TaxProf Blog

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

Saturday, January 23, 2016

Kuehn:  Clinical/Experiential Courses Are Not To Blame For Declining Bar Passage Rates

Robert Kuehn (Associate Dean for Clinical Education, Washington University), Whither Clinical Courses and Bar Passage:

Bar examination passage rates are down again in many states. ... In response to the declines, some blame an easy scapegoat — too many electives (especially experiential courses) and too few bar-tested courses. While limiting experiential or clinical courses or credits or mandating more bar courses presents an easy way of appearing  to do something,  there is no available evidence that students who take more experiential or clinical courses do worse on  the bar exam, and only a limited, weak positive correlation between bar courses and bar exam success.

Fueling this finger pointing against experiential courses was a comment from the president of the National Conference of Bar Examiners (NCBE) on factors that could explain the decline in bar passage percentages: “In addition, the rise of experiential learning may have crowded out time for students to take additional ‘black-letter’ courses that would have strengthened their knowledge of the law and their synthesis of what they learned during the first year.” She suggested another factor could be that schools are requiring fewer bar courses, “thereby permitting students to miss (or avoid) core subjects that will appear on the bar exam.” A possible connection between clinical courses and declining bar scores was also later raised by the NCBE’s director of testing and research.

Unfortunately for the debate over the causes of bar exam failure and what schools might do to address the problem, these statements were made without reference to any supporting evidence. Indeed, none exists. In response to my inquiry whether there was any empirical basis for asserting that students with more experiential coursework perform, on average, worse on the bar exam or that taking more bar courses will increase  a student’s chances of success, the NCBE president replied that she was unaware of any research but would check with her testing staff. A follow up six months later confirmed there still was no supporting study to share.

I too am unaware of any published study examining the relationship between experiential or clinical coursework and bar passage. ... Studies do consistently find that law school grades and LSAT scores have the strongest relationship to bar exam success.

Regarding a relationship between enrollment in bar courses and bar passage, published studies show no, or a small, positive relationship, but only for a narrow range of students. ... [W]hile some authors claim, without empirical support, that bar courses will improve a student odds of passing the exam, and while schools continue to advise their students that the key to bar success is enrollment in bar courses, published studies do not support those claims.

But, all is not lost. Statistical analysis of bar performance at a number of schools has found that specially designed academic support and bar passage programs can improve passage rates, especially for students who have not performed well in law school. ... Of course these programs require a much greater commitment of a school’s resource than simply piling more bar courses on at-risk students. Yet, irresponsibly scapegoating experiential courses for bar failure or forcing students to take more upper-class bar courses as a purported solution is, as the authors of the most respected study warned, “overly simplistic” and “will not solve the bar examination failure problem.

https://taxprof.typepad.com/taxprof_blog/2016/01/kuehnclinicalexperiential-courses-are-not-to-blame-for-declining-bar-passage-rates.html

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Comments

Declining enrollment standards to make a SALE are to blame. The legal academy has entered an unhealthy cycle of declining enrollment standards. It's all about "moving iron."

Posted by: Captain Hruska Carswell, Continuance King | Jan 23, 2016 9:08:07 AM

I think arguing over bar passage is pointless...the correlation to LSAT is clear and convincing. The real question is whether teaching to that test is the right approach. All but the very top ranked schools of course remain tethered to that link. But it seems more than reasonable to ask whether the bar exam bears any relation to the practice of law,or should.

Posted by: Steve Diamond | Jan 23, 2016 6:48:35 PM

Change the bar exam to test what lawyers really do. Then, teach to the test.

Posted by: Scott Fruehwald | Jan 24, 2016 2:03:03 PM

@Diamond,

The bar exam is more related to the practice of law than law school is. Ask any practicing lawyer.

Posted by: Unemployed Northeastern | Jan 25, 2016 8:53:36 AM

@ Diamond,

It seems reasonable to ask whether the bar exam should bear any relation to the practice of law? Really? It does? What are the valid reasons the bar exam should not relate to the practice of law?

Posted by: JM | Jan 25, 2016 10:08:16 AM

The bar exam is a test of reading comprehension and legal analysis skills as much as it is a test of substantive knowledge of law (or memorization of law). Therefore, taking courses that further the development of those skills (clinical, writing and other experiential courses) could actually increase chances of passing a bar exam.

As for clinics specifically, many of my clinical colleagues require their students to take practice performance tests, which are administered as part of the bar exam in nearly 80 percent of states. Hence, our graduates who have taken a clinic enter the summer of bar prep better situated to succeed on one part of the exam than their classmates who have not. The same could be said for those who have taken several courses focused on legal reading, analysis, and writing because the performance test evaluates these skills and does not evaluate knowledge or memorization of law at all.

Once the summer bar prep period arrives, the most forgotten part of the exam is the performance test. Sitting down and taking a practice performance test eats up about twice as much time as a taking a practice essay or 25 practice MBE questions. Plus, because the performance test is strictly a skills test requiring no memorization of law, students mistakenly think that they need not worry so much about preparing for it. As a result, students focus mostly on MBE questions, less on essays, and less still on performance tests. I base that on 14 years of observation, not on empirical study though.

All of this tells me that taking writing, clinical and other experiential courses might very well have a positive correlation with bar exam success, especially where the taking of those courses pushes students to practice their writing or, even better, take practice performance tests under timed conditions.

Posted by: Ben Bratman | Jan 26, 2016 2:08:25 PM