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Georgia State University
In Defense of the PSABE, and Other "Alternative" ThoughtsKristin Booth Glen
Introduction Because I have written extensively elsewhere about my proposal for a Public Service Bar Alternative Exam (“PSABE”), this Symposium issue does not contain a full description.[1] To remedy that omission, and to place my observations in context, I offer a brief synopsis below. The remarks I gave at the Symposium focused instead on some questions I believe should be asked about any proposal for an alternative to the existing bar exam (“EBE”). These include not only the obvious, “Will it be as good, or better, than the EBE in furthering the consumer protection impulse[2] that, at least in part, animates professional licensing examinations?”[3] but also,[4] “Will it avoid or ameliorate the discriminatory results of the EBE, increasing diversity in the profession and access to justice for those who have been under-represented?” Additionally, of course, assuming the answers to the first two questions are affirmative, “Is it viable, both politically and economically?” The rich presentations at the Symposium, in addition to the fine Articles and the discussion they provoked, have caused me to ponder some additional questions. Similarly, both the time that has elapsed between my initial formulation of the PSABE and many conversations, including those with Symposium participants, in which I have been involved have expanded my own understanding not only of the diverse issues that a PSABE must address but also the enormity of what is at stake in any challenge to the EBE. The quest for an alternative, which informs this Symposium, also necessarily raises profound questions about (1) legal education, (2) learning and assessment, (3) the changing terrain of the American legal profession, and (4) our collective commitment to equal access to justice. Without claiming to have all the answers, I want to foreground these issues and suggest that the PSABE remains a viable, if not the most viable, solution.[5] I. The PSABE Proposal The PSABE is intended to be a true performance test, in which applicants would be assessed to determine whether they possess minimal competence in each of the ten to twelve lawyering skills that the MacCrate Report identified as necessary for competent practice.[6] Applicants would spend 10 to 12 weeks in a placement in the court system, or another public service or public interest setting, where they would be evaluated by trained (court or other) personnel as they rotated through a number of practice settings.[7] For example: applicants assigned to assist a judge could do legal research and utilize legal writing and legal analysis skills drafting a decision, or use negotiation skills in settling a case; those assigned to a Self-Representation (Pro Se) Party could, while assisting litigants, demonstrate interviewing, counseling, and fact-gathering skills. Many courts have (mandatory or voluntary) mediation or arbitration capacities or both where applicants could demonstrate familiarity with, and could facilitate, alternative dispute resolution. Additionally, of course, ethical dilemmas frequently arise, requiring an applicant’s skills in their recognition and resolution. Because any bar exam should test skills and knowledge learned in law school, applicants choosing the PSABE would be required to have taken some specified number of credits of law school clinical and/or skills courses teaching the MacCrate skills.[8] Further, to be useful to the court or the placement in which they would work, applicants would take a three- to five-day prep course focusing on the specialized substantive and procedural law utilized in that court and providing practical orientation. Finally, in order to make the placement worthwhile for the court system, and to make concrete and explicit the MacCrate values of pro bono service and responsibility for the system of justice, successful applicants in the PSABE would “owe” the court 150 hours of pro bono time, to be used as the court chose, over the next three years.[9] Having briefly described the PSABE, let me turn to the questions with which I began and to the additional questions raised at the Symposium. In its defense, I promote that the PSABE continues to offer a promising and principled alternative to the EBE. A. Avoiding or Ameliorating the Discriminatory Effects of the EBE Given the studies that exist, it cannot be disputed that the EBE has a seriously disparate impact on non-majority applicants; in New York, for example, two separate studies show that almost three times as many African American applicants fail the bar as non-Hispanic white applicants.[10] A Law School Admission Council (“LSAC”) study has been touted as demonstrating that approximately 78% of African American applicants who persist after initial failure ultimately pass (as opposed to 96.68% for non-Hispanic whites).[11] These figures, however, ignore serious costs, both financial and psychological, to those who are successful only after multiple attempts. Furthermore, these figures ignore both the fact that eventual passage may have occurred in a state other than that in which the applicant first attempted the exam and, most seriously, the so-called “persistence gap”—that 11% of African Americans who failed the bar on their first take never attempt it again. Those non-majority graduates, despite successful completion of law school, are, sadly, forever lost to the profession.[12] Although there are no direct studies, the LSAC study suggests, and anecdotal experience confirms, that the EBE also significantly discriminates against low-income takers.[13] Also anecdotally, the discouraging bar passage rate for non-majority law graduates may depress applications to law school by non-majority college graduates.[14] If we care about increasing diversity in the profession, as most would agree (because, at least in part, diversity, racial and economic, will increase access to justice for poor people and people of color), then any proposed bar alternative should not duplicate the disparate impact of the EBE.[15] Unfortunately, proposals for post-graduate apprenticeships, were we to follow the U.K. models, or even the South African model, tend to disadvantage those who are already “tapped out” of financial resources and whose loans will become due, unless there is adequate financial support.[16] This seems highly unlikely in the present climate. Even the Arizona model, which contemplates paying its participants around $20,000 for their year of service, will not be feasible for graduates with substantial debt.[17] While I claim no expertise or certainty in divining consensus, it seems to me that this difficulty persuaded Symposium participants to reject the foreign apprenticeship models as realistic or acceptable alternatives to the EBE.[18] B. Remedying Lacunae in Legal Education Much of the impetus for post-law school training, regardless of whether it is in lieu of the EBE, is motivated by a general dissatisfaction with the job currently done by legal education in training its graduates for actual practice. This concern was repeatedly raised by Symposium participants, both presenters and attendees. Clearly the EBE does little or nothing to enhance the education that was obtained during the standard three years of law school, nor is it intended to do so.[19] If we are asking any alternative to do what the EBE does not, we will inevitably confront the problem of more time and more money, considerations that militate against those alternatives providing additional training, discussed above. Simply proposing that legal education do a better job is equally unlikely to be effective. That is, more or less, what the MacCrate Report did, and although law school curricula have changed somewhat, there are powerful disincentives to wholesale change. These concerns include the higher cost per student of clinical or skills education and the resistance of at least some more traditional faculty to more skills-based legal education.[20] What we know, however, both intuitively and from experience, is that out of obvious self-interest, law schools will teach to the bar.[21] The benefit of the PSABE is, therefore, less that it provides post-graduate skills training, although there is certainly opportunity for learning enhanced by feedback in a real practice setting, than that it incentivizes law schools to do that which the MacCrate Report implored them to over a decade ago.[22] If students have the opportunity to elect a PSABE and need a given number of skills or clinical credits as a prerequisite, student demand has the strong potential to accomplish what exhortation has not. Like the PSABE, the New Hampshire model largely avoids the problem of additional time and, to a lesser degree, additional expense by its inclusion of additional skills training during, rather than after, law school. As such, I think it is an alternative worthy of support, but with two reservations: First, at least as currently described, the program is limited to the top half of the class, presumably determined by grades at the end of their first year. What Law School Admission Test (“LSAT”) scores do best, albeit still not very well, is predict first year law school grades.[23] If you believe, as many do, that the LSAT, like the EBE and other high-stakes, standardized tests, is, in large part, about test-taking skills, and if you also consider the disparate impact, unrelated to ability, which the LSAT (and first year grades) have on non-majority students, the New Hampshire model may do little or nothing to ameliorate the disparate impact of the existing bar regime.[24] To the extent that it provides a substantial benefit to those who are eligible, both by enhanced educational opportunities and excusal from the EBE, it would appear to reiterate, rather than negate, existing patterns of privilege. One might well argue that the enhanced training would be more useful to, and necessary for, those at the bottom half of the class,[25] but the model as currently proposed denies them the opportunity, reserving it for those who have demonstrated high achievement in their first year.[26] The proposal enhancement will almost certainly require a substantial additional time commitment by those given the opportunity. It may, therefore, also unintentionally but practically exclude students who, for financial reasons, have to work the maximum number of hours permitted by American Bar Association (“ABA”) accreditation standards[27] or those students who have substantial family or community obligations.[28] These apparently inevitable consequences suggest that, albeit unintentionally, the New Hampshire model will discriminate, in a way not necessarily related to ability or competence to practice law, against precisely the same people who are currently disadvantaged by the EBE.[29] My second reservation arises from what should be the embarrassing acknowledgment that three years of legal education apparently does not result in the competence necessary to protect consumers of legal services, but that competence can be satisfactorily ensured by supplemental training (not presently) afforded during law school. If that is the case, why are law schools not already doing it? Furthermore, if it is necessary, why should every student not have access to it? If the resources for the New Hampshire model were to come from the law school itself, it would be unconscionable to discriminate among students;[30] if the resources come from outside,[31] does this even further let law schools off the hook in teaching the skills necessary for competent lawyering? Like the well-intended, but less than entirely effective, “bridge-the-gap” programs increasingly required of law school graduates, the New Hampshire proposal may have the pervasive effect of disincentivizing law schools to “MacCrate” their curricula (in states that might adopt it).[32] C. Testing: Validity and Reliability The Symposium included ample discussion about the need for any alternative to be both valid and reliable. Understandably, these demands are made largely by bar examiners, who need to satisfy their constituencies of the psychometric soundness of what they do, and by the National Conference of Bar Examiners (“NCBE”), which has become, primarily, a testing organization.[33] These are certainly legitimate concerns, but insofar as they are applied to the EBE, it is difficult to find much comfort in what we are currently doing. The most widely relied upon criteria for developing testing instruments are contained in the Standards for Educational and Psychological Testing of the American Educational Research Association (“AERA”), the American Psychological Association (“APA”), and the National Council for Measurement in Education.[34] The Joint Standards, as they are commonly known, have three requirements: (1) validity, (2) reliability, and (3) fairness. A valid test measures what it claims to measure and, where used for predictive purposes, predicts what it claims to predict.[35] Reliability requires that the same test taker, taking the test multiple times, should get roughly the same score—that is, test scoring should be consistent from administration to administration. Finally, fairness requires a test to measure the same skill or knowledge for everyone taking the test; that is, it should neither overpredict nor underpredict the results for any particular group.[36] There is no question that the EBE scores highly on reliability. The sophisticated use of psychometric tools ensures that any particular score—whether a 130 or a 150—on any given administration, is the equivalent of the same score on any other administration.[37] To some lesser extent, the various ways in which scores on the essay portion are scaled to Multistate Bar Exam (“MBE”) scores[38] provides reliability for the entire exam.[39] None of the performance-based alternatives can claim such a high level of reliability because, to a greater or a lesser degree, the subjectivity of the examiner and the varying testing situations cannot match the objectivity of the MBE.[40] However, is reliability the highest goal? Might it instead, when coupled with minimal validity and serious issues about fairness, potentially create a perverse and arguably unacceptable result—a consistent test that does not correlate to the job for which it is testing and that repetitively discriminates against non-majority takers or poor people or both? We know, or at least surmise, that the EBE underpredicts the ability of non-majority takers;[41] at least many of us believe that non-majority takers who are unsuccessful on their first or subsequent attempts are as competent as majority students who pass the first time around. The truthfulness of this belief could only be ascertained if there were a validity study for the EBE, but such a study has never been designed or conducted. How do we know that the EBE tests for and accurately predicts what it purports to test—minimum competence to practice law unsupervised? No validity study, including those of a kind required by the EEOC for all other job tests that have disparate impact, has provided assurance.[42] Validity is the key, the yardstick by which employment tests and, I argue, professional licensing tests should be measured and judged.[43] The EBE has never been validated; that is, it has never been shown to predict what it purports to predict, minimally competent lawyering, because there has been no attempt to define and measure what constitutes competence in practice. Here, the work being done by Marge Schulz and Shelly Zedeck at Berkely offers real promise.[44] Sophisticated instruments, as they develop, allow measurement of competence in a variety of practice settings.[45] This work is crucial to assessment of any alternative, but it will also permit comparison of applicants admitted through the traditional EBE route and those permitted to practice because of (1) a PSABE, (2) successful completion of the Arizona CLABA, (3) an enhanced curriculum, as proposed in New Hampshire, or (4) other alternatives not yet conceptualized. It is only when contextualized practice criteria are available that we will be able to say that a particular testing method is or is not “legally” valid. Until then, however, there is a powerful argument that the PSABE, along with the Arizona proposal, are valid tests of minimal competence, while the EBE is more problematic. Because there is general agreement in the profession that the MacCrate Report accurately captures the skills necessary for competent practice, tests like the PSABE that evaluate all or virtually all of those ten skills are, ipso facto, valid, while the EBE, which tests a small number of skills, is not.[46] Thus, while it is necessary and appropriate to ask whether an alternative would be valid, I believe we can be reasonably certain of an affirmative answer from the PSABE. We should also ask that same question of the EBE. If my experience as a judge for 14 years,[47] and the public views described in the Sally Simpson and Toni Massaro article[48] are even partly true, the EBE may be far less “valid” than the NCBE would have us believe. II. Cross Border Practice Cross-border or multi-jurisdictional practice (“MJP”) is an issue that I did not consider in my previous writings on the PSABE, but it arose repeatedly during the Symposium. MJP is a matter of increasing interest and importance to the profession, as lawyers represent members of a mobile society, with legal problems crossing state and national boundaries, at the same time they are constrained by a state-based licensure system.[49] How we determine entry to the profession, whether by the EBE, the PSABE, or otherwise, is thus an issue that is up for grabs in a different context than that addressed in the more familiar discussions (pro and con) about the bar exam. If we want states to recognize lawyers admitted elsewhere, the most likely course is a testing regime which, short of a national bar exam, is as similar and, in psychometric terms, as reliable from state to state as possible. The EBE can arguably claim superiority over individual, state-based alternatives on this ground. The MBE is a significant portion of virtually every state’s bar exam, and the NCBE is extending its hegemony into a significant number of states through their use of another slightly less standardized product, the Multistate Essay Exam (“MEE”).[50] Thus, it can increasingly be argued that State A should have no question about the qualifications of a lawyer admitted in State B where the tests for admission in both states are similar, if not identical.[51] Here, however, the difference between reliability and validity (not to mention fairness, which individual states might value highly) again becomes critical, especially in a legal landscape that is being radically altered by MJP. If I am correct that the PSABE is more valid, insofar as it tests the agreed upon skills necessary for competent practice (especially if there are effective tools to prove this hypothesis),[52] sister states should have a higher level of confidence in the PSABE than in a test that, by its own account, looks to fewer necessary lawyering skills. There is, however, the question of substantive law, which varies, sometimes significantly, from state to state. If the EBE effectively and validly tests substantive legal knowledge, one might argue that it has a significant advantage over skills-based alternatives.[53] However, the difference in substantive law is precisely the argument for a state-specific essay portion of any bar exam and, indeed, for the state-based admissions regime. Many legal educators believe that, putting lawyering skills aside, what an excellent legal education does is teach familiarity with and skill in the different ways of using different forms of law, like legislation and regulation, as well as case analysis, rather than teaching specific black-letter law.[54] If this premise were generally accepted, the need for a state-specific bar exam might disappear, but to date, it has not. If lawyers are admitted through a performance-based test or experience, they may have to demonstrate knowledge of another state’s law before being admitted to practice there. This is, of course, also the current situation for lawyers admitted via the EBE. While I argue that a well-educated lawyer with proven competence in lawyering skills is capable of learning and applying foreign law as needed (even as she will, in the course of her career, have to learn and apply entirely new law even if she never leaves the state in which she was admitted),[55] many state Supreme Courts, who control the admission process, may not agree. I return to a question that I raised in my initial proposal for a PSABE. Are there some parts of the law that we believe competent lawyers should know, in the sense of having that law in their minds, rather than available through a library, in print, or in an electronic resource? Examples might include statutes of limitation or rules about privilege. Thinking in the context of cross-border practice, they might also include, in a general, rather than particularized, way, where a “foreign” state’s law differs substantially from the norm as, for example, where states have adopted, have not adopted, or have an alternative provision of the UCC or retained ethical obligations as a matter of state law that differ from the Model Rules. If a written test of these abbreviated, black-letter law subjects is necessary for adopting a performance-based bar exam or an alternative,[56] I have one very strong caution and proposal relating to the disparate impact of high-stakes paper and pencil tests on non-majority takers.[57] If we in the profession are committed to increasing diversity within it, we should be alert for, and be willing to question and even jettison, testing mechanisms which unfairly burden non-majority takers but which are unrelated to (or not validated for) the purpose of the tests. Claude Steele and his fellow researchers believe that the mechanism that artificially depresses non-majority takers’ performance is the timed nature of the high-stakes tests they study.[58] There is no question that the EBE, which, for example, allows 1.8 minutes for each MBE question, is a highly “speeded” test.[59] There is evidence, for example, that “doubling the time allowed for the MBE would produce a mean change equivalent to 30 . . . points.”[60] There is also evidence confirmed, I believe by common experience, that speededness is not necessary (or, I argue, even desirable[61]) for competent practice.[62] My proposal is, therefore, a simple one. If a written test is required for any portion of bar admission, including admission in a state other than that of an applicant’s initial admission, double, or even triple, the time. In summary, the PSABE, or other performance-based means of admission should pose no greater difficulty for cross-border practice than the EBE. In fact, because is it more likely to ensure minimum competence, it could profitably serve as the basis for cross-border practice. To the extent, however, that written state law-based admission requirements persist, these tests should be narrowly focused on major state-specific variations from commonly utilized substantive and procedural law and should be administered with the most generous time limits possible. Conclusion: Cost and Politics Most participants in the Symposium seem to have agreed that a performance-based test, alone, or in addition to the EBE or additional performance-based skills training or both are desirable, while they simultaneously recognized the financial and other constraints that make adoption of many of the models unlikely. Presenters on the foreign models of post-law school pupilage describe their models as impractical, if not impossible, to replicate in the US context; at the same time, they also recognized and described the shortcomings in those models.[63] The medical model, which utilizes “standardized patients”—and any parallel effort to use “standardized clients” in legal licensure—is extraordinarily expensive.[64] The Arizona proposal, which is enormously attractive on every other ground, has a very high cost per participant, even assuming the project generates modest fees, and so seems unlikely to provide an alternative for any significant number of law graduates. While both the PSABE and the New Hampshire proposals have costs attached, they would surely be far lower, thus making those proposals more economically viable.[65] The politics of adopting an alternative are both complex and beyond the scope of this Commentary.[66] There are, however, two obvious prerequisites: one is that any alternative be piloted, permitting us to learn from its successes and failures and to fine-tune as necessary. A successful pilot would also provide a model for expansion that could be persuasive to all those concerned with admission to the profession, including the bar, the judiciary, legal education, bar examiners, and the public that utilizes lawyers’ services. Second, at least in any initial stages of transition from the EBE,[67] I believe that alternatives are most politically viable in small states, with one or, at the most, two law schools, where there is (1) a high level of confidence in the school(s) and (2) significant contact between, and respect among, the bar, the courts and the law school(s). Although a return to the diploma privilege seems unlikely, states that meet these criteria may be willing to experiment with, and even to adopt, performance-based alternatives that might be described as “diploma plus.”[68] Both Arizona and New Hampshire fit this model, and proposals in both states have advanced to a “Task Force” stage.[69] I continue to believe that, given substantial support in the profession, the judiciary, and other relevant constituencies, the PSABE might be piloted in my state of New York, but I suspect that the chances might be better in another, smaller state interested in a performance-based alternative that has a high likelihood of diminishing the disparate impact of the existing regime. Whatever, whenever, and wherever, as this Symposium has convincingly demonstrated, change, and a recognition of the need for change, are in the air. The criteria for admission to the profession are not, nor should they be, fixed in stone; they have changed before, and predictably, will continue to evolve.[70] As recently as 50 years ago, many states permitted admission by diploma privilege. One hundred years ago, there was no written bar exam. During the Jacksonian period, anyone could be a lawyer, or rather, one did not need to be “admitted” to anything, or by anyone, in order to do what lawyers do.[71] The South African experience demonstrates, more contemporaneously, that when change is necessary, including the necessity of increasing the diversity of the bar, change can occur.[72] I believe that piloting the PSABE would be change for the better, and that it would remedy the problems that make change desirable—a need for increased lawyer competence and for diversity in the profession and a recommitment to the MacCrate values of professional responsibility and improving the system of justice. It has, at the very least, gotten us started, and the organizers of the Symposium and editors of this Symposium Issue are to be congratulated for their work in moving the discussion forward. * Dean and Professor of Law, City University of New York (“CUNY”) School of Law. I am grateful to Sebastian Riccardi for research assistance and to Moira Meehan for production assistance. As always, the amazing students at CUNY are my constant inspiration. [1]. See Kristin Booth Glen, Thinking Out of the Bar Exam Box: A Proposal to “MacCrate” Entry Into the Profession, 23 Pace L. Rev. 343 (2003) [hereinafter Out-of-the-Box]; Kristin Booth Glen, When and Where We Enter: Rethinking Admission to the Legal Profession, 102 Colum. L. Rev. 1696 (2002) [hereinafter When and Where]. My colleague Larry Grosberg has included some discussion of the PSABE in his article, but my proposal, which has been proposed by committees of the New York State Bar Association (“NYSBA”) and the Association of the Bar of the City of New York (“ABCNY”), differs in several significant respects. See Lawrence M. Grosberg, Standardized Clients: A Possible Improvement for the Bar Exam, 20 Ga. St. U. L. Rev. 841; see also The Committee on Legal Education and Admission to the Bar of the Association of the Bar of the City of New York & The Committee on Legal Education and Admission to the Bar of the New York State Bar Association, Joint Committee Report: Public Service Alternative Bar Examination (June 14, 2002), available at http://www/ abcny.org/pdf/report/Joint Report on the State Bar Exam.pdf [hereinafter Joint Proposal]. [2]. The classic definition of a bar examination’s consumer protection requirement is that it tests (though, even according to its proponents, does not ensure) “minimum competence to practice law unsupervised.” Ann Fisher, Examining Ourselves, Observations of a Bar Examiner: An Interview with John E. Holt-Harris, Jr., B. Examiner, May 1996, at 4. [3]. Dean Toni Massaro spoke what is generally unspeakable in describing the bar exam as the place where “the consumer protection and anti-competitive impulses” come together. Toni Massaro, Remarks at the Georgia State University Law Review Symposium (Jan. 29, 2004). “Official” conferences on the bar exam seldom foreground—or even discuss—the bar exam as an anti-competitive, guild-protection device, but some commentators have done so (in my view) quite persuasively. See, e.g., William C. Kidder, The Bar Examination and the Dream Deferred: A Critical Analysis of the MBE, Social Closure, and Racial and Ethnic Stratification, 29 Law & Soc. Inquiry (forthcoming Summer 2004); Benjamin Hoorn Barton, Why Do We Regulate Lawyers?: An Economic Analysis of the Justifications for Entry and Conduct Regulation, 33 Ariz. St. L.J. 429, 441 (2001). [4]. Lest there be any doubt, I do not, nor have I ever, argued for an alternative exam whose only purpose would be to increase diversity. Aside from concern that such an approach would be an easy target for those who oppose affirmative action, I truly believe that, as a profession, we should do our best to ensure that those who join us are at least minimally competent to practice. For the reasons exhaustively discussed elsewhere, however, I am reasonably confident that the PSABE would perform this function better than the EBE. See Out-of-the-Box, supra note 1, at Part XIII. [5]. Introducing the afternoon session, Symposium Organizer Professor Clark Cunningham asked us to assume that the EBE is entirely satisfactory and to move beyond it to ask how the alternatives proposed could or would be “better.” While appropriate—and provocative—as a discussion device, I cannot accept this formulation. I believe, as do many others, that the EBE is deeply flawed. Even bar examiners agree that it is “not perfect,” Erica Moeser, President and Chair, NCBE, Remarks at the Georgia State University Law Review Symposium (Jan. 29, 2004), or they agree that it is near useless, involving “about 85% memorization,” John T. Berry, Remarks at the Georgia State University Law Review Symposium (Jan. 29, 2004). Furthermore, they agree that the impulse to—and justification for—an alternative is to avoid or at least to ameliorate those flaws. If an alternative arguably does this, it should not also have to be “more” (described as “better”) as, for example, in the suggestion that it should provide additional training or substantial community service. It would, I contend, already be “better” if it better tested the skills of lawyering and did not impermissibly discriminate against non-majority applicants and applicants of limited means. I use the term non-majority rather than “minority” or “of color” because of the implicit values I believe “minority” conveys in reinforcing a Caucasian norm and because of changing demographics that deconstruct the notion of Caucasian or white applicants as a monolithic majority. The term applicants “of color” does not include immigrants from the former Soviet Union, the Balkans, or indeed, applicants from the Middle East, or even those of Arabic descent who may be categorized as “white.” By non-majority applicants, I mean those who differ significantly—usually not always by race or ethnicity—from white, middle or upper class applicants who comprise the majority population in legal education today. [6]. The ten skills are: (1) problem solving, (2) legal analysis and reasoning, (3) legal research, (4) factual investigation, (5) communication, (6) counseling, (7) negotiation, (8) litigation and alternative dispute resolution procedures, (9) organization and management of legal work, and (10) recognizing and resolving ethical dilemmas. See Task Force on Law Schools and the Profession, A.B.A. Sec. Legal Educ. & Admissions to the Bar, Narrowing the Gap 138-40 (1992) [hereinafter MacCrate Report]. This citation is to the full report, with all its commentaries. For an abridged version, more commonly used by practitioners, see Task Force on Law Schools and the Profession, A.B.A. Sec. Legal Educ. & Admissions to the Bar, Statement of Fundamental Lawyering Skills and Professional Values (1992). The MacCrate Report does not suggest that all these skills will necessarily be learned in law school—hence its call for a continuum—but it is clear that a lawyer should possess these skills before she takes “full responsibility for a [legal] matter” See MacCrate Report, supra, at 125. Thus, if minimum competence to practice unsupervised is the relevant standard for consumer protection, see, e.g., Fisher, supra note 2, the EBE fails to test for what is necessary, while the PSABE does so explicitly. [7]. This period was chosen both to give adequate time for evaluation, feedback, and final assessment and to roughly parallel the amount of time spent in preparation by applicants taking the EBE. I have proposed the court system for a number of reasons, including (1) geographical availability for all applicants, (2) the courts’ desperate need for assistance in its justice intentions, (3) the fact that responsibility for admission lies ultimately with the judiciary in most jurisdictions, and (4) the extraordinary fit between its activities and all the MacCrate skills. See Out-of-the-Box, supra note 1, at 417, 426. There is no reason that, if it is acceptable to the appropriate constituents, another public interest or public service setting, like Legal Aid and Legal Services offices or District Attorney and Attorney General offices, could not also be utilized, although there might be a shift in the substantive law utilized from a civil to a more criminal perspective. For a description of substantive areas dealt with in the New York City Civil Court, see When and Where, supra note 1, at 1726-27. Because criminal law and procedure are currently tested on most EBEs, this should not pose a significant problem, so long as adequate supervision exists. The PSABE proposal anticipates extensive efforts to create and test multiple standardized evaluation devices and to train court personnel, all of whom (like those who now grade the EBE) would be practicing attorneys. This work would be done by experienced law school clinical and skills teachers who, in addition, would evaluate applicants along with court personnel during a pilot program in order to uncover problems and fine-tune evaluator training for subsequent use. See When and Where, supra note 1, at 1728 & n.123 (describing the Joint Proposal). The ABCNY and the NYSBA have issued a joint report, entitled the Public Service Alternative Bar Examination. [8]. I have proposed twelve credits. See Out-of-the-Box, supra note 1, at n.478; the Joint Committee Report of the NYSBA and the ABCNY would require eight credits. See Joint Proposal, supra note 1, at 7. [9]. See MacCrate Report, supra note 6, at 140-41. The values are: (1) The Provision of Competent Representation, (2) Striving to Promote Justice; Fairness and Morality in One’s Own Daily Practice, (3) Striving to Improve the Profession, and (4) Professional Development. Id. The 150 hours is an amount similar to that aspirationally suggested by the Model Rules. See Model Rules of Prof’l Conduct R. 6.1 (2000). This additional requirement might be a disincentive to graduates who could not be sure they could commit to it but also serves other purposes. It would require successful PSABE applicants to make time for pro bono in the first three years of their practice, a habit that would, hopefully, carry over into the rest of their professional lives. It would also reinforce one of the strongest (and least honored) obligations of the profession and would also foster ongoing interest in and concern for the system of justice. [10]. In a study conducted by the New York State Judicial Commission on Minorities for the July administration in 1985 to 1988 (“JCM Report”), non-Hispanic whites passed at a rate of 73.1%, while only 31% of African Americans were successful. Other minorities did only slightly better. 1 Rep. of Jud. Comm’n on Minorities 77 (1991). Although the JCM Report compiled its statistics from New York law schools, which included approximately 58% of all takers, these figures were validated in a study conducted for the New York Court of Appeals of all takers in the July 1992 administration. There, 81.6% of non-Hispanic, white takers passed, while only 37.4% of African Americans were successful. See Jason Millman et al., An Evaluation of the New York State Bar Examination, May 1993, at 10-7 [hereinafter Millman, Evaluation]. California figures show twice as many African American first time takers failing as white takers failing. See When and Where, supra note 1, at n.50. [11]. See Linda F. Wightman, LSAC National Longitidinal Bar Passage Study, LSAC Research Rep. Series, 1998, at nn. 55-56 [hereinafter LSAC Study]. [12]. See id. at 1, 32. Concerned commentators have noted this “persistence gap” with alarm. See, e.g., Armando Menocal, Comments: Reflection on the LSAC National Longitudinal Bar Passage Study, B. Examiner, Nov. 1998, at 9. [13]. See Out-of-the-Box, supra note 1, at 403-04. This is certainly the case for the LSAT. See, e.g., Linda F. Wightman, The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequence of Abandoning Race as a Factor in Law School Admission Decisions, 72 N.Y.U. L. Rev. 1, 40-45 and Hol. 10 (1997) [hereinafter Threat to Diversity] (utilizing data from the LSAC Study, supra note 11, to show correlation between LSAT scores); William C. Kidder, The Rise of the Testocracy: An Essay on the LSAT, Conventional Wisdom to the Dismantling of Diversity, 9 Tex. J. Women & L. 167, 184 (2000) (suggesting that studies underestimate “the magnitude of the relationship between SES and race”). [14]. While the most recent LSAT statistics show a modest decline in the percentage of African-American applicants compared to all applicants (from 11.1% in 1998 to 1999 to 10.7% in 2002 to 2003), the truly disturbing statistic is the declining percentage of African-American matriculants, which is down from 3835 in 1998-1999 to 3628 in fall 2003, a decline of 3.7%. LSAC Statistics, Jan. 2004 (on file with Author). [15]. Anecdotal evidence, and an oft-cited study of University of Michigan Law School graduates suggest that non-majority (and, presumably, less affluent) law graduates are more likely to provide legal services to communities of color and to provide pro bono services. See David L. Chambers et al., From the Trenches and Towers: Michigan’s Minority Graduates in Practice: The River Runs Through the Law School, 25 Law & Soc. Inquiry 395, 401 (2000); see also Charles L. Lawrence III, Each Other’s Harvest: Diversity’s Deeper Meaning, 31 U.S.F. L. Rev. 757, 775-77 (1997). [16]. See Nigel Duncan, Gatekeepers Training Hurdlers: The Training and Accreditation of Lawyers in England and Wales, 20 Ga. St. U. L. Rev. 911 (2004); Paul Maharg, Professional Legal Education in Scotland, 20 Ga. St. U. L. Rev. 947 (2004). There is an additional, serious problem with any post law school apprenticeship or pupilage model—the lack of sufficient placements, which favors those with privilege and connections and thus disadvantages those already disadvantaged by the EBE. The “new” post-apartheid South African Community Service alternative is, in part, designed precisely to deal with the lack of pupilages that would be available to its increased number of non-white law graduates. See Thuli Mhlungu, Educating and Licensing Attorneys in South Africa, 20 Ga. St. U. L. Rev. 1005 (2004). [17]. The debt may be a combination of law school and undergraduate borrowing and consumer debt, so figures which show average law school debt at approximately $84,400 may be misleadingly low. Equal Justice Works et al., From Paper Chase to Money Chase: Law School Debt Diverts Road to Public Service, 2002, at 13. [18]. The Arizona model is far more attractive; its disadvantage is the very high cost per applicant: The budget for the pilot, which would employ 18 graduates in its first year, would cost more than $50,000 per graduate. See Sally Simpson & Toni Massaro, Students with “CLAS”: An Alternative to Traditional Bar Examinations, 20 Ga. St. U. L. Rev. 813 (2004). This necessarily makes the proposal impractical for any jurisdiction with substantial numbers of applicants, even assuming that, with repetition, the cost per applicant would substantially decrease. [19]. In fact, the preparation which virtually all graduates do for the EBE works perversely to undermine the critical thinking and analysis which students optimally learn in law school. See, e.g., Berry, supra note 5. Even more significant—and, I believe, pernicious—is the underlying assumption of the EBE and prep courses that accompany it that law is something that is “learned” and “known” (primarily through memorization) as opposed to fluid and indeterminate. The more I have thought about this, the more convinced I have become that an absolutely critical skill for any competent lawyer is the ability, when confronting a legal problem, to ascertain what you do not know and then to know how to find it. The MacCrate Report recognizes this in its discussion of the skill of Problem Solving. See MacCrate Report, supra note 6, at 142-43; Margaret Martin Barry et al., Clinical Education for This Millennium: The Third Wave, 7 Clinical L. Rev. 33, 35 (2000) (contrasting law school’s (and, by analogy, the EBE’s) focus on self-contained areas of law with a practitioner’s need to understand new and overlapping law). This is surely something that every practicing lawyer does, consciously or unconsciously, virtually every day and which I am sure they would agree is a necessary aspect of competence. [21]. For example, law school faculty began using multiple choice question (“MCQ”) exams much more extensively after, and in response to, the EBE’s adoption of the MBE MCQ exam. See Steven Sheppard, An Informal History of How Law Schools Evaluate Students with a Predictable Emphasis on Law School Final Exams, 65 U.M.K.C. L. Rev. 657, 684 (1997). [23]. See, e.g., Threat to Diversity, supra note 13, at 29; Linda F. Wightman, Predictive Validity of the LSAT: A National Summary of the 1990-1992 Correlation Studies, Law Sch. Admission Council Research Report No. 93-05, at 23 (Dec. 1993). [24]. An elegant and compelling study by William Kidder demonstrates this unfortunate, and certainly unintended, consequence of the LSAT. Matching applicants to Boalt Hall, by undergraduate institution, undergraduate major, and undergraduate grade point average (presumably the best measure of both ability and performance), Kidder found a nine point differential between majority and African-American LSAT takers with otherwise identical credentials. William Kidder, Does the LSAT Mirror or Magnify Racial and Ethnic Differences in Educational Attainment?: A Study of Equally Achieving “Elite” College Students, 89 Cal. L. Rev. 1055, 1074 (2001). [25]. This assumes that the preparation for the EBE does nothing to increase the lawyering skills graduates learned during the regular course of law school. See, e.g., When and Where, supra note 1, at 1710. The further assumption, implicit in the New Hampshire proposal, is that the enhancement offered adds sufficiently to the readiness of law school graduates to practice law to negate the need for a post-graduate licensing exam. [26]. I do not necessarily believe the top half of the class has necessarily achieved more, but I accept that it is the way in which most readers would understand first year grades. One of the most provocative issues raised by the conversation around bar alternatives is that of assessment. Do the tests we use actually or effectively test what it is we believe we have taught or what we hope (or claim that) students have learned? Judith Wegner’s extraordinarily thoughtful and comprehensive study of current law school assessment (testing) practices suggests strongly that they do not. Judith Wegner, Study on Legal Education for the Carnegie Foundation (forthcoming). [27]. The ABA prohibits full-time students from working more than 20 hours per week while classes are in session. See Council on Legal Education and Admissions to the Bar, American Bar Association, Standards for the Accreditation of Law Schools, Standard 304-f (2000). Students constrained by this requirement often increase their work hours during intercession and over vacation, which are other times when the enhancement proposed in the New Hampshire model might be offered. [28]. This is my experience with many CUNY students. Some are single parents that, even with an on-site child care facility, find that obligations to their children preclude them from many student activities and other extra-curricular opportunities. The same is true for those caring for elderly parents or other family members, and the same obligations often equally affect immigrant students who may serve as cultural and linguistic translators for non-family community members. [29]. In the case of financial status, this is exacerbated by the necessity of taking a bar prep course that can cost more than $3000. See, e.g., Out-of-the-Box, supra note 1, at 403-04. [30]. I do not understand this to be the case. One of the ways in which faculty opposition has thus far been avoided is by a promise from the Dean of New Hampshire’s only law school to the faculty that if the proposal were adopted that they would not have to teach more. Oral Statements of Sophie Sparrow, at the Georgia State University Law Review Symposium (Jan. 29, 2004). [31]. Presumably, these resources would include either the practicing bar or persons paid to provide the enhanced learning opportunities or both. [32]. Anyone who has attended such programs, or similar mandatory CLE offerings for lawyers who have been admitted longer, can attest to the stunning lack of attention, which is exemplified by attendees engaging in activities ranging from doing crossword puzzles on paper to doing email on lap-top computers, that pervades such occasions. For an excellent critique of bridge-the-gap programs, see Committee on Legal Education and Admissions to the Bar, Association of the Bar of the City of New York, Toward Closing the Gap: A Response to the NYSBA Committee on Legal Education’s Bridging the Gap Report (1997) (copy on file with Author). [34]. Am. Educ. Research Ass’n et al., Standards for Educational and Psychological Testing (1999) [hereinafter Joint Standards]. The Joint Standards figure prominently in EEOC guidelines and judicial decisions relating to job testing. See, e.g., 29 C.F.R. § 1607.5 (c) (2000); Merrick T. Rossein, Employment Discrimination Law and Litigation § 16:1 (2003). [35]. Another useful formulation comes from former Secretary of Education Arthur Coleman, who wrote: The term validity is generally understood to refer to the accuracy of conclusions from test results and to actions taken on the basis of these conclusions: in essence, test validation is an empirical evaluation of test measuring and use. It is both scientific and a rhetorical process, requiring both evidence and argument. Arthur L. Coleman, Excellence and Equity in Education: High Standards for High-Stakes Testing, 6 Va. J. Soc. Pol’y & L. 81, 104-05 (1998). [36]. These summaries of the three criteria are taken from Jennifer Mueller, Facing the Unhappy Day: Three Aspects of the High Stakes Testing Movement, II Kan. J.L. & Pub. Pol’y 201, 211 (2002) (describing the history of, and arguments in, the debates around high stakes testing). [39]. The “standardized client or patient” model, especially insofar as it permits videotaping and the ability to make multiple evaluations, is more likely to be—and to be perceived as—more reliable than the PSABE, which engages multiple evaluations in similar, but far from identical, real-time practice settings. [40]. We should not ignore the fact that there is subjectivity even in the MBE. Because it does not actually test “the law” in a particular jurisdiction, see, e.g., Nat’l Conference of Bar Examiners, Descriptions of the MBE, at http:://www.ncbex.org/tests.htm; J. Kirkland Grant, The Bar Examination: Anachronism or Gatekeeper to the Profession?, N.Y. St. B.J., May-June 1998, at 12, 14 (noting that a “correct” answer on the MBE may be contrary to settled New York law on the subject but rather the answer which is “least wrong”); Comm. on Legal Educ. & Admission to the Bar, Ass’n of the Bar of the City of New York, Report on Admission to the Bar in New York in the Twenty First Century—A Blueprint for Reform, 47 Rec. Ass’n B. City N.Y. 464, 483, (1992), at 483 and authorities cited therein, the choice made by the test authors is itself, to some degree, subjective. Additionally, although generally provided aids such as answer sheets and training, the graders of the state essay portion, who are themselves lawyers without extensive psychometric training, may also be guilty of some subjectivity. [41]. That is, we know for sure that the EBE has a disparate impact on non-majority takers. See, e.g., supra notes 13-14 and accompanying text. The open question is whether their ability or competence to practice law unsupervised is similar to that of majority takers. Anecdotal evidence suggests it is. See Out-of-the-Box, supra note 1, at 468-72. [42]. See Uniform Guidelines for Employee Selection Procedures, 29 C.F.R. § 1607.3 (2002) (requiring selection procedures (including tests) with disparate impact to be validated in accordance with the Guidelines, which in turn call for criteria related validity which requires “empirical data demonstrating that the selection procedure . . . significantly correlates with important elements of job performance” or content validation, which requires “data showing that the content of the selection procedure is representative of important aspects of performance on the job for which the candidates are to be evaluated” or construct validation, which is not applicable. 29 C.F.R. § 1607.5 (B) (2002)). [43]. There are several reasons, primarily statutory language, why courts have not found that the EBE is covered by Title VII. See, e.g., Out-of-the-Box, supra note 1, at Part IX. However, technical exclusion does not mean that the profession should not hold it to standards developed precisely to avoid non-intentional, but nonetheless impermissible, discrimination. [44]. Schulz is a lawyer who teaches at Boalt Hall; Zedeck is a nationally known industrial psychologist who is one of the country’s leading experts on constructing and validating employment tests for Title VII purposes. For preliminary information on their work, see Marjorie M. Schultz & Sheldon Zedeck, Identification and Development of Predictors for Successful Lawyering, SALT Equalizer, Nov. 2003, at 5, available at http://www.saltlaw.org/EQ-Nov2003.pdf (last visited Feb. 27, 2004). [45]. One of the challenges of their work on lawyer competence is that, unlike most employment tests (can a firefighter scale a wall or carry a hose of the sort working firefighters routinely use?), the work lawyers do is enormously varied, from counseling moderate income clients on personal matters and doing simple drafting, or structuring tax driven multi-national mergers and acquisitions, to litigating capital cases or complex multi-jurisdiction class actions. [46]. The EBE purports to test legal reasoning and analysis, written communication, and problem solving. In fact, at best it tests only a small portion of each of those skills (for example, a limited form of written communication, excluding all oral communication, specialized legal writing) and entirely omits—understandably for cost concerns—six or seven others that are equally critical to minimal competent practice. See Out-of-the-Box, supra note 1, at 377. [47]. I was a trial judge in New York from 1980 to 1992, when I was appointed to an intermediate appellate court, on which I served until I became Dean of CUNY School of Law in August, 1995. As such, in all the courts on which I sat, and in many years of practice before the bench, I saw incompetence or malpractice or both on an almost daily basis, all by lawyers who presumably had passed the EBE. I suspect the experience of my colleagues and many practicing lawyers was not dissimilar. [49]. The American Bar Association has taken the lead in studying the issue and proposing new regulation—or lack of regulation—in the area. American Bar Associaton, Report on Multijurisdictional Practice (2002). In addition to new rules for MJP, some have called for a “national” bar exam that would permit licensure in every state. See, e.g., Michael J. Thomas, The American Lawyer’s Next Hurdle: The State Based Bar Examination, 24 J. Legal Prof. 235, 251 (2000). [50]. See National Conference of Bar Examiners, Multistate Examination Use, at http://www.ncbex.org/tests.htm (last visited Feb. 27, 2004) [hereinafter Examination Use]. Additionally, because it is constantly monitored and its scoring is adjusted, it is highly “reliable”—that is, a score on one administration in any state should mean the same thing as the same score in any other administration in any other state. The question of validity, however, is still open. See supra notes 41, 49. The MEE is a day of long essay questions developed and sold by NCBE, which has now been adopted by 15 States. See Examination Use, supra. It differs from the MBE, to which all answers, unrelated to individual state law, are prescribed, in that states are offered the option of grading according to their own, as opposed to some generic “national” substantive law. See also Out-of-the-Box, supra note 1, at 366. [51]. Even where both states use the MBE and the MEE, there may be differences because each state may employ different “cut scores” for admission. The race to prove a state’s toughness or rigor in moves to increase cut scores relative to other states is a major issue in legal education and admission to the bar and shows no sign of abating. For discussion of the issues involved in the cut scores debate, see, e.g., Kidder, supra note 3; Deborah J. Merritt et al., Raising the Bar: A Social Science Critique of Recent Increases to Passing Scores on the Bar Exam 69 U. Cin. L. Rev. 929 (2001). [53]. I do not concede this point for two reasons. First, the PSABE and the Arizona CLABA proposal both evaluate skills in the context of local law; that is, knowledge of applicable law is critical to skills like interviewing, counseling, negotiating, fact gathering, and alternative dispute resolution, all of which require a sophisticated “theory of the case” grounded in substantive law. Second, the requirement of competence in legal research, which is not tested in the EBE but would be by practice-based alternatives like the PSABE, is directly related to a subset of the MacCrate skills—legal reasoning, knowing what you don’t know. See supra note 25. [54]. This relates to the concept of “transferability” of legal skills, whether analytic or practice-based, from one setting to another. Learning to navigate a regulatory system, like the IRS, should enable a successful student to work within a previously unknown regulatory area, like environmental law, just as lawyerng skills learned in a domestic violence clinic should transfer, or enable, the successful student to conduct an interview and counsel in an entirely different substantive law setting. [55]. For example, I am admitted in New York, where I have always practiced (or judged). My early career was as a constitutional litigator (something I learned in law school and which was presumably tested on the bar exam) but after several years, I developed a practice in communications law, which was neither taught at Columbia when I attended nor tested in the New York, or any other, bar exam. My ability to master this new field, and to be reasonably successful in it, demonstrates both transferability and the life-long self-learning that is integral to the profession. [56]. A more obvious, and likely, alternative is that PSABE admission, like diploma privilege admission Wisconsin, see Beverly Moran, The Wisconsin Diploma Privilege: Try It, You’ll Like It, 2000 Wis. L. Rev. 645, would be treated the same as EBE admission: some states would permit reciprocity, others would require the applicant for admission to practice in those states to take “their” bar exam. My suggestion here, for an abbreviated test of “really important” state-specific substantive and procedural law, might profitably be advanced for EBE admittees as well. Discussion of how a written test might be improved does not signal any departure from my general position that the PSABE I have proposed would be sufficient without any additional written instrument. In this respect, I differ from the NYSBA/ABCNY Joint Proposal, discussed supra at note 1. [57]. Claude Steele has developed a hypothesis called “stereotype threat” to explain the performance gap and the resulting disparate impact of high-stakes timed paper and pencil tests on non-majority takers. See, e.g., Claude M. Steele, A Threat in the Air: How Stereotypes Shape Intellectual Identity and Performance, 52 Am. Psychologist 613, 616-18 (1997) (discussing the way in which stereotype threat dramatically depresses the standardized test performance of African Americans); Claude M. Steele & Joshua Aronson, Stereotype Threat and the Test Performance of Academically Successful African Americans, in The Black-White Test Score Gap 401, 402 (Christopher Jencks & Meredith Philips eds., 1998) (arguing that African American students “know that any faltering could cause them to be seen through the lens of a negative racial stereotype” which may then impair their test performance). [58]. They postulate that when stereotype threat arises for any stereotyped group, members of that group become less efficient, become less able to tolerate or work through frustration, and thus “spend more time doing fewer items less accurately.” Steele & Aronson, supra note 57, at 423. [59]. The best discussion of “speededness” in the EBE is contained in the study of the New York bar exam commissioned by the New York Court of Appeals. See Millman, Evaluation, supra note 10; see also Out-of-the-Box, supra note 1, at 368. [60]. Millman, Evaluation, supra note 10, at 9-8 & n.11 (citing Stephen Klein, The Effect of Time Limits, Item Sequence and Question Format on Applicant Performance on the California Bar Examination (1981) (Report prepared for the Committee of Bar Examiners of the State of California and the National Conference of Bar Examiners)); see also Out-of-the-Box, supra note 1, at n.565 (citing Pamela Karlen, Presentation at Panel Discussion at the AALS Annual Meeting, Learning Theory and Student Evaluation: Throw Out Those Blue Books? (Jan. 4, 2003) (reporting, anecdotally, substantial increase in grades of non-majority takers when tests were not timed)). [61]. See Out-of-the-Box, supra note 1, at 377 (arguing that we should encourage, rather than discourage, lawyers to take the time needed to accomplish a professional task). [62]. The lawyer panels employed in psychometrician Jason Millman’s study concluded that “speed in reading fact patterns, selecting answers, and writing essay responses [is] not the kind of speed necessary to be a competent lawyer.” Millman, Evaluation, supra note 10, at 8-9. Additionally, as another section of the study notes, “the authors were unaware of any formal documentation that speededness is an essential component of a minimally competent attorney.” Id. at 5-20. [63]. For example, Thuli Mhlungu noted concern about the quality of instruction received by apprentice attorneys in the current system in South Africa. See Mhlungu, supra note 16. The problems she describes in the earlier, pre-democracy, apartheid era, suggest that the shortage of post-graduate placements faced by non-majority applicants might well be duplicated here where the bar is also, though not so dramatically, predominantly white. See id. [64]. Dr. Stern mentioned the figure $1000 as now being charged to every applicant. Whether this is the actual cost is not clear, and there might be some economy of scale as the applicant base increased. If a standardized client examination was the sole ground for admission, perhaps a cost in this range would be acceptable because applicants would no longer have to take expensive prep courses (on the other hand, prep courses for standardized client testing might become perceived as a necessary prerequisite). It is, however, the sheer amount of time necessary to conduct the kind of testing now done for medical licensure that makes adoption of this model impractical for over 40,000 law graduates a year. [65]. The New Hampshire proposal is still in such an early stage that there are no projections of its cost. The PSABE would certainly require substantial investment in developing, administering, and evaluating a pilot, but I believe that start-up funding could be made available from foundations or other sources committed to increasing diversity and access to justice. See Out-of-the-Box, supra note 1 at 489-90. Once established, however, I project that, because it relies primarily on existing resources, the PSABE would have costs roughly similar to the EBE. If I am wrong, and the costs were prohibitive, the PSABE would not be viable. If they were only modestly higher, applicants could be charged a differential fee which would be offset by eliminating the need for costly bar prep courses. [66]. For a preliminary discussion of the strategies necessary for a PSABE, see id., Part XIV. Possible economic viability should not obscure the problems I have suggested about the New Hampshire proposal’s political disparate impact on non-majority law students. [67]. For the PSABE, it is important that the alternative be, and be perceived, as an alternative to, and not a replacement of, the EBE. An alternative does not devalue the dedicated work that bar examiners have done and continue to do with the EBE and should not be as threatening as a proposal that would entirely replace what they do. Furthermore, a choice of ways to demonstrate readiness for admission might itself ameliorate the disparate impact of the EBE. See Out-of-the-Box, supra note 1, at 476-77. Legal education provides an excellent analogy for alternative means of “admission,” suggested to me by Diane Yu. When I went to law school, the only basis for election to the law review was first year grades. This arguably “objective,” but hardly validated, means was supplemented by the ability to “write on,” which was inspired in part by a desire to increase diversity and is now used widely by the majority of law schools. The quality of law reviews hasn’t suffered, nor does anyone much care how membership was obtained. The same, I suggest, would be true for an alternative bar exam like the PSABE. [68]. This is an idea suggested by none other than Robert MacCrate, who chaired the commission that provided the MacCrate Report. Robert MacCrate, Yesterday, Today and Tomorrow: Building the Continuum of Legal Education and Professional Development, 10 Clinical L. Rev., No. 2, Spring 2004, available at http://ssrn.com/author=347913 (last visited Feb. 28, 2004). This article was originally commissioned by the NCBE for The Bar Examiner, but it was rejected after submission. [69]. Three New England states (Maine, New Hampshire, and Vermont) that have been considering a “compact” agreement for admission to the bar have expressed dissatisfaction with the EBE, but only New Hampshire has progressed to a proposal for a concrete alternative. Personal Communication with Colleen Khoury, Dean, University of Maine Law School, in Atlanta, Ga. (Jan. 4, 2004).
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