Paul L. Caron
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Wednesday, November 16, 2016

Muller:  The Coming Reckoning For Non-JD Legal Education, As Enrollments Soar And Bar Passage Rates Hover At 30% For Foreign LLMs

Derek Muller (Pepperdine), The Coming Reckoning for Non-JD Legal Education:

As JD enrollment falls and non-JD enrollment increases at law schools, leading to a dramatic increase in the percentage of legal education focused on a non-JD student body, it's worth considering what non-JD legal education looks like, where it's going, and what the future may hold. It's a story of some unusual and under-discussed factors that portend a coming reckoning....

As I've noted before, one in ten students enrolled in law schools in the United States are not part of a JD program, a number likely to continue to rise:

 

I'll focus on one particular kind of degree to start: the "post-JD law degree" for "foreign lawyers seeking to practice in the United States." In 2015, there were 6529 bar exam test-takers (including repeaters) who attended law school outside the United States. Virtually all of them (4754, or 73%) took the New York bar. Combined with the 1142 who took the California bar, over 90% took these two states' bar exams. ...

If one examines the cumulative bar pass rates of non-US law graduates--most of whom have been required to complete a program at an ABA-accredited law school--and compares them to the pass rates of ABA graduates, the results are quite striking. The overall bar pass rate for ABA graduates has been in decline for several years, drifting down from 74.3% in the February & July administrations in 2011 down to 64.4% for the administrations in 2015. (These test results include all test-takers, including repeaters, those who took multiple states' bar exams, those who were not recent law school graduates, and test-takers in United States territories.) But those who were educated outside of the United States--and almost all of whom secured a degree from a program at an ABA-accredited school--now sit at a meager 28% overall pass rate, a slight decline in recent years.

https://taxprof.typepad.com/taxprof_blog/2016/11/mullerthe-coming-reckoning-for-non-jd-legal-education-as-enrollments-soar-and-bar-passage-rates-hove.html

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Comments

Dear Derek:

Hoping to pass the bar exam and having a reasonable expectation that one should pass it are very different things. A JD student who completes 88 credits at an ABA accredited law school should have a reasonable expectation that they have been prepared by their law school to pass a bar examination.

But I do not believe the same is true for LLMs. Programs of 24 to 26 credits taken over a single academic year taught to persons for whom the laws of the United States are foreign cannot reasonably be expected to prepare you to pass an American bar examination. The specialized education should give you added training that should be useful to your law practice, as it would be for any of us who chose to take an LLM degree after earning our JD here. But it is simply not fair to say that the LLMs should expect to be able to pass the exam based on the LLM program alone. That is not what we are offering to US or to international students.

Posted by: Pedro A. Malavet | Nov 17, 2016 6:26:09 AM

Thanks, Pedro. I don't think the New York bar is harder than average. Indeed, a passing UBE score is 266, squarely average among passing scores. And I agree the value may differ for individuals, but I assume if someone is taking the bar in the first place, she is hoping to pass it.

Posted by: Derek Muller | Nov 16, 2016 12:41:49 PM

I would add two caveats to the reasonable questions and concerns that are raised here, based on my experience as the director of an LLM program for lawyers whose first degree in law was earned outside the United States:

First, they tend to take the New York Bar, as noted above, which is substantially harder than the bar exams of many other states.

Second, even those LLM students who opt to take the New York, or another US bar examination for which they are allowed to sit, generally base their decision on the value of the degree on its utility to them upon return to their home country to practice. The possibility of passing the New York bar may therefore be viewed from the perspective of the opportunity to (a) be admitted to practice in the US, again after returning home; and (b) lastly, the possibility of seeking employment in the U.S.

So, the statistics may not tell the entire story about the students' motivation to seek a US LLM.

I suppose that in simpler terms I would say that this group of graduates is very different from those with the JD degree and their motivations are likely quite different.

Posted by: Pedro A. Malavet | Nov 16, 2016 10:20:23 AM

Fascinating analysis, and thank you, Derek, for taking the time to put this together. I suspect that the trends/incentives would change markedly if the non-JD students' bar pass rates began to be reported as a component of a school's total bar pass rate -- much like the number of students in part-time evening divisions fell markedly once the ABA began including their entering credentials in law schools' overall credentials. You get what you measure.

Posted by: Rick Bales | Nov 16, 2016 7:09:50 AM