California has just announced that it will soon be making a big splash regarding how prospective attorneys are tested for their licenses. Though the state has always done things differently by administering its own exam, it’s now going one step further: doing away with the only company that has until now administered all U.S. bar exams, and hiring a new competitor.
You Down With UBE?
It should surprise no one that Golden State prefers to do its own thing rather than join the bandwagon. The bar bandwagon, by a slight majority (36 states) has been to adopt the Uniform Bar Exam (UBE). The UBE is written and coordinated by the National Conference of Bar Examiners (NCBE). It tests knowledge and skills in areas of law that are substantially similar across states in the United States.
The UBE's popularity stems from its various advantages. It provides a consistent and standardized measure of competency for bar admission across participating states, streamlining the process for both applicants and state bar examiners. And perhaps most notably, UBE scores are “portable,” or transferable to other states that have adopted the UBE. This allows lawyers to practice in multiple jurisdictions without retaking the exam so long as they score the minimum in each state.
But California’s head honchos apparently decided a long time ago that uniformity with the rest of the country doesn’t serve them. Instead, California has always had its own bar exam, and it’s considered by some to be the most difficult in the country.
California’s Custom Test
Reasons that have been given for administering a bespoke exam include the state's large and distinct legal market (specializing in entertainment law, technology law, and environmental law), as well as an accompanying complex body of laws and regulations. California also has a strong emphasis on consumer protection and a history of pioneering legal reforms.
This has been the basis for requiring lawyers to demonstrate comprehensive knowledge of California-specific laws and ethical standards through the state’s own rigorous bar exam. Despite the challenge, California still has the second-highest number (after New York) of people sitting for its bar exam.
Cali Bar vs. UBE
Structurally, the California bar exam does parallel the UBE in a number of ways. Both the UBE and the Cali test have the three general components of a multiple-choice section, essay questions, and a “performance test” that tests hypothetical cases. But California's bar exam is different from the Uniform Bar Examination (UBE) in several ways.
First, everything is harder in California. The UBE is administered over a grueling two days, but California decided that wasn’t brutal enough, because their test is three days long.
And because California’s bar exam is designed to test knowledge of California law and procedure – something too specific to be taught at the country’s top law schools, which send graduates to many different states – test takers have to prepare a lot more additional niche knowledge compared to the more general UBE. Unless you went to a state law school on the West Coast, you’ve got your work cut out for you in bar prep.
The UBE's minimum passing score varies by jurisdiction, but is somewhere between 260-270 out of 400, depending on the state. This amounts to about a 66% score to pass the UBE. California's passing score is 1440 out of 2000, which amounts to needing a 72% score to pass. Though these percentages aren’t exactly comparable due to the different nature of calculating final scores from raw scores, the California exam is widely considered as having a stricter standard to pass.
All this is why many people consider California to have the most competitive bar exam in the nation. Cali’s bar passage rate has long been one of the lowest in the country, UBE or not. There was a 34% passage rate for the February 2024 administration. Compare that with a 54% passage rate for the UBE of the same month, and a 73% passage rate for the one prior.
Though California likes doing things its own way, its bar exam has always been written by the NCBE — until now.
Broke Bar Contracts Kaplan
The contract with the NCBE hasn’t been cheap. According to a memo from the California bar, its Admissions Fund is projected to be insolvent by 2026, with a current forecast of $3.8 million in deficit spending. This is despite the fact that the NCBE is supposed to be a non-profit – with $151 million in assets.
Now, after a long time riddled with money problems, California is switching providers from the NCBE to Kaplan Test Prep. The state bar has claimed that the transition will result in a more cost-effective exam, using smaller, vendor-owned test centers and fully remote online exams.
The NCBE, by contrast, requires their exams to be taken in person and requires huge convention-scale venues. This past February, many Californian bar-examinees actually froze as they took their NCBE-run exam in a frigid venue in San Fransisco.
Copyright Concerns
California’s initial plans for a Kaplan-created test came months ago but were halted by copyright concerns. The NCBE had written to Kaplan, warning it that creating test questions based on NCBE tests would be in violation of licensing agreements.
It’s pretty unlikely, though, that Kaplan was planning to copy questions from previous bar exams word for word. As a veteran in the test prep field, they know better. It could be that NCBE was just making bold and general claims that making tests with legal questions was their intellectual property.
In any case, no legal action has ever been initiated. And after negotiations with Kaplan, attorneys for the Cali bar now say they’ve hammered out any copyright concerns.
What to Expect
For one thing, California can expect to save a lot of money. Representatives for the Cali bar said that they estimate that the switch would save them between $2.8-$4.2 million per year, which they say is enough to mostly or entirely eliminate the deficit.
Many consider this move to be important because it sets up, for the first time, a real competitor to the NCBE in the administration of bar exams. Some think that California’s move may encourage other states to adopt their own approaches as well. In Nevada, for example, the state supreme court has posted a proposal for developing a unique multiple-choice exam for the state. Some think that it may follow suite to California on using Kaplan.
Related Resources:
- Arizona Tackles Attorney Shortage by Making Bar Passage Easier (FindLaw's Practice of Law)
- What Is On the Bar Exam? (FindLaw's Law Students)
- Bar Passage Rates Increase for First-Time Test Takers (FindLaw's Practice of Law)
