Monday, March 13, 2006
NLJ: Bar Exam Failures on the Rise
Inteersting article in this week's National law Journal: Bar Exam Failures Are on the Rise, by Leigh Jones:
Hiring partners don't mention it, would-be associates won't touch the subject, and law schools would rather avoid the issue altogether. But the possibility of failing the bar exam becomes a reality for tens of thousands of law school graduates each year. And it's getting worse....
Nationwide, some 28,110 people failed the test in 2004, for a 64% pass rate. By comparison, 65% passed in 2000 and 70% passed in 1995....
Since 1995, the number of people failing the test has ballooned by 28%, while the number of law graduates taking the bar exam has increased by 6.4%, according to the NCBE. In 2004, some 77,246 people sat for the bar exam, compared to 72,591 in 1995. Although fewer graduates overall are conquering the test, apparently law firms are not taking pity. In fact, many firms in recent times have adopted a strict "two strikes" policy, said Susan Robinson, associate dean for career services at Stanford Law School.
https://taxprof.typepad.com/taxprof_blog/2006/03/nlj_bar_exam_fa.html
Comments
"one would expects graduates of places like Jerry Falwell's Liberty University to have excellent bar exam pass rates, but this is not the case."
Liberty University's first law school graduating class was just announced at an 83% pass rate, well above the national average, and an amazing achievement for a new law school. Only two other law schools in VA have higher pass rates. I'm not sure where or how you made your statement in 2006, considering that fact that no lawyers had yet graduated from Liberty. I hate to assume you are liberal, but you were defending law schools that teach liberal ideas instead of or mixed in with law. You seem to have made up a figure off the top of your head to stereotype the opposite end of the spectrum.
The is probably a lot of reasons LU's first class did so well. First, that they are most likely committed Christians, considering they go to LU, and second because they are not "uneducated" or "ignorant" but very well informed. Not all Baptists are ignorant, we try and study all sides of the issue so we can earn the right to be heard and to properly debate the issues.
Posted by: Andrew Galloway | Oct 22, 2007 9:03:59 AM
"I don’t mind failing (which I didn’t) due to a hard test, but I do mind failing due to the test writer’s incompetence."
Genau, as the Germans say. I think the bar pass rate has dropped due to the current state of the MBE. I took & passed the bar years ago, but recently had to take it again due to a forced move to a state w/o reciprocity. When I took it the first time, after graduating from a top 10 law school that would never get off its high horse long enough to teach to the bar, I never heard of anybody practicing on THOUSANDS of MBE questions. Yet a recent taker told me, "But you HAVE to!"
And even if you do 3000 questions, the answers on the MBE are likely to remain unintelligible. I ran into a practicing attorney already admitted in two states who said, "I'd look at a fact pattern & think, Oh, I know what they're getting at. Then I'd look at the answer choices & say, Huh?" That's just how I felt. Though it may be deliberate, rather than a result of incompetence. On the questions that are completely useless - b/c they ask which answer is the LEAST correct - that's where you'll see the exact answer you would have picked had the question been straightforward. Except now, because it's correct, it's wrong. Fun, huh? The LSAT, SAT & AP tests were never like that. It's enough to give you PTSD.
I've often heard it said that the pass rates are dropping because new law schools are opening & admitting students who have "no business being lawyers." So in FL they raised the cut score by 5 points - a big deal on a test where no one ever gets above 80% correct - which should tell you something right there. The FL SCt's stated reason was to protect the public from incomepetent lawyers. (Perhaps a bit of AA backlash, since the Court that gave us Bush v. Gore disregarded evidence that raising the cut score would have a disparate impact on minorities.) Yet, new admittees end up practicing with people whose scores wouldn't be high enough to pass today. Has anyone heard of FL rounding up the latter group & making them re-take so that the public is safe? Don't hold your breath. They raised the cut score to limit the number of lawyers. And bar review parasites will keep lobbying states to deny reciprocity, raise their cut scores & keep their tests impenetrable, because pass or fail, they & the bar admissions people all get paid.
Posted by: NotAgain | Apr 2, 2006 6:48:04 PM
The multiple choice questions were great. It iss the only kind of question that you can really predict your performance on.
Posted by: Nick | Mar 23, 2006 7:20:35 PM
I suspect it has to do with the increase in the number of law schools. We have had new law schools pop up in Florida and California. I bet they are letting in more student than shouldn't be going to law school.
I also think some students aren't very serious about the bar exam. They don't study in May and June and think they can do all their studying in July. For those outside the top 20%, that is a recipe for disaster. I also think law students believe that simply showing up to Barbri every day and listening to the tapes is going to do it. Finally, I loathe those multiple choice questions on the multi-state.
Posted by: chuckles | Mar 16, 2006 8:33:22 AM
Wouldn't it be easiest to figure out whether a bar exam in a particular state is getting harder or easier to pass, relative to the rest of the country, by matching bar passage to LSAT scores? I'm pretty sure that data has to be out there already, seeing as how everyone tells me my 170 LSAT is an indicator that I'll probably pass the bar (this year 170 is around the 98th percentile) while my mom's 153 (50th percentile, or close to it) has caused her all kinds of panic now that she's getting ready to graduate, even though she's doing quite well in law school and she took the exam nearly four years ago.
Anyway, if all of a sudden 160 LSATs are failing a state's bar exam, when two years ago they almost all passed, that'd be a better indication of whether the exams are getting harder (since the LSAT is the same across the country, any variation in LSAT difficulty should affect all states equally; you'd have to look at all the data together before saying anything meaningful about, say, New Jersey versus California.) And if 170 LSATs in one state are failing, while almost anyone above 150 is passing in a different state, we could say something useful about the relative difficulty of the two exams.
(Or in other words, I find anecdotal evidence unpersuasive. You can map the LSAT/bar passage graph to racial preference legislation in a given state, too, if you like...)
Posted by: Sarah | Mar 14, 2006 8:52:17 PM
"In Oregon, where I live now, the pass rate is in the 40s. Is that because we have more poorly prepared people here?"
I have to take issue with this. I took--and passed--the Oregon bar exam last July. The overall pass rate was 70%, and the pass rate for first time takers was 76%. You'd have to go back to February 1999 to find a pass rate below 60% on the Oregon bar, when it was 59%. Nowhere near 40%!
Posted by: Jessica | Mar 14, 2006 6:31:19 PM
Re: CPA > Attorney
I think it's ridiculous that so many people pass the exam - a 65% pass rate is easy. The CPA exam has a pass rate of around 15% for the whole exam (and around 25% for any given part). It's not surprising that CPA's are so much smarter than lawyers. No affirmative action here...
I think we look at Japan, with their 1% pass rate on the Bar, and see the years of potential high-productive labour gone down the tubes because well-educated and high performing young people struggle and fail, year after year to pass the shihou shiken, and think: "We don't want that." Not, I suppose, that all observers think turning intelligent young people into lawyers is the optimal use of our human capital, but the market clearly puts some value on it, in the aggregate.
That said, I think the CPA exam actually relates to your core competencies as accountants much more directly than the Bar exams relate to a lawyer's basic competence. You probably can't make your exam too much easier without admitting clearly underqualified people.
Re: my notion that affirmative action may not be to blame
This seems to me to be grasping at straws. If anyone decided to go to law school for the reasons you mentioned, they certainly would be very committed to their course.
Why? If you're going to law school just to kill 3 years and preserve your employability (by avoiding spending a year in your parents' basement, say) why would you be "very committed" to that course? I mean, true, pretty much no matter what, a significant proportion of law school classes, even at elite schools, is probably made up of people who had no idea what to do after undergrad, so they decided to apply to the graduate program with the fewest requirements and the largest admissions pool (law school), quite regardless of the outside employment climate . . . but still.
While I do, as a matter of fact, think that admitting minorities with inferior qualifications probably does account for greatly elevated bar-failure rates at the middle and lower-tier schools (not so much at top-tier, because top-tier get the pick of all litters, no matter how you slice the applicant pool), I don't think we should immediately leap to that conclusion without some showing that there's been an increase, since the 90s, in minority admits and that that increase really is tied to increased bar failure rates. I think this is especially so when we know (leastways, I think we know) that the population of law students increased substantially in the early 21st century, and that this increase was tied to a weak employment market for recent college graduates. It seems much simpler to me to connect the increased population of law students with increased failure rates on the bar, particularly when the absolute number of passes has remained more or less constant. Doesn't that naturally suggest that new marginal law students are underperforming? Not everything is about affirmative action, and I honestly doubt this increased fail-rate thing is primarily a side effect of affirmative action policies at law schools.
That said, an even better hypothesis has appeared elsewhere in this thread, namely that state bars have made their exams harder in recent years, to manipulate the supply of new lawyers.
Posted by: Taeyoung | Mar 14, 2006 4:52:40 PM
As others have noted, bar exam pass rates are set by each state, often after the exam has been taken and graded. Like most licensing laws, bar exams are about keeping competition down by not admitting too many members, not about protecting the public. I have taken and passed two of them in two different states, and from my observations of myself and others taking these tests, the correlation between grasp of the law and pass rates is very low. Especially on the MBE, which is a complete multiple guess joke. There are two kinds of questions on the MBE: one where two answers are wrong and two right, and you have a 50% chance of guessing right, and the other where they are all wrong, and you have a 25% guess chance. This is supposed to test analytical thinking ability, but that is absurd, as any person who has ever taken it will tell you, er, bar none. In Oregon, where I live now, the pass rate is in the 40s. Is that because we have more poorly prepared people here? No, it is because the bar examiners predetermine the pass rate. That means the exam is, by definition, not about mastering a given body of knowledge, but about flunking 60% of the people who take it, regardless of their level of knowledge. Why would they want to do that, do you suppose? I am as big an opponent as anyone of affirmative action, politicized law schools, excessively "theoretical" curricula, and all the rest. But they have nothing to do with bar exam pass rates.
Posted by: freetotem | Mar 14, 2006 2:22:23 PM
Taeyoung: It's certainly true that the overall applicant pool for law schools is larger today than it was 30 years ago, and that in the age of the internet more people apply to schools they'd never have considered in those days less available information. The result of this is that the talent pool overall is probably better than it was 30 years ago, hence your suggestion that students in the 'middle-ranked' aren't so very much different than at the top schools. That's partly true. Where the comparison fails, IMHO, is in the depth of a class: at the top schools (say top 20 since there are so many different rankings) the difference between the best student and the bottom of the class (among 'regular admits) is very small. At the middle ranked schools (say from 20-40), the top students are probably as good (or very very close) as the best students at the top tier schools, but the average student is not as good as the average at the top schools, and the gap between the top and bottom of the class is much greater (again among regular admits). As you get down to the proprietary schools and lower tiers of public law schools, even if the very best students could survive at the top schools, there are probably very few of them, the average is much lower, and the gap between the top and bottom of a class his huge.
Posted by: CatoRenasci | Mar 14, 2006 1:34:52 PM
I think it's ridiculous that so many people pass the exam - a 65% pass rate is easy. The CPA exam has a pass rate of around 15% for the whole exam (and around 25% for any given part). It's not surprising that CPA's are so much smarter than lawyers. No affirmative action here...
Posted by: suzy q | Mar 14, 2006 1:06:17 PM
Having passed the MBE on the 1st try, I feel in a position to criticize it.
It is an unfair test. It is just poorly written.
I actually found the hellish Patent Bar Exam to be a fairer test than the MBE. And the Patent Bar (pre-computer, circa 2004) was 100 questions along the lines of:
From this Yellow Pages sized book we have taken 5 sentences. We have added the word “not” to four of them. Which did we not add the word “not" to?
That was a fairer test than the MBE.
1) I agree with ProCynic that you have to pick the BEST answer not the correct one. I should not have to guess between multiple correct answers. How am I supposed to know which of 3 affirmative defenses the test writer thinks is better?
If you win on any of the affirmative defenses you win, and the prompt has informed me that all affirmative defenses are provable.
2) The Contracts section is intentionally poorly written. Each question leaves out an important fact you are to assume. If you assume a fact that wasn’t intended by the test writer (but perfectly logical nonetheless), an incorrect answer becomes correct. So, your ability to answer the question turns not on your knowledge of the law, but on your ability to assume the same facts as the test writer. That is wrong. Poor question writing on their part.
3) Supposedly there are only 6 (IIRC) subjects on the tests. However, there are usually 1 or 2 questions that have nothing to do with the 6 subjects. In my test I was asked a Wills & Trusts question. I assume they counted that as a Property question, but you had to know probate law to answer it correctly.
If you want to cross-question subjects, fine. Just do it in the essays were you have 10+ subjects to select from or cross-question from the 6 subjects. Don’t go to a 7th subject that is outside the testing universe.
4) This is a complaint against Law Schools, not the MBE. Property on the MBE is actually Property Transactions (recordation, etc.) not basic Property (joint tenancy, etc.). Law Schools should make this clearer and require Property Transactions.
Everyone I know who failed the Bar (including multiple times) failed due to the MBE. It is a poorly written test and needs to be fixed. I don’t mind failing (which I didn’t) due to a hard test, but I do mind failing due to the test writer’s incompetence.
Posted by: Joe | Mar 14, 2006 1:01:59 PM
I'm sure a person could take a single semester of law school, take the bar review class, and have nearly as good a chance of passing it as someone who had six semesters of law school, and in fact have a much better chance than someone who had sex semesters of law school who then didn't study for the bar because he assumed that he learned what he needed to know in law school.
The MBE is an interesting test, and I agree with the person who said that it's less related to practice of law than the essay questions, but it's not the reason for bar passage rates falling. The MBE is intended to be graded on a curve, no one can get every question right. Because the MBE is a standardized test much like the SAT, even though the questions are different each year, the scores can be scaled so that a 170 this year indicates the same level of ability as a 170 from previous years.
Posted by: Half Sigma | Mar 14, 2006 11:54:56 AM
"It could also be that, because of the economic environment in the early 21st century, more people decided to go to law school than normally would have done, and those extra people were more likely to be less committed to law, despite their academic qualifications being easily the equal of those who would have applied to law school anyhow ... That lesser commitment might translate into less studying etc. leading to failure on the bar."
This seems to me to be grasping at straws. If anyone decided to go to law school for the reasons you mentioned, they certainly would be very committed to their course. Fortunately not everyone is afraid of considering the elephant in the living room - lowered admissions standards based on racism or genderism.
There is something to be said for vacuous postmodernist nuttiness invading the law schools as well.
Posted by: Caledon | Mar 14, 2006 11:43:18 AM
Racial Preferences and Bar Exam Failure are inextricably linked. If you look at the data, the deeper into the applicant pool schools have to dive in order to get the number of minorities they want, the lower the graduation rate and bar pass rate.
When the elite schools began practicing preferences in the late 60s, they recognized this phenomenon almost immeadiately; they were enrolling minorities who then promptly flunked out. At that time, the elite schools were relatively unforgiving; the 1/3 flunk out number for Harvard Law quoted in The Paper Chase was real at the time the author went to Harvard. By the time The Paper Chase made it to television Harvard and its compadres had changed to a system that ensured that virtually everyone admitted to elite universities graduated, largely through a system of second chances, raced-based scholarships and racially targeted tutoring.
The bottom of the barrel was reached intially in the mid-1980's; by the early 1990's the number of minorities in the pipeline was large enough that, though the quality of non-Asian and non-Cuban minority students was substantially lower than that of Asian, Jewish, Cuban and Anglo students (for instance, in 1992 only a single African-American or Mexican-American student out of 89 enrolled at the University of Texas met the standard for non-minority student admission), the nadir had actually been passed.
The renewed drop in the mid-90s is almost certainly a result of the reactionary lowering of standards in response to race-neutral mandates on universities (though initiative in California and Oregon, Executive Order in Florida, and litigation in Texas). In each case, universities responded to the ending of racial preferences with so-called "percent plans" and greatly increased recruiting of student in minority and "non-traditional" schools.
The result of this is to lower the overall quality of students. Before, the racial preference scheme only led to admission of less-qualified non-Cuban, non-Asian, non-Jewish minorities; the new system leads to admission of less-qualified students of all ethnic backgrounds, because it is based almost solely on class rank, which by itself is little more indicative of likely success than a coin flip. Class rank in combination with standardized testing and decisions made in part based on the competitiveness of the schools. In the new percent-based plans, all schools are treated as if they are equally capable of producing college-ready students, whether they are elite suburban schools or collapsing inner-city riot zones.
The simplest and most ethical solution to the collapsing bar exam passage rate is abolition of these racial quotas in disguise. The likelihood of this happening approaches zero.
Another, but equally unlikely solution, is a the abolition of the bar exam (Wisconisn already omits the bar exam requirement for the graduates of in-state law schools.)
Most likely will becontinued refusal to ackowledge the demographic characteristics of the failures, combined with expanded use of tax dollars to subsidize law school graduates who are designated as "at risk" for failure.
Call it "no law school graduate left behind." ;-) After all, every time a law student hurts, government must act -- as long as we're talking about a "disadvantaged" minority.
Posted by: David Rogers | Mar 14, 2006 11:23:53 AM
Why do so many comments here have a preface remark about New Jersey? Are people reading NLJ as NJ, or am I missing something?
Posted by: denise | Mar 14, 2006 11:00:23 AM
The big difference, of course, between the top law schools and the proprietary schools (and everything in between) was the fact that students at the elite law schools were usually graduates of elite colleges and universities (but some came from 'lesser collleges') and had excelled as undergraduates (and often as graduate students). In short, they were, on average, a whole lot smarter.
I went to a top-10 law school. Top-5, in fact. And I am a very recent graduate. And while I'm sure my class was, on average, rather smarter than a corresponding class at a less elite-institution, let's not get carried away here.
Not that much smarter.
I suppose a fair proportion came out of posh undergraduate programs at Harvard and Princeton and whatnot. Probably they had decent grades, and decent LSAT scores. In my case, I came from a respectable engineering-school, had mediocre grades (mostly B's), and an excellent LSAT score. The notion that law applicants had, in any way, to excel as undergraduates . . . well, it may have been true when you were going to law school, but it's certainly not true now. As I said above, even at elite schools, the bar is not actually set very high.
So it may have been true, when you were at law school, that there was such a yawning gulf between the elite and non-elite schools. But I don't think that's true, now. Elite schools still have student bodies that are, on average, more distinguished and more qualified than middle-ranked schools. But not that much more.
Well, not unless students at the middle-ranked schools are rather worse than I think they are.
Posted by: Taeyoung | Mar 14, 2006 10:19:38 AM
I don't know about New Jersey but there have been studies of bar exam pass/fail rates for Texas (results here). The results vary by race but this article summarizing a study by St. Mary's Law School in San Antonio, Texas, highlights the correlation between failing the bar exam and low grades in law school.
Posted by: DRJ | Mar 14, 2006 10:01:50 AM
One should ask the Stanford career services person whether Quinn Emanuel has a "two strikes" policy.
Posted by: gst | Mar 14, 2006 9:53:34 AM
"In Illinois they deliberately raised it in the mid-90s. I passed in '93 when 91% of the people passed (if you can't pass that test you are a dimwit). Now it is harder."
Same thing happened in Kansas also in the mid-90s, although I couldn't give you the percentages.
I agree with Fred that we can't attribute this to AA unless we know that has increased in the last 10 years, which I doubt. Similarly, I doubt law school professors are more liberal as a group now than they were 10 years ago.
Since at least 3 commenters here have mentioned states deliberately raising the passing score, it seems there may have been a mid-90s trend that accounts for at least part of lowered pass rates.
Posted by: denise | Mar 14, 2006 9:51:02 AM
Other commentators have noted that the there seems to be little correlation between what's taught in law school classes and what's tested on the bar exam.
The more things change, the more they remain the same. When I was in law school (1978-81), the "national" law schools -- roughly corresponding to the top 20-30 law schools -- did not even purport to 'teach to the bar exam' and in fact it was a point of pride that they did not. These schools (ranging from the elite ivy law schools through the best of the 'public ivy' law schools) had (and still have, I'm sure) pretensions to academic rigor and teaching about the law and held themselves aloof from schools that 'merely' taught students how to pass the bar exam.
Ironically, it was the elite law schools that had the best bar passage rates and the proprietary law schools which taught to the bar exam (usually that of the state in which they were located) which had the lowest pass rates. In California, students in many of these schools even had to take the 'baby bar' exam at the end of their first year in order to continue with their studies and become eligible to sit for the bar exam itself.
The big difference, of course, between the top law schools and the proprietary schools (and everything in between) was the fact that students at the elite law schools were usually graduates of elite colleges and universities (but some came from 'lesser collleges') and had excelled as undergraduates (and often as graduate students). In short, they were, on average, a whole lot smarter. Most of the students at the top 20 law schools had LSAT scores that put them in the top 10% of the test-taking pool - itself a self-selected elite subset of the college student pool, which in turn is (on balance) mostly a subset of at least the top half of the general population. So, the students going to the top law schools some 20 years ago (affirmative action admits aside) were highly likely to be among the top 5-10% of the overall population.
Posted by: CatoRenasci | Mar 14, 2006 9:31:23 AM
Taeyoung, I concur. Until I see well presented data, it seems we all are only citing personal observations. If these are not invalid, well, what of my experience? Minority admit, did well in a top 20 law school, passed Calif bar first attempt (big deal). A friend did phenomenally well at same school (also minority admit) - clerked for famous 9th circuit (non-liberal) judge - then at SCOTUS. If success has a thousand fathers, well it sadly seems that failure does not lack for attribution either.
Posted by: Californio | Mar 14, 2006 9:12:52 AM
If liberal law professors teaching politics rather than law were responsible for the high rate of bar exam failures, one would expects graduates of places like Jerry Falwell's Liberty University to have excellent bar exam pass rates, but this is not the case. I'm at a top 20 law school and I've had only one prof who was overtly ideological in class. They're not teaching us to pass the bar exam, that's something we do on our own, but the reasons for that have nothing to do with political ideology.
Posted by: Cornellian | Mar 14, 2006 9:03:41 AM
TO: Whomever
RE: The Interesting Dichotomy
Law schools are interested in winning students. Law firms are interested in winning cases.
In light of the PC-based fiasco we currently call the American public education system, I'm not surprised at this report.
Everytime I hear a discussion amongst the educators on the community's citizens' commission to overwatch the government's activities, I keep hearing about how the K-12 range is doing so well. However, when the college side speaks I hear how the students they are getting can't do the math or the English.
And we didn't expect this to NOT to go to higher levels?
Look at the key indicators. Congress recently passed a law to allow foreign professionals to stay longer here. Why? Because we can't generate enough highly trained people ourselves.
Regards,
Chuck(le)
P.S. I blame the PC-based higher education system for part of this as well.
[Image is everything....until you get to the point where the tread meets the pavement.]
Posted by: Chuck Pelto | Mar 14, 2006 8:49:59 AM
I think it is a cheap shot to blame affirmative action.
I blame the law schools themselves for not propertly scuttling the careers of those who obviously are not succeeding after their first year. Even ten years ago at law school I noticed two things (that can be attributed to higher education at the college and post graduate level):
Grade inflation.
No one fails.
Let me say that while I may have benefited slightly from the grade inflation, there were many wonderful individuals who simply did not get law school and were never going to get it, but who were retained at the school because, unless you simply did not go to any classes and failed to take the final, such individuals were not failing.
This is about money and exposes a dirt little secret conflict of interest that all law schools are subject to--tuition is the main source of revenue for many law schools; why would an institution knowingly lower its ability to collect sufficient revenue by failing undeachievers who are willing to shell out the thousands of dollars in tuition?
I blame the teachers for allowing this to continue and not biting the bullet and telling those who simply will not make good lawyers (or pass the bar) to try a different career.
Posted by: eddie | Mar 14, 2006 8:37:15 AM
On the subject of New Jersey: it's traditionally one of the easier bar exams in the country, testing only on multistate subjects. However, two things might be contributing to a decline there:
#1. As of 2005, they added a civil procedure question which was broadly open to Federal and New Jersey law. Many students may have been unprepared for a topic that large, and it might have been their breaking point.
#2. A large chunk of Jersey test-takers are doing so as a supplement to another state's bar exam, and many times as a backup. Seriously, many of their applicants are already taking Pennsylvania or New York's bar and doing NJ with a "well, if I fail one, I've got the other" attitude. Hence, anybody who's blowing in PA or NY (both of which have a LARGE number of test takers) is probably blowing in NJ as well.
I do wonder: does the NCLE have a state-by-state demographic? I'd imagine that California's bar exam has a huge failure rate which may be bringing down the national average.
Posted by: ResIpsaLoquitur | Mar 14, 2006 8:30:45 AM
I'm not the biggest fan of affirmative action, but it seems an unlikely reason for recent growing rates of bar failure, unless affirmative action itself has been recently growing as well. I'd guess AA has been fairly consistent over the past decade or two.
Posted by: Fred | Mar 14, 2006 8:29:06 AM
Tae, you clearly never took Torts at Harvard. In prep for our exam I bought a commercial hornbook and didn't even recognize the basic terminology of the subject. We spent an entire semester on the professor's pet theory of insurance subrogation. I ended up having to learn Torts based on 1 day of BarBri. =)
Posted by: Cab | Mar 14, 2006 8:17:07 AM
Re: Keith in Illinois
In addition to the 'affirmative action' programs, I wonder how much this is a result of activist, liberal law professors getting off of the subject in the classroom?
Very little, I expect. What I learned in class and what was tested on the Bar were two rather different things. I suppose there was material from my first year classes that was tested, but other than some basic grounding in the subjects, I had to relearn almost from scratch during my bar prep course. If students were relying on their 1L classroom experience to get them past the MBE and the rest of the Bar, then . . . well, then they're kind of dim and it's no wonder they failed. It's not necessary to go full out and spend the summer doing Bar-Bri or anything, but a serious review focussing on that particular state's Bar subjects really is necessary.
Furthermore, apart from parts of Constitutional Law (possibly including some side material on Evidence, on Criminal Law and Criminal Procedure), there's not much scope, in most bar topics, for liberal activism. I mean, what's the liberal activist stance on Contracts -- that contracts are innately invalid as a tool of Western oppression? That quantum meruit should be rejected as a Eurocentric construct privileging rich white men? It is to laugh!
And even in Constitutional Law and the like, the vast majority of Constitutional Law scholars, whether activist or no, are in perfect command of the quite basic and well-settled material tested in a Bar exam. For Bar-Bri, my presenter on Constitutional Law was Chemerinsky, who is about as liberal activist as they come, and he prepared us just fine. Via an overpriced videotape, sure, but the content was not problematic at all.
I don't think you can blame liberal law professors for bad students. Even if they get off the subject so much the class doesn't cover the proper material, it's not like their students are illiterate -- in theory, they should be able to read the casebook (and the commercial outlines) just fine.
Posted by: Taeyoung | Mar 14, 2006 7:20:23 AM
One commentator asked whether pass rates reflected the result of affirmative action, and another wanted them broken down by law school. Both raise valid points. My own experience with the bar exam, including the MBE, was far too long ago (1981) to reflect current practice, but when I was in law school there was much talk about differential pass rates among law schools in California (where there existed a wide range of private university, public university, and proprietary law schools whose graduates could, through one path or another, sit for the bar) and, much talk about differential pass rates among different ethnic groups. For example, at UCLA, it was common knowledge (which I was able to confirm later) that in the late 1970's the California Bar first time pass rate among ordinary admittees was something like 92%, but it was closer to 66% among black and hispanic affirmative action admittees (who comprised about 10% each of the student body). I don't know if it is still true, but it used to be easy to find law schools' bar passage rates.
Posted by: CatoRenasci | Mar 14, 2006 7:15:06 AM
Part of the problem is the diminishing quality of the law school inputs. Per Keith's comment about "too many talented people throwing it away" in the legal field, I've actually seen signs of the opposite here.
Living in a top 50 city in the central US, several of my business associates were senior partners at the city's largest firms. Of five close associates, only two still practice - the others have left the law completely to obtain MBAs and/or enter the business world. They were the best at their respective firms. Two have taken paycuts but consider the work more rewarding than "being a soulless prostitute" regardless of the compensation.
I went through the decision-making process on law school last year - considering adding the IP law capability to my established senior IT management career. I was so disappointed with the quality of the programs at the business-oriented law schools in our area, and travels to U of Iowa and other schools demonstrated a focus not on law but on absurd, leftist ideological pursuits (this was a true disappointment as we have many U of I PhD alums in our family).
The legal community has spent too much effort on absurd issues unrelated to their core business practice and allowed its reputation to erode. I'd have to conclude we're looking at a situation not unlike GM and Ford ala 1972, with higher quality outsourcing opportunities at lower costs just around the corner.
Credible career of professionals? Increasingly not.
Posted by: Cowtipper | Mar 14, 2006 6:50:52 AM
I'm with Keith in Illinois. If professors from our country's best law schools can't persuade *one* Supreme Court justice with their constitutional arguments, I'm not surprised their students aren't doing as well.
Yes, I'm talking about the Solomon Amendment and FAIR v. Rumsfeld.
Posted by: darren | Mar 14, 2006 6:43:34 AM
From my experience I would say it has everything to do with affirmative action. I know of 15 students who failed the bar exam from my class. 12 of them are black. I graduated from a to 20 law school.
Posted by: Pesty | Mar 14, 2006 6:37:16 AM
What would explain this phenomenon? Several hypotheses come to mind. First, law schools may be relaxing their admissions standards, admitting less qualified applicants (who then fail the bar exam). Another hypothesis is that law school curricula are getting easier, which causes more students to choose law school but at the same time prepares those students less thoroughly for the bar exam.
Are there other hypotheses? How might we distinguish between them empirically?
It could also be that, because of the economic environment in the early 21st century, more people decided to go to law school than normally would have done, and those extra people were more likely to be less committed to law, despite their academic qualifications being easily the equal of those who would have applied to law school anyhow (law school admissions criteria, at least in my quite recent experience, do not set a particularly high bar). That lesser commitment might translate into less studying etc. leading to failure on the bar.
I think any conclusions about affirmative action being behind increased failure rates should wait for information about the racial composition of those who fail their bar exams.
Posted by: Taeyoung | Mar 14, 2006 6:34:08 AM
In Illinois they deliberately raised it in the mid-90s. I passed in '93 when 91% of the people passed (if you can't pass that test you are a dimwit). Now it is harder.
Posted by: Hank Gathers | Mar 14, 2006 6:22:33 AM
Pretty obvious why. The Bar exam is blind, the law schools are not. When you admit students based on their skin color and genitallia, they're bound to score worse than students admitted based on merit alone.
End the reverse racism, NOW. President Bush, have you never heard of an executive order??
Posted by: Robin Seimak | Mar 14, 2006 6:14:43 AM
Actually, based on my own experience taking the bar exam and those related to me by my law school friends and classmates, I would suspect the reason has little to do with affirmative action and much more to do with the so called "multistate" -- the Multistate Bar Exam (MBE), a multiple choice test that forms a portion of most state bar exams anymore. My own state of Indiana added the MBE about five years ago and the passage rate plummeted.
For those who have never taken the MBE, imagine a 250 or so question test where:
1. You have only a few seconds to think about each answer;
2. You're supposed to pick the BEST answer (in the opinion of the test drafters), not the correct answer, because they all could be correct;
3. Each question is designed to trick you, often with fact patterns too bizarre even for Battlestar Galactica;
4. Each question looks something like the following:
"What color is this sheet of paper?
a. white
b. off-white
c. bone
d. ivory"
5. the arbitrariness of grading of essays is replaced by the so-called objectivity of the MBE, which then adds its own arbitrariness by curving "scaling" the grades.
The MBE is only a legalized hazing, not designed to test your legal knowledge or abilities. Everyone I know who has ever taken it has described it as a nightmare in spades, far worse than any essay.
Based on my experience and that of Indiana, I would guess the MBE is at least partially responsible for the increasing failure rate.
Posted by: ProCynic | Mar 14, 2006 5:55:01 AM
I'm mainly of the opinion "suck it up", as I'm in a job where failing exams too many times gets you kicked out (actuarial program) -- and these exams have a 40 - 50% pass rate each usually... and you've got to pass 8-9 exams to become fully credentialed. As you can imagine this takes years for people who get all the way through the process, and some never make it all the way through. Obviously, there are far fewer actuaries than lawyers out there.
Of course, when we fail out, we're not up in our eyeballs in debt to law schools.
I'm wondering if a bar-failer can sue their law school for educational malpractice, by misleading them into thinking that their costly program would adequately prepare them for the bar when they received their degree.
Posted by: meep | Mar 14, 2006 5:32:39 AM
Since Bar passage rates are set by the different state bars, often after the raw scores are calculated; I wonder if this is the result of falling median scores, or a tightening of the passing qualifications. The collective Bar associations do have an incentive to limit the number of competitors in the field. (though I don't neccessarily think this is what's happening, it must be asked).
I personally think the best money spent in law school is that given to BarBri and PMBR. I think a competent person could take the first year of law school, these prep exams, and do quite well on the Bar exams. From there they could get a legal job where they would recieve their real training, just like it is now, but without the extra expense and B.S. of the further two years of law school.
The system is not broke, but there are cracks.
Posted by: ElamBend | Mar 14, 2006 5:17:58 AM
This is silly... I don't know about New Jersey, but I know that in my own state, they've deliberately raised the passing score, so that people who would have passed last year failed this year with the same score. I'd be willing to bet New Jersey has something similar going on.
Posted by: Alex Knapp | Mar 14, 2006 5:17:02 AM
I don't see a problem. Too many talented people are throwing it all away in a dead-end law career.
Posted by: Ross | Mar 14, 2006 5:14:00 AM
In addition to the 'affirmative action' programs, I wonder how much this is a result of activist, liberal law professors getting off of the subject in the classroom?
Posted by: Keith in Illinois | Mar 14, 2006 5:02:04 AM
My back-of-the-envelope calculations based on these numbers tell me that 50,814 passed the bar in 1995, while 49,136 passed in 2004. Not a huge difference, seems to me. So it seems that the increase in the number of people taking the exam pretty much mirrors the increase in the number failing the exam.
What would explain this phenomenon? Several hypotheses come to mind. First, law schools may be relaxing their admissions standards, admitting less qualified applicants (who then fail the bar exam). Another hypothesis is that law school curricula are getting easier, which causes more students to choose law school but at the same time prepares those students less thoroughly for the bar exam.
Are there other hypotheses? How might we distinguish between them empirically?
Posted by: Don | Mar 14, 2006 5:00:51 AM
It would be interesting to discover how much of the increased failure rate is due to the so called "affirmative action" programs so fervently adored by the academy (from tiime immemorial, elitists have always loved to discrmininate). On the other hand this is not all bad news; it means fewer lawyers!!
Posted by: Dave in Michigan | Mar 14, 2006 4:44:05 AM
A user had posted earlier that graduates of schools "like Jerry Fallwell's Liberty University" did not do well on the exam. On the contrary, the first class to graduate from Liberty was recently announced at an astonishing 83% pass rate.
Posted by: Andrew Galloway | Oct 22, 2007 9:05:33 AM