Last Tuesday, the Court — note that they were sitting as the SJC, not the Law Court — ruled on the Husson College School of Law application:
http://www.courts.state.me.us/court_info/opinions/2008%20documents/SJC-242HussonOrder.pdf
The decision was unanimous (among the five justices hearing the matter – Justices Alexander and Mead recused themselves).
Husson asked the Court to exercise its orginal jurisdiction to grant future graduates of its prospective law school eligibility to take the bar exam. This would be prior to any ABA accreditation, and Husson has no plan to try to meet all the ABA requirements for such accreditation. The Court rejected the application, noting, among other things, the unprecedented nature of seeking such approval prior to existence.
The Maine Board of Bar Examiners, among other groups (including the Maine State Bar Association) opposed the application. As an ex-Chair of the Board, and a member of that Board for seven years, I can attest to the limits of just a bar exam to determine competency to practice law. In Maine, moreover, there is at least currently no limit to how many times you can take the exam, and some people have finally passed only after failing it many, many times.
There are two points I find of broader interest.
First, the Court made clear (footnote 3 – the most interesting parts of decisions are often in the footnotes) that it was the arbitrer of this subject matter; statutes about who can sit for the bar are only advisory. This confirms earlier language in In re Application of Feingold, 296 A.2d 492, 496 (Me. 1972). The Court’s position makes a lot of sense for multiple reasons, and I’m glad they’ve made this point clear.
Second, coincidentally, the cover story of the June 2 NLJ is "A deluge of law schools," noting that as many as ten law schools (including Husson) are in the pipeline, and suggesting that this is more than the relevant markets can bear. The article cites statistics suggesting that the graduates of new schools are likely to have a tough time finding decent jobs.
I know that there were always suspicions among some law students that the Board tied the passage rate to what it perceived the market could bear (i.e. if it thought there were too many lawyers in Maine, it would pass fewer applicants). This, like many urban legends, was, of course, untrue. Aside from this not being the Board’s job or desire, the way that the test is put together and graded would make any such attempt impossible. Among other things, the Maine essay question grades are calibrated to the multi-state part of the test, not vice versa. The multi-state portion of the exam is not prepared or graded by the Maine board, but rather the national conference of bar examiners in Madison WI. The NCBE has hordes of zingy statistician Ph.ds who figure out how to calibrate so that the test and the scoring remains consistent over time. In other words, even if there were a nepharious local plot to flunk more students, it wouldn’t work, because of the calibration to the mbe scoring.
