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

Saturday, January 21, 2017

Deans Boise & Morriss:  Why We Still Support The ABA's Proposed 75% Bar Passage Requirement

Boise Morriss PhotoTaxProf Blog op-ed:  Why We Still Support The ABA's Proposed 75% Bar Passage Requirement, by Craig M. Boise (Dean, Syracuse) & Andrew P. Morriss (Dean, Texas A&M):

Indiana Law Dean Austen Parrish recently responded to our TaxProf Blog response to his column on the ABA’s proposed 75% bar passage rule. While we don’t want to suggest deans spend their days writing op-eds, we do think a bit of further comment is merited.

First, we’re pleased to find some areas of agreement with Dean Parrish. We all agree — and we suspect virtually all legal educators agree — that, at a minimum, the ABA should be working to remove accreditation from law schools that are “predatory.” But shouldn’t our accreditor do more? The number of schools that are truly predatory is thankfully small, yet there are still a significant number of schools whose graduates consistently fail to pass the bar at a reasonable rate.

Second, we agree with Dean Parrish that the recent California bar results are troubling. As he suggests, it is implausible that the precipitous drop in UC-Hastings’ bar passage rate is due to anything the Hastings faculty did. After all, a number of schools in California had the same experience. And no one, including us, has suggested Hastings is “predatory.” But one anecdote about one administration of one bar exam by one state is not a reasonable basis on which a national accrediting agency should make policy. We trust that the ABA in its role as accreditor will be able to take into account anomalous results like the recent California numbers if it becomes necessary to do so.

Third, we also agree with Dean Parrish that the legal profession has much work to do to be as diverse and inclusive as it should be. There has been dismayingly little progress on this front for decades. Law schools that have achieved significant diversity in their student bodies, should be commended for working to address this issue. However, to enter the legal profession, a law graduate must pass a bar exam. If a law school cannot deliver reasonable bar passage rates it is not helping diversify the profession. Rather, it is saddling minority students with crippling student debt and providing them no means of servicing their student loans.

Despite our agreement on some key issues, there are other areas where we part company with Dean Parrish. He argues “the new proposed bar standard has too many potential negative collateral consequences on schools with strong academic programs.” We don’t think that’s true. A strong academic program ought to yield reasonable bar performance. When a school falls short, as schools do from time to time, it must take more effective steps to improve its graduates’ bar performance. Contrary to Dean Parrish’s assertion, that doesn’t mean “teaching more to the bar exam” or short-changing the needed skills and professional development programs many schools — including ours and his — are expanding. But it does mean owning the problem and finding a solution.

Another area of disagreement is in how we think about the role of the bar exam. Dean Parrish suggests there are two groups of states: the “protectionist” ones (presumably including California, although he doesn’t identify others) and those that “seek to ensure simply minimum lawyering competence.” We’re more hesitant than Dean Parrish is to attribute a protectionist motive to the California bar examiners. Indeed, California has long had a bar exam that tested more lawyering competence skills than most. Many states’ bar exams include only the multistate multiple choice questions and subject area essay questions. By contrast, California’s exam includes questions based on sets of documents and legal materials and is, according to the instructions for the July 2016 exam, “designed to evaluate your ability to handle a select number of legal authorities in the context of a factual problem involving a client.” That sounds like an effort to ensure “minimum lawyering competence” to us. And it’s hard to imagine a state less protectionist in letting people take the bar exam than California, where graduates from the state’s ABA-accredited, state-accredited, and unaccredited law schools are all eligible to sit for the exam. Whatever happened in California this past year, we are skeptical it can be dismissed as mere protectionism.

As we noted, state supreme courts have the right to control admission to the bars of their respective states. For the most part, this is done through bar examinations that screen prospective lawyers for some abilities related to the practice of law. These exams are admittedly imperfect and can certainly be improved. The ongoing debate over the growing acceptance of the Uniform Bar Examination (UBE) is helping clarify the importance of rigorous test development (a strength of the National Conference of Bar Examiners that produces the UBE) as well as local content (an historic strength of state bars). So, though we agree with Dean Parrish that bar exams need continuous improvement, we also must all work to get our students through the exams as they are now.

In short, we think it is reasonable for professional schools that hold out to their students the promise of a legal career to be held to a reasonable standard for graduating students who actually are capable of obtaining the license needed to have that career. That doesn’t detract from the need to teach law students legal doctrine and to “think like lawyers,” or to provide externships, clinics and other opportunities for experiential learning. But it does mean law schools bear a good deal of the responsibility for their graduates’ professional outcomes. We are confident that our colleagues in the legal academy can satisfy that responsibility without turning law schools into three-year bar prep courses.

http://taxprof.typepad.com/taxprof_blog/2017/01/deans-boise-morrisswhy-we-still-support-the-abas-proposed-75-bar-passage-requirement.html

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Comments

Glad to see there are at least two law deans out there with some integrity.

Posted by: lawprof | Jan 21, 2017 9:49:24 AM

The lack of responsibility by those challenging the standard is disgusting. YOU ARE ADMITTING LESS CAPABLE PEOPLE FOR CASH FLOW PURPOSES AND THEY ARE PREDICTABLY (UNDER)PERFORMING ON THE BAR EXAM. End of discussion.

Posted by: Anon | Jan 21, 2017 11:37:05 AM

Way back in 1960, I took the Virginia Bar exam at midterm of my last year at Georgetown Law Center. (Passed on the first try...thanks to Professor Woodbridge's notes). I read that only about 30% of the applicants passed that time, and that most of those were from Georgetown, George Washington, and American law schools in the District of Columbia. U Va grads were far behind. Soon after they changed the criteria for passing the bar...too many scions of old lawyer families were being denied their rightful place in the sun.

Posted by: Jim Brock | Jan 22, 2017 9:09:17 AM

"The lack of responsibility by those challenging the standard is disgusting. YOU ARE ADMITTING LESS CAPABLE PEOPLE FOR CASH FLOW PURPOSES AND THEY ARE PREDICTABLY (UNDER)PERFORMING ON THE BAR EXAM. End of discussion."

Amen, Anon at 11:37. That's the situation in a nutshell. Thank you for speaking the truth.

Posted by: LaVonna | Jan 22, 2017 10:10:44 AM

Are you sure bar pass rates are the best metric for gauging law school performance? It is my understand the top schools don't even teach the bar exam, but their students consistently have higher pass rates than "lesser schools." So what gives? Perhaps a minimum LSAT score would be more effective?

Posted by: Dale Spradling | Jan 23, 2017 5:57:55 AM

I have a law degree, from an Australian university, undergraduate and postgraduate.
I have been professionally responsible for researching global developments in the legal system and tertiary legal education, for the last 10 years.

As an independent evaluation methodology, one might imagine, without having any specific knowledge of the USA Bar Exam, that I would be able to pass it, at the current rate, or a 75% rate. Now, whether the ABA would be prepared to permit me to take the exam, as a means of establishing that evaluation from an external-to-the-USA testing position, is debatable.

Importantly, my own evaluation of the content of that exam, may resulted in concluding that the actual bar exam does not sufficiently test the skills and knowledge that an actual modern day law firm looks for and demands from graduates.

To anticipate and dispel one line of thinking, we live in a global society, and so does the law. Take Brexit, as a clear example from recent times. That there is not one universal Bar Exam, that is global in approach, as opposed to exams that are based on USA-State-centric principles of evaluation, is mind-boggling to a non-USA citizen.

It breathes stale air, polluted by the interests of the wealthy, and the institutions that have been summarily challenged for the last decade, to be tested on the cost of the education they provide, and adequately whether it reflects the availability of employment for their graduates.

Leaving the issue, of adequate. Based on accepting a number of graduates that will reasonably be expected to pass. With a reasonable expectation on the part of those graduates to be able to obtain suitable employment, that will be both a return on the substantial investment they are required to make to become educated and graduate, and a career that provides them with an opportunity to contribute to the needs of society for capable, ethical lawyers. And a bar test, that reasonably can be expected to have content that tests those students on the skills needed by the modern world, today and in the future.

Of course, that may also leave the requirement for a USA tertiary institution to choose to sponsor my participation. When I contemplate the current debates and issues, any Administration that is more concerned with their bank balance and maintaining their own 7-figure paychecks, is unlikely to look favourably upon this idea. Least of all, those representing Charlotte Law School.

It simply wouldn't be reasonable.
Replies: myanonymity001@gmail.com


Posted by: Andrew | Jan 24, 2017 1:10:10 PM