National Conference of Bar Examiners v. Multistate Legal Studies, Inc.

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mathematical concepts, such as square roots and fractions. Seealso Ass’n of Am. Med. Colls. v. Mikaelian, 471 F. Supp. 144, 150(E.D. Pa. 1983). Teaching the legal principles tested on the MBEis permissible. Doing so using the same fact patterns, prompts,and answer-choice combinations found in MBE questions is not.MBE questions based on published cases or newspaperarticles are protectable to the extent that they include materialalterations in the facts, new legal issues, or original answerchoices. For example, question 1033_CRM, which appeared on theFebruary 2001 MBE, drew on a 1993 New York Times articlereporting that a court clerk had been charged with murder aftersmuggling a firearm into the courthouse for her boyfriend, whoused it to kill a police officer. See Joseph F. Sullivan, ClerkAccused of Smuggling Gun in Courthouse Killing, N.Y. Times, June5, 1993, at A11. Inspired by this article, the MBE draftersdeveloped a question designed to test the defenses of duress,necessity, and insufficient mens rea. In so doing, they addedtwo key facts not appearing in the article: that the gunman toldthe clerk that he wanted her to smuggle the gun so that hisprobation officer would not discover it, and that he threatenedto kidnap her children if she refused to cooperate. Thequestion’s focus on the clerk’s best defense and the fourspecific answer choices also reflect creative expression. A PMBE14
question from 2003/2004 copied the additional facts, prompt, andthree of the same answer choices, all of which are protected byplaintiff’s copyright.In other instances, the creative expression is embodiedin the answer choices, rather than in the fact patterns alone.The fact pattern in question 1999A_EVD, for example, is sogeneral that it would not, on its own, qualify for copyrightprotection:In a prosecution for murder, the judge has discretion toDENY which of the following requests made by theprosecution?The extremely open ended nature of the question, however,increases the degree of creativity involved in drafting the onecorrect and three incorrect answer choices. Question #19 fromthe 2003/2004 PMBE would not violate plaintiff’s copyright simplybecause the fact pattern is materially similar, however it alsouses four substantively identical answer choices, and thiswholesale reproduction of a copyrighted question is notpermitted.I find defendants’ claims of independent creation to bewholly incredible. The “source binders” submitted are simplypost hoc efforts to identify sources that could, theoretically,have been used. Even so, many of the “sources” simply providesupport for the legal principle being tested, lacking anything15
Page 1 and 2: IN THE UNITED STATES DISTRICT COURT
Page 3 and 4: Conference of Bar Examiners v. Sacc
Page 5 and 6: third reported that he was “alrea
Page 7 and 8: cryptic, they clearly relate to top
Page 9 and 10: The substantial similarity between
Page 11 and 12: Answer key: BThis question tests th
Page 13: (A) Yes, because Bilko should have
Page 17 and 18: and thus may also have been challen
Page 19 and 20: 2001). Here, I find that there coul
Page 21 and 22: in PMBR simply to get extra practic
Page 23 and 24: integrity of the bar examination, p
Page 25: purpose other than to obtain bar ad

National Conference of Bar Examiners v. Multistate Legal Studies, Inc.

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