Legal Fixation

That's Tough, That's Tricky, That's...

...the Multistate! Oh, Feinberg, how you disappoint me. PMBR, one of the two popular bar exam review courses (BarBri being the other) has been ordered to pay almost $12 million for infringing the copyright in the MBE questions authored by the National Conference of Bar Examiners (read the decision). Apparently PMBR employees would attend various bar exams and either memorize or somehow leave with the exam questions, which would then be used -- sometimes in slightly re-written form ("x10 widgets" becomes "x-10 gidgets") -- in their prep course materials. It didn't help matters that PMBR's ads featured students exclaiming "I recognized so many of the [real exam's] questions from PMBR," though I have to say I never took that literally when I saw those posters all over my school. I assumed the happy student was saying he recognized the type of question, not the actual language. If PMBR made that argument, the judge didn't buy it. I also assumed that PMBR based their practice exams on questions the NCBE released -- that is, old questions that would no longer appear on the MBE. But as it turns out, those released questions aren't just let out into the wild, they're made available for license or purchase, and PMBR neither licensed nor purchased them (admittedly, I would have known this had I read PMBR's promotional materials closely, in which they make clear they don't use released questions).

The judge held "By exposing its students to questions likely to appear on the MBE, PMBR undermined the integrity of the bar examination, possibly causing the admission of unqualified applicants." As this blogger notes, this might be overstating things just a bit. The whole point of bar exam prep is to expose test-takers to questions likely to appear on the exam. But the intent is not that the student will recognize the question and immediately know that, for example, answer choice C is correct. Frankly, the chances of that happening are incredibly slim, as no student in his right mind would trust that he's memorized the question properly or that the NCBE hasn't made some small but significant change to the fact pattern or the answer choices. The intent is that students recognize the concept being tested more quickly than they would otherwise, which in turn gives them a bit more time to nail down the correct answer choice.

Nevertheless, it is hard to fault the judge's conclusion given the evidence of access and copying. For PMBR, this means they may need to put some of the millions they make every year toward writing original questions. Heck, they'll be saving on exam fees.

Of particular interest to me is that the July 2005 MBE, the one I took, had to be completely rewritten because it had been compromised by PMBR. This explains quite a bit. When I finished the MBE portion of the exam, I was struck -- as were my classmates -- by how much harder it was than any of the practice exams we took, either through PMBR or BarBri. Many of the questions were, frankly, bizarre. I wonder if perhaps the NCBE cobbled together the test from questions they had previously rejected or were still being tweaked. And I wonder further how, if at all, this was taken into account in the grading of the exam.

Between this and the BarBri class action, it would appear the bar prep landscape is due for some changes in the near future. Is MicroMash ready to pounce?

posted by Matthew Saunders @ 8:51 AM