The UBE, 2 years in: Still ‘too soon to know’ impact of new bar exam

Two years into the implementation of the Uniform Bar Exam, those who helped shepherd the test into Indiana and are responsible for helping students prepare say it’s probably too early to pin down what the exact impact has been.

On one hand, the overall pass rates, at least for the July exam, have increased slightly compared to the handful of years before the pandemic and the ushering in of the UBE.

On the other hand, the change hasn’t been dramatic, and the sample size for results is still small.

“I think it’s too soon to know,” said Anne Newton McFadden, dean of students at the Indiana University Maurer School of Law.

Erin Engels, director of academic and bar success at the IU Robert H. McKinney School of Law, shared a similar assessment.

“I don’t know that it’s enough difference to say it’s a UBE effect,” Engels said in comparing recent scores to pre-pandemic bar exam scores.

Indiana implemented the UBE for the July 2021 test. When the state decided to adopt the exam in 2020, it joined more than 35 other states in doing so.

According to the National Conference of Bar Examiners, which developed the UBE, there are currently 39 states that have adopted the exam, plus the District of Columbia and the Virgin Islands.

The two-day exam consists of the Multistate Performance Test, the Multistate Bar Examination and the Multistate Essay Examination.

The first day of testing involves six essays from the MEE and two items from the MPT. The second day of testing involves 100 questions from the MBE for three hours and another 100 questions from the MBE for another three hours.

The UBE is meant to test knowledge of general law principles, legal reasoning, factual analysis and communication skills.

Up, down and up again

The overall pass rate for the July 2023 bar exam in Indiana was 70%, up 2 percentage points from last year’s July exam and marking the highest non-pandemic pass rate since 2015.

The last time the overall pass rate for all takers got to at least 70%, other than August 2020 — which was an open-book, remote test because of the pandemic and faulty exam software — was July 2015, when the overall rate was 74%.

That test was the final in a long run of rates in the 70% range dating back to at least 2002. The highest July pass rate recorded in that time was 82% in 2008.

Immediately preceding the pandemic and implementation of the UBE, Indiana’s July pass rates changed little from year to year, staying in the mid-60% range from 2016 through 2019.

Knowledge of Indiana law

Created in late 2018, the 14-member Study Commission on the Future of the Indiana Bar Examination was tasked with reviewing the state’s previous bar exam and recommending whether Indiana should adopt the UBE.

The commission did recommend adoption in a 47-page report published in December 2019, but three members disagreed with that decision.

In part, they cited a concern that students wouldn’t learn as much Indiana law.

“If Indiana were to adopt the UBE, bar review providers would of course discontinue Indiana topics,” they wrote. “In addition, and perhaps more importantly, Indiana law schools would no longer have the need or incentive to offer courses on Indiana subjects, such as Indiana Constitutional Law and Indiana family law.”

Court of Appeals of Indiana Judge Nancy Vaidik, who was vice chair of the commission and supported adopting the UBE, said she thinks students are still getting a sufficient knowledge of Indiana law.

That’s in part, she said, because there aren’t that many differences between Indiana’s laws and the laws of other states.

Vaidik said she’s also confident because of the requirement that applicants admitted to the practice of law on a UBE score — whether in Indiana or elsewhere — complete a course that’s specific to Indiana law within six months of the applicant’s admission to the Indiana bar.

Engels, who has been in her role for only about four months, said she sits in on faculty meetings and sees there is still an emphasis on Indiana law, especially for faculty who are also practitioners.

“We’d be doing them a disservice if we didn’t focus on that,” Engels said.

McFadden said IU Maurer is a national law school, sending students to about 25 other states after graduation, and she hasn’t seen much of a change in how courses have been taught since the implementation of the UBE.

If anything has changed, McFadden said, it’s the bar preparation program, which she noted will always be adjusted to best prepare students for the exam.

Indiana Lawyer also reached out to the Notre Dame Law School but did not receive a response by deadline.

The ‘portability’ of the UBE

One of the big benefits of the UBE, of course, is the flexibility to practice in other states.

Generally, an applicant who has taken the UBE in a jurisdiction other than Indiana and scored at least 264 can be admitted to the Indiana bar.

Indiana’s minimum score of 264 is among the lowest in the country, according to the National Conference of Bar Examiners. Six states share the lowest required score at 260, and Pennsylvania has the highest at 272.

Engels said the last employment survey for IU McKinney from 2022 showed 193 graduates stayed in Indiana, and the second most popular state, Illinois, was a long way away at seven.

In other words: IU McKinney graduates are staying in state.

As for the July 2023 exam, Engels said, nine indicated they wanted to transfer their score to another state.

One potential hiccup to that plan, though, is that every neighboring state — Illinois, Kentucky, Michigan and Ohio — has a higher minimum score requirement than Indiana. Ohio’s is the highest at 270.

With so many states using the UBE, McFadden said one nice thing is that there’s less pressure on students to figure out where they’re going to work because they can take the exam in Indiana and, as long as their score qualifies, transfer it later.

“We’ve seen that quite a bit,” she said.

That flexibility can work both ways, and Vaidik said she’s hopeful it will start to chip away at the state’s lawyer shortage as others perhaps see Indiana as an option to transfer their score.

“That was one of the big reasons behind the Uniform Bar Exam,” she said, “was its portability.”•