Paul L. Caron

Monday, March 27, 2017

UC-Hastings Dean:  The California Bar Exam Flunks Too Many Law School Graduates

California Bar ExamLos Angeles Times op-ed: The California Bar Exam Flunks Too Many Law School Graduates, by David L. Faigman (Dean, UC-Hastings):

Graduates who fail face [the bar exam] losing jobs already started, not getting jobs that were promised, debt, embarrassment and more debt. Simply taking the exam again costs more than $700, and add to that the cost of further bar review classes, living expenses in the meantime and income lost. All told, thousands more dollars may be piled onto law school debt that is increasingly well above $100,000. ...

Given the stakes for the individual law graduate, as well as the state’s obligation to ensure that those given a license to practice law are qualified, one would think the state bar, which administers the test, would have sound reasons for how it sets the line — the “cut score” — between passing and failing. If you thought that about California, you would be mistaken.

The California bar exam has historically had the highest cut score of any state, consistently resulting in the nation’s lowest pass rates. In July 2016, California’s pass rate reached a record low 62% for graduates of American Bar Assn.-accredited law schools. New York’s was 83%. Although California has always had low pass rates, the July results caused an outcry. It finally dawned on those of us who run law schools in the state to ask why.

Was New York truly allowing unqualified lawyers to practice? Did the State Bar of California have research indicating that its cut score of 144 was more protective of the public than New York’s 133? Twenty (out of 21) deans of ABA-accredited law schools in California wrote in protest to the state Supreme Court, which has authority over the bar. Several of us later testified on the subject at a hearing before the California Assembly’s Judiciary Committee, where Elizabeth Rindskopf Parker, the state bar’s executive director, told the committee that “there is no good answer” for why the California cut score is so high. ...

At the Judiciary Committee hearing, a representative of the California bar was asked how many exam takers fell between New York’s passing score and California’s. The answer was 1,789. That is, there were 1,789 individuals who would have begun their careers in New York but who have instead had their lives profoundly disrupted in California.

The deans’ letter asked the state Supreme Court to require a more rational cut score. We suggested using either a comparable state’s score, such as New York’s 133, or the median of all state scores in the country, which is 135. Neither may be a perfect cut score for California; we do need to study the matter. But in the meantime, California should not continue to be such an extreme outlier.

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So much for state's rights, eh? And of course the notion that every bar exam should be of equal difficulty because every state's laws are basically the same is facially stupid. What to think of Delaware and its chancery courts, then? Or Louisiana and its civil code? And you're right; obviously there are just as many VC deals of outrageous complexity in Gulfport as in Silicon Valley. Totally.

Say, shouldn't you be in the Infilaw thread banging on about how unfair it is that Arizona didn't pass 100% of Arizona Summit grads and how it is like totally unconstitutional to deny any law school unlimited GradPLUS loans?

Posted by: Unemployed Northeastern | Mar 30, 2017 11:47:40 AM

There's no good reason why it should be harder to pass the bar exam in California than in New York or Washington D.C. or Illinois or Texas or Florida or Massachusetts.

It's not like California law is any more challenging or the deals are any larger or more complex.

And there's no evidence that the harder bar exam has improved the quality of legal services in California.

Posted by: Protectionism | Mar 28, 2017 10:57:01 AM

Another point: don't these Deans understand that logically some state has to have the highest bar passage threshold [And it isn't even California, its Delaware] ? It makes a great deal of sense that California has one of the hardest pass thresholds because there are thousands of candidates from other States that seek to practice there (in addition to the dozen or so ABA accredited schools. They are awash in prospective lawyers, and have the ability to be selective. However, the Deans don't just want a small downward adjustment, they want to put the California threshold BELOW THE AVERAGE OF ALL STATES! If they can't get that, they want it to be at the average. So apparently is it unfair for the California Supreme Court to even set a threshold that is on the higher end of the spectrum.

Once again, law school deans have disgraced themselves.

Posted by: JM | Mar 28, 2017 6:10:37 AM

Perhaps the problem isnt failure to pass the bar but the schools failing to admit qualified students. California is known to admit students based upon race rather than qualifications.

Posted by: inland | Mar 28, 2017 5:27:29 AM

Said another way, UC-Hastings Law School doesn't prepare enough of its students to pass the California Bar Exam.

Posted by: ruralcounsel | Mar 28, 2017 4:22:11 AM

I side with the CA State Bar on this. Practicing law is a privilege not a right. And the state has every right to demand that those seeking to exercise the privilege of practicing law know the law well enough. Some law schools need a swift kick in the head. If you do not educate your students such that they can practice law, they will be REJECTED as lacking sufficient competence. Also, a number of commentators like to trot out LSAT and GPA statistics, but they fail to explain how graduates of Harvard Law and Yale Law flunk the CA bar every year. LSAT and GPA are not the answer to everything. You need a well-tailored required curriculum and permanent faculty willing and able to teach the necessary subject matter. With that, a law school can accomplish a great deal, even with students lower down on the LSAT/GPA continuum. The podium is a place of work. Period.

Posted by: Veritas | Mar 28, 2017 12:35:05 AM

With all due respect to Dean Faigman, I must point out that the relevant comparison regarding the Class of 2016's performance on the California Bar exam is not the one between the California results and those of other states, as he asserts. The relevant comparison is the one between California's July 2016 results and California's results from earlier years. And the trend there is clearly downward.

To make the analysis more interesting, let's also look at the entering classes' LSAT scores over time. Here, too, the trend is downward.

Perhaps the California Bar ought to investigate these parallel downward trends to see whether the correlation contains a causal element, or is just pure coincidence. If the Cali Bar does not investigate, maybe Uncle Sam should step in, on behalf of the taxpayers funding this mess.

I think it comes down to either the law schools are not teaching the right stuff any more, or they are bringing in progressively weaker entering classes that are unable to benefit from the instruction.

Posted by: Old Ruster | Mar 27, 2017 6:09:04 PM

I'll just leave this here for context:

UC Hastings Fall 2010 admissions stats:

160 / 164 / 165 LSAT splits, 3.45 / 3.6 / 3.71 GPA splits.

And the Fall 2016 stats, which largely mirror the Fall 2013 stats of the most recent bar exam-taking cohort:

155 / 159 / 161 LSAT splits, 3.18 / 3.45 / 3.64 GPA splits

Hey, here's an idea: why don't you improve your class quality instead of expecting the public to accept a lower threshold?

Posted by: Unemployed Northeastern | Mar 27, 2017 4:00:15 PM

Check out the comments section (sort by "best") and get a view of what the public thinks about lowering the bar passage standard in order to bail out law professors.

Posted by: JM | Mar 27, 2017 6:46:08 AM