In Let the Games Begin: Jurisdiction-Shopping for the Shopaholics (Good Luck With That) Mark Albanese defends the National Conference of Bar Examiners’ grading practices as essential to assuring reliability given the variability in grading between UBE jurisdictions. In addressing the claim that it is possible to achieve different outcomes on the same test by the same candidate if taken in different UBE jurisdictions, he describes how NCBE monitors jurisdiction variation to ensure grading consistency. Those of us concerned, however, with the possibility that the jurisdiction in which a candidate takes the Uniform Bar Examination (UBE) may make the difference between passing and failing will not find Mark Albanese’s explanations satisfactory. Contradictory and confusing perhaps, but not responsive. Rather than answer the question of whether it is possible for the same person to be found “competent” to practice law in one UBE jurisdiction and “incompetent” in another when it is the same person with the same skill level writing the same exam, NCBE deflects and disguises — and despite a lot of words and numbers — avoids it completely.
This reply identifies the significant flaws in Dr. Albanese’s defense of NCBE’s scoring practices. These practices include standardizing the written scores to the subset of MBE scores that come only from that jurisdiction and standardizing written scores to multiple choice scores. The way that the written raw scores are standardized is itself a problem for two reasons and will be addressed. In so doing, the underlying question becomes clear: why would NCBE and Dr. Albanese defend admittedly defective practices — practices that are antithetical to the bar exam’s objective of determining an individual’s minimum competency for the practice of law?
Darrow Kleinhaus, Suzanne, "A Reply to the National Conference of Bar Examiners: More Talk, No Answers, so Keep on Shopping" (2017). Scholarly Works. 632.