TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Tuesday, December 20, 2016

Anderson:  Deans, Denial, And The California Bar Exam

California (2016)Following up on yesterday's TaxProf Blog op-ed by Deans Boise and Morriss, The Shameful Truth Is That Many Law Schools Have Admitted Students With Low LSAT Scores To Prop Up Tuition Revenue And Now Seek To Avoid Accountability For The Ensuing Poor Bar Passage Results:  Robert Anderson (Pepperdine), Deans, Denial, and the California Bar Exam:

On Thursday a number of California law deans wrote pieces in the Daily Journal criticizing the State Bar of California over the abysmally low bar passage rates some of their schools achieved on the July 2016 exam. Many of the deans' perspectives displayed a profound lack of understanding of how the bar exam works and even ventured into conspiracy theories, leading them to place the blame where it doesn't belong. Sadly, not of them pointed the finger where the blame actually belongs, which is with the deans and their faculties themselves. This is an illustration of the psychological defense mechanism called denial.

The reason that the 2016 pass rate declined so much is that deans, faculties, and to some extent parent universities are not willing to downsize faculty and class size adequately to meet the current lower demand for the JD degree, as I wrote previously. The deans didn't mention a word about this in their blame shifting exercise. I could spend days knocking down all the incorrect information disseminated by these deans, so I had to pick a few of the most egregiously uninformed comments to discuss. ...

Essentially, the deans seem to be arguing that the State Bar should have proactively and unilaterally reduced the required passing score that has been in place since 1987 because the deans started admitting less qualified students in 2011. Isn't it instead the deans' responsibility to enroll a class that can pass the bar in the state where their law schools are located? ...

I identify with many of the concerns and agree with many of the reforms suggested by the deans, but for reasons unrelated to this year's pass rate.

But let's be honest here. The deans are passing the buck for the failures they and their faculties have created. Trying to shift the blame from the deans' failures to make hard decisions about tenured faculty toward the State Bar isn't productive. The reason bar pass rates have declined in recent years (in most states) is that law schools are filling their classes with students with lower and lower "predictors" (LSAT and GPA), and lower-ranked schools are losing their better students in the transfer market. Contrary to what some of the deans assert, even declines of a couple points in the LSAT median and a couple tenths of a point on GPA medians have significant effects on the quality of the incoming class and bar pass rates. The schools keep packing in less qualified students because they have too many tenured faculty salaries to pay relative to current applicant demand. This is especially a problem in the Baby Boomer demographic bracket because of its large size.

The reason California has a low pass rate is because the required passing score is so high, and perhaps we should lower the passing score. But the reason why passing rates have declined is because of the actions taken by deans and faculties in law schools, not because of any change to the passing score or any other any action by the State Bar. The decision to allow admission standards to slump over the last several years is what produced this predictable change in bar pass rates. The solution is simple if the resolve is there: decrease law school expenses through accelerated faculty attrition. Once that's done, I would welcome a conversation about bringing the California bar exam's difficulty in line with that of other states.

http://taxprof.typepad.com/taxprof_blog/2016/12/andersondeans-denial-and-the-california-bar-exam.html

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Comments

This is not a California phenomena--deans at all but the top elite law schools have argued that poor bar exam results are caused by someone or something outside of their control. They have claimed that their students are the best ever even as they have lowered their admission standards. Nothing will change until administrators, and especially regulators, take a serious look at the failure of law schools to respond to market forces that demand less while law schools supply more. This is a moral hazard that requires intervention.

Posted by: gary minda | Dec 20, 2016 9:08:46 AM

I found Erwin Chemerinsky's comments attacking the test to be particularly ironic. He's been making money for years off of the test teaching for BarBri (which has run a monopoly on bar prep with the cooperation of several law schools, and has been engaged in antitrust litigation for years).

Posted by: Anon | Dec 20, 2016 9:49:28 AM

Here are my gripes with the approach taken:
A reduction in the number of tenured faculty would allow central university administrators to turn the law school into a juicy profit center vis a vis allowing the law school to substantially reduce entering class size. Are you willing to bet that they will not yield not to temptation? Your thesis cannot assume this away. Pair the two, and I will nod appreciatively.
Student’s with stellar credentials (HLS graduates) fail the bar every year while those with less-than-stellar credentials (some Tier 2 graduates) manage to pass. Who deserves to be admitted? The answer will come not from a rigorous assessment of the candidate but a rigorous and thorough assessment of the strength of the school’s overall program. The vast majority of HLS graduates can learn what they need to learn on their own, notwithstanding the fact they even they deserve considerably more than thinly-veiled rambling in Torts and CivPro. But only a proven strong program should admit weaker students. If the school can’t deliver what THAT student needs, then they shouldn’t take the student’s money. Thus, the answer with respect to weak students is not automatic rejection, but rigorous and realistic self-assessment. Now, maybe a lot of schools are skipping that step and admitting the student anyway, but the proper response is to amp up the program to be responsive to the needs of the students actually admitted. I see UC-Hastings as the classic example of a program in need of a swift kick. They have to teach the solid students they’ve actually admitted instead of teaching the class they would like to think they’ve admitted.

Posted by: Lux | Dec 20, 2016 11:51:16 AM

What do bar passage rates have to do with demand for law graduates?

There's plenty of demand for law graduates in compliance jobs, and they don't even need to have passed a bar exam.

And states can make the bar as easy or as hard to pass as they want, without reference to market forces.

Posted by: Um | Dec 20, 2016 4:08:31 PM

"What do bar passage rates have to do with demand for law graduates? There's plenty of demand for law graduates in compliance jobs"

Except for all of the compliance job listings that explicitly say "No JDs will be considered," of course.

Posted by: Unemployed Northeastern | Dec 20, 2016 7:29:58 PM