offer these few Conference’s volunteers and employees are extreme- thoughts. ly gracious. It was not always thus. This organization To pretend that there are not issues on which has become better and better. legal academics and bar examiners often disagree It is impossible to forecast how all the current would be folly and would indeed draw into question issues in bar admissions will be resolved or what one’s credibility. Thus, it is better to acknowledge new ones will arise. The organizations are better those differences at the outset. Most recently, the than ever, the past is informative, the present is inter- hottest hot buttons have involved the raising of the esting, and the future is unknown. Whatever the cut score in many jurisdictions, and for years a few future may hold in bar admissions, we who work legal educators have believed that the bar examina- in the field will be better prepared for having the tion should be abolished entirely, either because of CBAA and NCBE than we ever could have been the overall quality of the exam or because of its neg- without them. ative impact on our strong desire to have a more racially diverse legal profession that would be, because of that diversity, a better qualified profession A PERSPECTIVE FROM more capable of meeting the legal needs of all seg- LEGAL EDUCATION ON THE ments of society. For many educators there have also been concerns about whether certain types of ques- 75TH ANNIVERSARY OF tions (e.g., “Have you ever declared bankruptcy?”) THE NATIONAL are appropriate in examining an applicant’s charac- CONFERENCE OF BAR ter and fitness to practice law. EXAMINERS While differences of opinion on these issues are important and must be acknowledged, they do by Carl C. Monk not detract from, and indeed they reinforce, the I am pleased to congratulate the National Conference positive contributions of the National Conference of of Bar Examiners on the occasion of its 75th Bar Examiners, an organization that has enabled Anniversary, and to offer a few thoughts on the work legal educators and bar examiners to engage in con- of the Conference from the perspective of a legal structive dialogue on their differences. Sometimes educator who has worked with the Conference for that dialogue has been informal, but on repeated the past fifteen years. occasions the Conference and the AALS have I should begin with a caveat—there is much cosponsored formal programs that have facilitated work of the Conference with which I am not familiar the dialogue. or only vaguely familiar. Nevertheless, the cooper- In 1995 the Conference, the AALS, the American ative ventures in which the Conference and the Bar Association Section of Legal Education and Ad- Association of American Law Schools (AALS) have missions to the Bar, and the Law School Admission engaged in the past years have given me enough Council cosponsored a program on the Americans ESSAYS ON THE CONFERENCE’S 75TH ANNIVERSARY with Disabilities Act at which testing accommoda- CARL C. MONK is the Executive Director of the Association of tions for law school applicants, law students, and American Law Schools. He has law graduates taking the bar examination were dis- worked on numerous projects cussed. A similar conference was repeated in 1997. jointly sponsored by the AALS and NCBE. These conferences helped law professors, bar exam- iners, law school staff, and others to see the difficul- In addition to co- ties faced by all of us in making decisions about pro- sponsoring programs, viding appropriate accommodations while maintain- the Conference has ing the integrity and fairness of our examinations for also provided speakers all students and applicants. for programs relating More recently, the Conference formed a Joint to testing at AALS annual meetings. These presenta- Working Group on Legal Education and Bar Ad- tions have demonstrated that bar examiners and missions with the AALS, LSAC, the ABA Section, legal educators have access to a rich resource of and the Conference of Chief Justices. In 2004, these information about how to design and grade a fair organizations sponsored a two-day conference enti- and meaningful examination when they interact tled “Examining the Landscape of Legal Education with the Conference’s top quality psychometricians. and Bar Admissions,” at which constituents of all the And the work of those psychometricians has clearly cosponsoring organizations had an opportunity to enhanced the quality of the various multistate exam- discuss the quality and legitimacy of testing in law inations offered by NCBE. school admissions, in law school, and on the bar Conference publications also offer important examination. To be sure, there were sometimes heat- professional development opportunities to bar ed exchanges over initiatives like raising cut scores, examiners and others engaged in testing. The NCBE but the opportunity for dialogue created by the publications never fail to tackle the tough issues and Conference helped all of us understand the chal- raise awareness of concerns; consequently they, too, lenges faced by each other better than we did before. contribute to higher quality bar examinations and to Although this program was cosponsored by five the ability of bar examiners and legal educators to entities, the National Conference of Bar Examiners engage in constructive dialogue. agreed to staff the entire Conference and covered everything from the financial accounting to on-site As I said at the outset, my work with the Confer- logistical arrangements. Each of the NCBE staff ence is limited to the examples I have mentioned members with whom I worked in the context of pro- above. Others can undoubtedly contribute more tes- ducing this program displayed the highest level of timony than I to the many positive activities and professionalism, a good sense of humor, and a will- accomplishments of the Conference, but my ex- ingness to go the extra mile to help registrants and perience is clearly sufficient to enable me to salute speakers get the most out of the program. NCBE on its 75th Anniversary and to thank the Conference for its constructive interaction with the THE BAR EXAMINER, NOVEMBER legal education community. So, Happy 75th Anni- BEVERLY TARPLEY is a former chair of the Conference, a former chair of versary, and best wishes for many more good years! the Texas Board of Law Examiners, and a former chair of the ABA Section of Legal Education and Admissions to the Bar. CONTINUING PROFESSIONALISM strong and mutual. At by Beverly Tarpley least two members of the NCBE Board sit on When I joined the Texas Board of Law Examiners in the Section Council, 1975, George Barrow was the chairman and profes- the Accreditation Com- sionalism was the order of the day. His generation mittee is chaired by an ex-NCBE chair, the Bar Ad- accepted it as a responsibility of membership in the mission Committee is chaired by one of our out- profession. When I followed him to the NCBE Board standing administrators, and NCBE folk people in 1981, I found that same spirit. The name has since many of the Section committees. Today NCBE is a changed from the Board of Managers to the Board of strong partner of the law schools of America in the Trustees, but its members and fellow travelers are process of admitting each generation to the best- still dedicated to enhancing the profession without trained bar in the world. expectation of personal gain. Our stable of tests has grown to four, with con- The National Conference was not an infant when stant research and development to improve the qual- I joined, but it was something of a gawky adolescent. ity of each one. Yet while the tests are the most wide- During the twenty-five years that I have observed it ly known feature of the Conference, it was the char- from almost every vantage point, I have seen it come acter and fitness investigation function which first to maturity. From a little-known group constantly brought a valuable service to the jurisdictions and endeavoring to justify its existence, it has moved to a financial stability to the organization. After the first strong, positive presentation of what it does and how grant from the ABA, the Conference received a very well it does it. five-year diminishing grant from the Carnegie The Section of Legal Education and Admissions Foundation to help fund its initial years of operation. to the Bar of the American Bar Association gave birth It was an official of that foundation who suggested to the National Conference in 1931; the American Bar that the Conference establish a character investiga- Endowment gave grants in 1966 for a Bar Examiners’ tion service as a source of funding for its programs, a Manual, and in 1970 and 1971 for the development of service that began operating in 1931. With advances the MBE. But there was a time when NCBE almost in technology, the character and fitness service is ceased to be a member of the ABA family, a period now light years ahead of where it began. The collec- during which both parent and child exhibited a lack tion of jurisdictions using the service has varied over of interest in maintaining the relationship. As we the years, but it has remained a valuable and cost- celebrate our 75th anniversary, the bond is again effective tool for many loyal users. ESSAYS ON THE CONFERENCE’S 75TH ANNIVERSARY On a very personal level, the story remains the labyrinth known (but not by many lawyers) as “psy- same. Strong lasting friendships permeate the chometrics.” A nucleus within the Board became fas- fabric of the Conference. The Board members always cinated by the idea of a valid means to “test the test.” worked hard, but they also looked forward to the This nucleus did not include the late Paul E. camaraderie that would inevitably follow the work Raymond, a member of the Board and a former law of each meeting. school dean who was a recognized authority on the Florida Rules of Civil Procedure. For just a moment, we can pat ourselves on the back for having taken an interest and made it into a Over time the nucleus grew. A slim majority strong positive force—and then we have to get back voted for a “Sunday morning experiment.” A cadre to the work of staying ahead of the game. of recently admitted lawyers was invited to Tallahassee, each of whom had demonstrated superb academic performance. Some held “machine-scored ITEM 32 AND THE LISTLESS testing” in contempt. They were asked to spend the AIR CONDITIONER day submitting to tests that were capable of being scored by electronic machines rather than humans. by Jim Tippin1 Each testing period would be followed by a critique It was about 1964, give or take. Complying with wherein all comment would be recorded for the con- instructions from the Florida Supreme Court, the struction of a transcript. chairman of the Florida Board of Bar Examiners The Florida Supreme Court had, quite recently at ordered me, the executive director of the Board, to that time, built expanded facilities for its bar examin- find a way to administer an English writing test ers. The air conditioning, however, was defective. around the world. I flew to New Jersey, where John The builder was indifferent to my many pleas and Winterbottom of Educational Testing Service saved threats. As space was not a problem, we were able the day. And in the process, he opened my eyes to to accommodate, quite nicely, this diverse group. testing concepts previously unknown to us. Early, and to my and the staff’s utter and pleasant It was about 1966, give or take, on the day of surprise, Mr. Justice Campbell Thornal arrived. the Florida Supreme Court admissions ceremonies. Intrigued by the mathematics and science associated That afternoon, a justice remarked that the Board with the undertaking, he asked only that he be able must find a way to reduce the time between law to observe as “a fly on the wall.” Within minutes of school graduation and admission. This, and more settling in, wet around the neck of his freshly formal exchanges between the Board and the Court, starched dress shirt, he urged me to do something generated a long and heated parliamentary debate. about the air conditioning. I provided a thumbnail Again, John Winterbottom was a tireless and sketch of my irksome conflict with the builders. invaluable resource. In the occupied and absorbed Necktie off and sleeves rolled, Justice Thornal stayed minds of a group of mature, practicing lawyers, he the course. His mere presence immeasurably added would attempt to locate space for the bewildering to the success of that long day. And from this epic THE BAR EXAMINER, NOVEMBER JIM TIPPIN was the executive decisions. In 1968, Board Chairman Raymond director of the Florida Board of Bar Examiners for 22 years and became chairman of the National Conference of Bar the California Bar Examiners Examiners. At a large and open forum associated for 13 years. He was the found- ing chairman of the CBAA. with the annual ABA convention, he restated the foregoing episodes in a much more scholarly and at the same time significantly more humorous manner. experiment came a He campaigned for the expanded use of psychomet- timid decision. rics within the national bar examining processes. The Florida Bar The die was cast. Examination would in- During a twenty-four hour period in February clude queries, then recognized as “items,” on the 1972, Florida Board member and former judge John subject of the Florida Rules of Civil Procedure. The Germany visited the administration of the same responses would be electronically scored at Florida machine-scored bar examination in Florida, New Atlantic University. Jersey, Pennsylvania, and Tennessee. What was its In the meantime, Paul Raymond had become label? The Multistate Bar Examination! In 1974 while chairman of the Board. As a respected scholar, he had he was chairman of the Florida Board, Germany tolerated the “testing the test” intrusion, remaining a became chairman of the National Conference. diligent but amenable skeptic. He came to the post- Oh! By the way . . . about the office air con- examination critique with an evaluation essay on ditioning in 1966? A platoon of workmen appeared item #32. He insisted that the item was well written, out of the early morning fog the very next day. sought essential knowledge, and required analytical Does anyone doubt the staff’s genuine affection for thought. It had performed miserably! Why? “Due to the now late Justice Thornal? fatigue. That is the obvious conclusion,” Chairman Raymond said. Time passed. ENDNOTE 1. A bold “huzzah!” is in order for Mrs. Jean Williams of Fiscal limitations required the eventual reuse of Tallahassee. She served for many years as a program manager items. Item #32 became item #1 on a subsequent ex- for the Florida Board. Her recall talent is renowned. Writing amination. Its prior poor performance experienced this essay would not have been possible without my call upon her talent. further decline. After that, Chairman Raymond was quiet for a week or more during which, on an almost hourly basis, he pressed the staff for data. At the end A SERVICE ORGANIZATION of this rumination, he called the Board together and announced his conclusion. Based upon the surfeit of WE CAN COUNT ON accumulated data, he had become convinced that by Dorothy Johnson these late means to “test the test” did favor public In February 1993, I administered my first examina- protection while, at the same time, produced infi- tion as Admissions Director for the Alabama State nitely more defensible scores and thereby pass/fail Bar and witnessed the beginning of my relationship ESSAYS ON THE CONFERENCE’S 75TH ANNIVERSARY with the National Conference of Bar Examiners. At DOROTHY JOHNSON is the Admissions Director of the that time, we were averaging a week to 10-day Alabama State Bar. turnaround time on our bar examination score conversion. We are now getting this information in The NCBE testing less than an hour, thanks to the great staff at NCBE. and technology staff The Conference is very service oriented. One of assisted me in restruc- the most valuable services it provides is the opportu- turing our grading sys- nity for bar administrators to network with other tem in a fair and equi- administrators across the country. When I need the table way when we advice of a colleague, I can confidently call or write changed the scale for other administrators in the various states for their scoring our essays from a 100-point scale to a six- suggestions or guidance on admission matters. point scale. The NCBE folks were in constant com- munication with our staff to ensure that the process The NCBE seminars and meetings create an would go as smoothly as possible. As a result, the atmosphere for sharing valuable information and scores from the July 2003 bar examination were cali- gaining greater insight into the admissions processes brated perfectly and for the first time in 10 years, we across the country. For example, I have used the did not have a single question from examinees about information on testing accommodations provided at how the grades were computed. these meetings to develop guidelines for processing and evaluating our applicants’ requests for special I continue to enjoy the relationship I have with accommodations. the Conference. The NCBE staff has made my job easier and I have made some great friends whom I In 2003, Alabama changed the format of the bar will treasure forever. examination from a 12-essay examination to a 14- essay examination (6 MEE questions, 2 MPT items, and 6 Alabama essay questions). This change came WALKING WITH THE after more than a year of study by a diverse commit- tee of the Alabama State Bar that included bar exam- CONFERENCE iners, law school deans, and practicing attorneys. by M. Carol McDonald The committee was convinced that the MEE and It was nineteen years ago when I first learned that MPT were both of high quality and would fairly the National Conference of Bar Examiners existed, measure an examinee’s minimal competence. In fact, but the function of the Conference took some time the Alabama Essay Examination is modeled after the for me to comprehend. New to bar admissions, I was MEE so that our essay components are consistent still realizing that I was actually on the testing side of across the board. And despite the extensive comment things, instead of the one who was always taking period required by our supreme court before the the tests. I had, of course, heard of the dreaded bar change could be made, there were no unfavorable examination, having worked with and for many comments about the proposed changes. attorneys before coming to work for the Idaho State THE BAR EXAMINER, NOVEMBER Bar. But to become a part of the attorney admissions M. CAROL MCDONALD is the Admissions Director for the process was a new and different challenge for me, a Idaho State Bar. challenge that was lessened greatly by the donated expertise of the NCBE staff. members, and two Idaho testing numbers were small and manage- MPT items as the essay able when I started, which was good since my little portion of our exami- staff of one was responsible for both admissions and nation. membership. NCBE was then housed in Chicago and When she came to the face and voice of the Conference at that time for Idaho for the meeting, me were those of Editor and Meeting Coordinator Jane also introduced Ann Fisher, with front man Daryl running a close me to the CBAA. It was at her prompting that I second (Daryl answered the phones and was always attended my first meeting in San Diego, and I entertaining). As time went on, I came to know a few returned back to work armed with much information more staff members, but because the Conference’s and the realization that I was not alone in the world services to Idaho were limited to providing the MBE, of bar admissions. I also realized that the Conference our exchanges were only occasional. provided more than just the MBE and the MEE. Since Idaho doesn’t have a board of bar exam- Through the Conference resources, the CBAA has iners, all admissions matters are directed to the continued to educate administrators and keep us bet- Idaho State Bar Board of Commissioners, which is ter informed in all areas of testing and admissions. the body that oversees all state bar responsibilities. Since Idaho is small in applicant numbers, staff, In the early ’90s, it became apparent to the Board that and resources, I have come to depend upon the providing twelve essay questions for each exam was Conference’s assistance in many other ways. I asking a lot from the five volunteer members of the remember that the San Diego seminar contained a Bar Exam Preparation Committee. It was around the session on something called test reliability. I came same time that the Conference introduced the MEE. back to Boise wondering how in the world I was Hoping that this new exam might lessen the load, going to understand that term, let alone put the the Board invited the former NCBE director of test- information to good use. With each subsequent sem- ing, Jane Peterson Smith, to come to Boise and inar I attended, I did garner some insight as to what enlighten them as to the benefits of this new test. I that topic meant, but it wasn’t until NCBE Director of don’t think any Board members from Idaho had Testing Susan Case came to Boise and provided a much contact with the Conference before Jane’s very clear and complete presentation to a small com- visit, so not only did her visit solidify the Board’s mittee reviewing the bar exam process, which ultimate decision to adopt the MEE, but it also included the Idaho Supreme Court Chief Justice, the opened the door for the MPRE, which Idaho began president of the Bar, and the dean of the University requiring in 1992. Today we use six MEE questions, of Idaho School of Law, that the concept was solidi- four other essay questions drafted by our committee fied in my mind. Susan’s ability to explain scaling, ESSAYS ON THE CONFERENCE’S 75TH ANNIVERSARY converting, and reliability in layman’s terms ulti- being old enough to remember back to the early days mately resulted in the addition of scaling to our of the Conference than about my skill as a writer. process, and after hearing her explanation and that My first personal contact with NCBE was in of Director of Research Michael Kane, I am now 1980, when my predecessor at the New York Board of somewhat capable of explaining to applicants and Law Examiners, Jim Fuller, backed out of an August others why Idaho is scaling its essays to the MBE. meeting in San Francisco at which he was scheduled And it’s through the assistance of Kent Brye, the to speak about New York’s experience with the MBE Conference’s IT director, that this final piece of the and portability of scores. Believe it or not, New York puzzle is put in place after each grading session. was a latecomer to the MBE, not participating until Idaho has grown in applicant numbers (and staff July 1979. I had been with the New York Board for numbers—we are now two!) through either the bar about 11 years by then, so I knew about the exam or reciprocity, as has NCBE grown, providing Conference, but only from the vantage point of sub- guidance and expertise to Idaho along the way. mitting expense vouchers for my board members, Besides adding the MPT to our cadre of tests, we John DeGraff and Jack Holt-Harris, who were both send question drafters and graders to those topic- very active in the organization. specific seminars as well as committee members to Anyway, about a week before the meeting Jim the Conference’s educational seminars. In addition, I discovered that he couldn’t make it and volunteered served for a time on the NCBE Education Commit- me to go in his place. While San Francisco was one of tee, which provided me more opportunities to learn my favorite cities, I was not particularly excited and grow as an administrator. about speaking before a group of people I had never All in all, it has been a smooth path that Idaho met. To make things worse, the hotel where the pro- has walked with the National Conference of Bar gram was to take place was completely booked, so I Examiners and we thank you for your contributions had to stay several miles away. On the morning of to our admission process. my presentation, I was a wreck as I left my cab and walked into the hotel behind two women who Congratulations, NCBE, for 75 years of growth seemed to be as confident as two fashion models on and guidance! a runway. I later found out that they were Catherine Baber and Linda Knight from Mississippi and were SOFTENING UP THE also attending their first meeting. In any case, my speech went well, everyone was very kind and wel- LEARNING CURVE coming, and I was hooked on the organization. by Nancy Carpenter I am grateful to NCBE for several things, the first When I was first asked to write for this special edi- of which is its function as a teaching entity. tion of THE BAR EXAMINER I was flattered; later I real- Everything I know about testing I learned through ized that the invitation was probably more about my this organization. I went into my first job at the board by virtue of having passed a civil service exam (for THE BAR EXAMINER, NOVEMBER NANCY CARPENTER worked for accommodations. For example, there are invisible the New York Board of Law Examiners for 34 years, serving disabilities, there are appropriate and not-so-appro- as executive director from 1996 priate accommodations and the most obvious to 2004. accommodation is not always the most appropriate, a person can be disabled but not need an accommo- stenography, no less). I dation, sometimes the people with the most serious learned that the board disabilities ask for the most minor accommodations, members and their and some people are willing to exploit or even fake a assistants (all lawyers) disability to obtain a major accommodation. wrote the bar examina- tion questions and that Learning so much at each meeting triggered my the staff of which I was a member typed them, had desire to learn more. I can say with certainty that I them printed, passed them out to examinees, collect- never attended one that I didn’t get something out ed the answers, and returned the answers to the of, sometimes from another administrator or bar lawyers to grade. Some people passed and some peo- examiner rather than from a speaker or presenter. ple failed. As I began attending more meetings of the When I became the director of the New York Board CBAA and the Conference, though, I began to learn in 1996, I can honestly say that I felt competent to much more. hold that position, I was confident I knew what I was doing, and I was open to learning better ways I learned that there are actually criteria, or “spec- to do it. ifications,” for tests. You don’t just make up a series of questions; you need to know what you are testing Even with all the useful knowledge I gained, for, whether your test is valid for that purpose, and though, I have to say the thing for which I am most whether the test is reliable, among other factors to be grateful to the National Conference of Bar Examiners considered. I saw demonstrations of computer-based was the opportunity to make friends from all over testing practically from its inception. Much to my the United States, even as far away as the Northern amazement, I saw numerous methods of cheating at Mariana Islands. Just being able to talk to people a time when I was still naïve enough to think that who share your problems regardless of scale is really nobody would dare cheat on the bar exam! (Let me comforting at those times when you feel like your job add, however, that during my tenure in New York, I is one of the most thankless there is. When you have never saw any sophisticated methods of cheating— law school deans coming at you from one side, and our candidates opted for the old-fashioned “copy- disgruntled law students (or worse yet, their parents) off-your-neighbor” method.) Even before the Ameri- coming from the other, it helps to know that someone cans with Disabilities Act, I was aware that it was in California, or Illinois, or Idaho, or Massachusetts necessary and right to provide accommodations for is going through the same thing. Name a state, and I people with disabilities to make the examination can name the bar administrator of that state. Even accessible to them, but believe me, I learned much, more impressive is the fact that I probably consider much more about the complexities of providing that person a good friend, and for that I am most ESSAYS ON THE CONFERENCE’S 75TH ANNIVERSARY thankful for my association with the National MARYGOLD S. MELLI is Voss- Bascom Professor of Law Conference of Bar Examiners. Happy Anniversary, Emerita at the University of NCBE! Keep up the good work. Wisconsin Law School. She is a former chair of the Nation- al Conference and currently serves on its Editorial Advi- THE BEGINNINGS sory Committee. OF THE MEE ably, much of the atten- by Marygold S. Melli tion and resources of In 1980 when I joined the NCBE Board of Managers the Conference were (as the Board of Trustees was then called), I was very devoted to that project. interested in working to improve the essay portion of Yet I soon realized that those at the Conference were the bar examination. I had just completed two terms equally concerned about improving the essay por- on the board that gave the Wisconsin Bar Exami- tion of the examination, which bar examiners in most nation and I had learned firsthand of the problems jurisdictions considered to be the core of the bar that drafting and grading essay questions presented examination. to state bar examiners. Since its founding in 1931, the Conference had Although Wisconsin is known (or is perhaps sought to improve the quality of the essay questions infamous) for being the only state that does not that the jurisdictions used in their exams. It had pub- require applicants for admission to take a bar exami- lished articles in THE BAR EXAMINER and sponsored nation, that exemption is limited to graduates of seminars on the problems connected with essay the two Wisconsin law schools. Therefore, graduates question writing and grading. In fact, before em- of law schools outside of Wisconsin who seek admis- barking on my mission to gather support for improv- sion to the practice of law in Wisconsin must take ing the essay process, I read many of those articles the bar exam. Some might be surprised to learn that carefully and learned from the seminars. I even Wisconsin gives its bar examination to more appli- wrote a short description on “How to Draft an Essay cants than a significant number of jurisdictions; for Question” for one of the seminars. I had also sought example, in 2005, of the 54 jurisdictions that admin- help from the Question Library, a clearinghouse of istered the MBE, Wisconsin had more examinees bar examination questions instituted by the than 16 other jurisdictions. Conference in 1952. This library contained questions submitted by various jurisdictions to provide ideas At first I was somewhat pessimistic about the for bar examiners drafting new questions for their prospects for essay exam improvement because the own examinations. The quality of the questions—as I Conference had just eight years earlier revolution- sadly learned—was very uneven. ized the bar examination process with the intro- duction of a multiple-choice, machine-graded exam- But the more I learned of the process used ination that covered six basic subjects. Understand- to develop the questions on the MBE, the more I THE BAR EXAMINER, NOVEMBER realized that many jurisdictions could not afford secretary of the State Bar Board urged me to accom- the resources needed to develop a similarly high pany her to a meeting of the Conference. It was an quality essay exam. Therefore, I became an early eye-opener! When I took the bar, there was no advocate of the development of the Multistate Essay Multistate Bar Examination—at least not in North Examination, which the Conference began work on Dakota. There were only essay questions, three days in 1982. The goal was to offer jurisdictions a series of of essay questions drafted by the three members of essay questions that had been painstakingly devel- the Bar Board (now the Board of Law Examiners) oped and tested along with comprehensive analyses covering eighteen different subjects. I do not remem- for grading the answers. The questions were de- ber the questions but I do recall feeling grateful that signed to be answered either using general legal the title of the particular subject was listed at the top principles or under the specific law of the jurisdic- of the page for each set of questions, so if nothing tion administering the test. The first exam was given else, I at least knew the subjects on which we were in 1988, about a year before I began my term as Chair being tested. of the Conference. I was, of course, elated. The quality of bar examinations has improved In the years that have followed, adoption of the greatly since that time, due in great part to the efforts MEE has been slower than I had hoped; only about of NCBE. North Dakota used the MBE for the first a third of the jurisdictions currently administer the time in February 1976. In July 1999 the Board ceased MEE. The subject matter coverage of this test will using a local essay examination and used both the soon be increased to include the six MBE subjects as Multistate Essay Examination and the Multistate well as the traditional non-MBE subjects. This expan- Performance Test for the first time. Although there sion of test content may make the MEE attractive to was a momentary feeling of loss of local identity, that more jurisdictions. While established patterns are feeling quickly dissipated when we realized the many difficult to change, if jurisdictions come to recognize advantages of a thoroughly vetted MEE and the abili- the advantages of the outstanding process used to ty to test practical practice skills through the MPT. develop the MEE questions, perhaps more of them Of course there were some bumps along the way. will consider adopting it. One case in particular comes to my mind. Our bar examiners at that time required a passing score in both the MBE and the local essay examination and HAPPY 75TH BIRTHDAY, did not combine the scores. On this occasion there NCBE! were some irregularities in the administration of the by Hon. Gerald W. VandeWalle MBE. One of our applicants had not received notice of the change of location for the examination and I was introduced to the National Conference of Bar during the examination there were noise distur- Examiners around the time of its 48th birthday, bances caused by a meeting in the next room. shortly after I joined the North Dakota Supreme Additional time was given to complete the MBE. Court. Our then Clerk of the Supreme Court and One applicant did not obtain the minimum score ESSAYS ON THE CONFERENCE’S 75TH ANNIVERSARY HON. GERALD W. VANDEWALLE courts and courts of appeals of the states, we have is the Chief Justice of the North Dakota Supreme Court and a learned at least the rudimentary basics of testing and former chair of the Conference the significance of an examination that is itself con- of Chief Justices. tinuously tested to improve its accuracy and elimi- nate bias and unfairness in the testing process. on the MBE but did NCBE is a leader in character and fitness issues receive a relatively and its services are invaluable to the Board, especial- high grade on the es- ly when an out-of-state applicant applies for admis- say portion. After the sion. NCBE leads in the discussion of issues involv- Board informed the ing applicants with disabilities who are entitled to applicant that he would receive a negative recom- accommodations in the testing process. The special- mendation for admission, he pursued a formal ized knowledge NCBE acquires and shares with the review under the admission to practice rules, alleg- examiners and the admitting courts of the several ing that the high grade on the essay examination states makes a difficult task easier and provides a offset the failing grade on the MBE. The hearing level of uniformity that would not otherwise exist. examiner recommended that the Board give the applicant a favorable recommendation. The Board Reassuring, to me, is the NCBE initiative to con- adhered to its previous negative recommendation sider ever better methods for admission of applicants and the applicant petitioned the North Dakota to the bars of our states. As the methods by which Supreme Court for review of his application. The we learn change, as technology changes, as the case resulted in five separate opinions, four of which practice of law itself changes, it is necessary that we approved admission. One of the opinions, not mine, keep abreast of those changes and adjust our stan- relied heavily on information supplied to the Board dards for admission to practice law accordingly. from Joe Covington, NCBE’s then director of testing, NCBE is our lodestar. Our courts, our law schools, noting that we were one of the few states that did not our bar examiners, our lawyers, and our lawyers-to- combine scores and recommending that the Board come have and will continue to benefit from the combine the MBE and essay scores for purposes of Conference’s accomplishments. It is time to celebrate determining pass/fail status. Although the Board 75 years of success. refused to change the scoring procedure for a test that had already been given, it changed its policy for the next examination. A PERSPECTIVE FROM THE I note the above case because for many judges NEWEST TRUSTEE the concepts of scaling and combining scores on the by Bryan R. Williams bar examination were foreign to us. NCBE realized For the past ten years I have had the privilege of the problem. Through a series of NCBE-sponsored serving as a member of the New York State Board seminars with the justices of the various supreme of Law Examiners, the body responsible for the THE BAR EXAMINER, NOVEMBER drafting, grading, and administration of the New BRYAN R. WILLIAMS is in private practice in New York; he is a York Bar Examination. While a member of the New member of both the New York York Board, I became involved with the National Board of Law Examiners and the NCBE Board of Trustees. Conference of Bar Examiners, first through my mem- bership on the Multistate Bar Examination Policy Committee, and later through interaction with vari- proved to be invaluable ous NCBE testing experts and other staff members for many jurisdictions. who have assisted the New York Board on a variety In New York, and of test-related issues. throughout the coun- try, bar examiners face In August 2006, I was honored to be named as a issues that go far beyond simply writing and grading member of the NCBE Board of Trustees. As a private a bar examination. New York is one of the largest practitioner, I, like most lawyers, have limited time U.S. jurisdictions in terms of the numbers of candi- to dedicate to ventures that do not directly affect my dates tested on each exam, and our bar examiners daily practice. However, when given the opportuni- write the essay portion of our exam. As such, the ty to serve on the Board of Trustees, I readily accept- issues central to the administration of the New York ed. As the newest member of the Board, and a bar exam, and the policy concerns in New York, may be examiner from one of the larger jurisdictions, I have somewhat different than those of jurisdictions who been able to consider the important role that NCBE test fewer applicants or whose examinations consist plays in attorney licensing and the impact that this entirely of multistate tests, but all jurisdictions must organization has on the profession. deal with issues such as standard setting, reliability Serving on both the MBE Policy Committee and and validity of tests, and new and different testing the NCBE Board has allowed me to associate with methods. These issues are among the many for dedicated volunteer attorneys who are willing to which NCBE provides guidance and expertise. give time and energy in order to enhance the legal The New York Board is currently engaged in a profession by ensuring that quality persons are the controversial policy issue that has been visited by a ones being admitted through our licensing process. few other jurisdictions. The Conference’s assistance My work with the Conference has already been in performing demographic studies, as well as lend- highly rewarding as it has provided me with the ing its expertise in analyzing the data received, has opportunity to give back to the legal profession been invaluable to the New York Board. while working with dedicated attorneys in a colle- gial environment. As the NCBE Board’s newest member, I look for- ward to the strengthening of the tests that we pro- NCBE is well known for its production of the duce and the challenges that these other testing multistate components of the bar examination; its issues will present both to the Conference and to bar assistance to bar examiners and administrators, espe- examiners in the years to come. cially on testing issues, while lesser known, has ESSAYS ON THE CONFERENCE’S 75TH ANNIVERSARY
"THE 75TH ANNIVERSARY OF THE NATIONAL CONFERENCE OF "