Bar exams have come a long way
Since 1958 that is — when few studied but everyone passed, according to N.D. Justice Gerald VandeWalle, UND Law ’58
Editor’s note: This article originally appeared in the print edition of The Bar Examiner magazine, summer/fall 2021 (Vol. 90, Nos. 2-3), pp. 27-30. It is being reprinted here by permission.
The Bar Examiner, published quarterly by the National Conference of Bar Examiners, provides comprehensive, authoritative information on current issues in bar admissions, legal education and testing.
In this issue’s “Seven Questions” column, The Bar Examiner brings you an interview with Justice Gerald W. VandeWalle of the North Dakota Supreme Court.
Justice VandeWalle has served on the Supreme Court since 1978. He was elected chief justice in January 1993 and served in that position until December 2019. He continues to serve as a justice on the court.
We asked him about his experience taking the bar exam in 1958, his thoughts on the Uniform Bar Examination, his views on a few different aspects of bar admissions, and his reflections on the NCBE Annual Bar Admissions Conferences he has attended over the years, particularly on the judicial roundtables that are held at each conference.
The interview was conducted on July 30, 2021, by Peg Corneille, former director of the Minnesota Board of Law Examiners and chair of NCBE’s Communications and Outreach Committee; Dan Saar, director of admissions for the Iowa Board of Law Examiners and member of NCBE’s Communications and Outreach Committee; and Claire Guback, NCBE editorial director and editor of the Bar Examiner.
First, a bit of background about Justice VandeWalle. We were curious about where he grew up, and whether he always wanted to be a lawyer and a judge.
I was born and raised on a dairy farm in Noonan, N.D., which is 6 miles from Canada and about 35 miles from Montana. Not the end of the world, but you can see it from there.
When I was growing up, I didn’t know what a lawyer even was. There was a lawyer in Crosby, which is a bigger town about 14 miles from Noonan, but he also raised potatoes, and I think he was more known for his potatoes than he was for lawyering.
My mother was a state debate champion at Crosby High School, and her debate coach was the wife of a lawyer in town, so I had some awareness of lawyers, but I had no idea about becoming one myself until I got to the University of North Dakota. I was an accounting major, and I took an introductory course on business law, and that was it: from then on, I knew what I wanted to study. I had no concept of being a judge either, until I applied for the position in 1978 after an acquaintance encouraged me to apply.
1. You took the bar exam in 1958. What was your experience taking the bar exam? Do you know how the North Dakota Bar Exam was developed and graded at the time you took it? How has that process evolved over the years that you have served on the North Dakota Supreme Court?
I viewed the bar exam as a rite of passage. No one had failed the bar exam for several years before I took it. Most of the people taking it were UND graduates. I didn’t even study for it. Fortunately, when I took the bar exam, they labeled the subjects at the top; otherwise I wouldn’t have known what I was writing on.
We wrote six subjects a day for three days in the House chamber (which, by the way, was not air-conditioned at that time; my biggest fear was that my bluebook was going to smear). The bar exam ran Tuesday, Wednesday and Thursday, and we were admitted Friday morning at 10 o’clock.
About how the bar exam was graded: when I later got to the Court, I was told that they read the first few answers, and if you answered well, they just stopped reading the rest. They only went on if they weren’t satisfied with your answers on the first few questions. I think being admitted to the bar at that time pretty much depended on your marks in law school.
One thing happened while I was taking the exam that really irritated me. There were only about 30 people taking the exam at that stage. The bar examiners wrote the questions and graded the answers themselves, and they also monitored the exam, and they’d correct papers from the prior day’s exam while monitoring the current day’s sessions.
In between two of the sessions, one of the bar examiners came in early, sat on the bench with the one who was currently monitoring the exam, pointed to something on the paper he’d been grading from the previous day’s exam, and they both laughed and laughed. We didn’t know whose paper it was, but it could have been any of ours.
In any case, we all passed the exam that year, as I had expected. As I mentioned, we were all admitted on Friday morning. A few years later, a couple of people didn’t pass, and the way they found out that they hadn’t passed was that the clerk of the court just called them out of line. It was not pleasant.
The bar exam has evolved so far since I took it that it’s hard to even measure the distance. The Multistate Bar Exam and the Multistate Essay Exam alone are miles away from the bar exam I took and represent a much better screening process.
2. Let’s talk about the Uniform Bar Examination. North Dakota can be seen as a trailblazer, being the second jurisdiction to adopt the UBE, with its first UBE administration 10 years ago, in February 2011. What motivated your court and board to make the change so early on, and what benefits were envisioned from bringing the UBE to North Dakota?
Were there any issues in implementing the UBE once the court decided to adopt it, and did NCBE play a role in North Dakota’s adoption of the UBE? Do you recall what conversations other state Supreme Courts or bar examiners were having about the UBE at the time?
Finally, the UBE has been adopted in 41 jurisdictions as of 2021; did you think 10 years ago that it was something that would catch on as much as it has?
The transition to the UBE was a snap because we were already using all of NCBE’s tests. By that time, our board had been smart enough to go from their own essay questions to the MEE, so they were using every product that NCBE offered, which made it an easy transition. Why not go to the UBE?
For those candidates who wanted to take the UBE in another state and transfer to North Dakota, or for those taking the UBE in North Dakota who wanted to transfer to another UBE state, it would be simple. It was such a natural move.
There were very few problems implementing the UBE, because we were just giving the tests as usual. As for NCBE’s role, NCBE was our go-to; they are the ones we relied upon. They facilitated the UBE, as well as organized meetings with states that had adopted or were interested in adopting the UBE, meetings that I remember very well. I remember thinking, why would you not want to go with the UBE?
As for the number of UBE jurisdictions, I’m a little surprised at the number, and I also didn’t ever expect the big states to come on board. Occasionally, justices from other states would ask me about the UBE, particularly at the justices’ roundtables at NCBE’s Annual Bar Admissions Conferences. I told them, if you’re already giving all of NCBE’s tests, then you won’t have any problem. Some were administering their own local essay questions, and I reminded them that they could still continue to do that.
3. All jurisdictions define the educational standards a prospective lawyer must show before qualifying for admission, but those standards vary among jurisdictions — some jurisdictions require an ABA-accredited J.D., while others permit law office study or state accreditation. Do you think that these variations in educational standards are likely to change at any point in the future? Will jurisdictions move toward more consistency in educational standards?
I’m hoping that the ABA will remain the most common standard. I’m not convinced it will, but I’m hoping it will. Our small Board of Law Examiners would have great difficulty in determining the quality of education at an unaccredited law school, so we are grateful for the ABA’s assurance in this regard. Maybe larger states that have a much bigger pool of employees working for them can achieve that, but we can’t.
We have three bar examiners, and the secretary of our board is also the clerk of our court, so she’s very busy.
When I got out of law school in 1958, one could acquire a bachelor’s degree and a law degree from UND in six years if you started taking law school credits when you were a junior. I didn’t decide to go to law school until I was a junior, so it was already too late for me to pursue that option. Now that’s changed, and it is a seven-year process. I know that’s a long time for some people; nevertheless, I still think it’s valuable.
Although the bar passage rate is a significant factor in law school accreditation, accredited law schools must do more than teach to pass the bar exam. The well-rounded education provided by law schools is one of the reasons North Dakota abandoned the avenue of “reading the law” under a lawyer or a judge. Reading the law has some advantages over classroom study, but it does not overcome the educational advantages offered by a good accredited law school.
The ABA standards really are for the benefit of the law school, and to provide reassurance that their graduates are indeed qualified to sit for the bar exam. If we didn’t have that reassurance, I don’t know where we’d be. I think the quality of the law school would go down.
I’ve sat on several ABA law school site inspection teams for ABA accreditation, and I’ve done enough site inspections to know that some of the schools are unhappy about all the prodding that the inspection process entails, but I think the accreditation process works well.
4. Do you think jurisdictions are likely to continue to license attorneys, or do you think attorney licensure will at some time move toward national bar admission?
This is certainly a question that’s alive and well; I was recently discussing this very question with a staff member of the National Center for State Courts and another chief justice. The British don’t understand our federalism; they think that the ABA or Congress governs. I don’t think this is the case, but I must admit that I’m afraid someday someone will say that state-by-state licensure of lawyers violates the Constitution, and Congress will set up their own licensing provision. The states have to be on guard for that.
My preference is that the states continue to dictate who is allowed to practice law in their jurisdictions. However, I do understand that if the states start doing this arbitrarily — for instance, if they were to set a standard that only the very few elite can meet — that would be problematic. Or if they admitted anybody, that would also be problematic.
I would not be as concerned about this issue except for what’s currently happening, with some states starting to say they don’t want to follow the traditional standards for admission to the bar. And if the states all become too disparate, that’s what would cause Congress to say they need to take control. A little separation in admission standards is fine, but if you get too much, that would be the catalyst for Congress to step in and say they need to take over. If states become too lax in their standards for admitting lawyers, that would be problematic. I’m concerned about this, and I can see this as a potential problem.
5. What do you see as the greatest future challenge for bar admissions? What should state Supreme Courts and boards of law examiners do to prepare for that challenge?
I think a big issue now is allowing people to perform certain legal activities without being licensed. Lawyers gave up performing real estate transactions a long time ago, and individuals can now draw up their own paperwork for selling their home, for instance. These individuals are not licensed, and no one is saying this constitutes the unauthorized practice of law, yet at one time it would have been considered so.
Court navigators pose a similar challenge. And in North Dakota we’ve allowed nonlawyers to come in with domestic violence victims to appear in court. You might say they’re not giving legal advice, but to a certain extent they are. Those exceptions need to be watched very closely.
6. Who do you think makes a good bar examiner? What type of people should be involved in this work, and what do you think are the proper characteristics for people who make decisions about who should be admitted to the bar?
They should have the interest of lawyers at heart, and also public protection. And they should have both concerns equally, hand in hand, not just one or the other. Also, they should really be willing to work, as it’s not an honorary job.
They don’t all have to be lawyers either, although North Dakota’s bar examiners are lawyers. When I took the bar exam in 1958, the bar examiners wrote the exam, but that, by and large, isn’t the case anymore. Of course, some states have their own special state questions. But I certainly don’t think all bar examiners need to be lawyers. I would want the majority to be lawyers, but I wouldn’t object to there being psychologists, psychiatrists or teachers on a board of bar examiners.
7. As Chief Justice and now Associate Justice of the North Dakota Supreme Court, and liaison to the North Dakota Bar Board, you have attended many of NCBE’s Annual Bar Admissions Conferences over the decades. How have the conferences benefited you? Do you think the justices’ roundtables that occur at each conference have been of value?
The justices’ roundtable is a great idea. The first time the roundtable was held, there were just a handful of justices, and now there are often somewhere around 40 attending, which is wonderful. What an improvement that is. The justices really do get to discuss issues among themselves. Many justices come to the bench viewing bar admissions as a mostly ceremonial function, and they don’t understand what goes on behind it. In that aspect, NCBE has done a wonderful job of educating justices.
Face-to-face interaction is still the best way to transfer information, which is what makes the roundtables so valuable. I often came back with ideas from the roundtable that I shared with the other North Dakota justices.
Final thoughts on NCBE’s contributions to bar admissions:
North Dakota certainly would not be where it is without NCBE. Developing the MBE, and later the MEE and the Multistate Performance Test, was a monumental task. NCBE made us a better group because of that.
Although the bar examiners did the best they could at the time, my experience in 1958 was that the bar exam was a farce. That’s NCBE’s biggest contribution — providing expertise in developing the exam itself, as we know it today.
The bar exam is a much more professional process than it was before. And, of course, NCBE plays an important role as a sounding board for all of the various issues that arise around the country.
As NCBE undertakes the task of developing the bar exam of the future, the devil will be in the details, and there will no doubt be some hurdles to cross in implementing the new exam. But ultimately, I agree with the goals as NCBE has articulated them. In this day and age when technology is changing so rapidly, I believe that the delivery method of the new exam will be an especially important area of focus.
I congratulate NCBE on its 90th anniversary and its dedicated service to jurisdiction bar admission authorities and courts as we continue the important work of admitting new lawyers to the profession.