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Wednesday, December 12, 2018

California Chief Justice: Bar Exam Results Are 'Frightening', But There Are No Plans To Lower The Cut Score

California Bar ExamThe Recorder, 'Frightening' Bar Exam Results, but No Plans to Lower Passing Score: California Chief Justice:

Chief Justice Tani Cantil-Sakauye said Tuesday the state Supreme Court has no immediate plans to reconsider the passing score on the California bar exam despite a historically low success rate on the July test.

Fielding questions at her annual meeting with reporters in her San Francisco chambers, Cantil-Sakauye said the high court will wait to see the conclusions of two related studies, one assessing California law school students and the other considering what skills contemporary lawyers need and how those traits can be tested, before considering any action.

The pass rate on the July 2018 exam plunged to 40.7 percent, marking a 67-year low for the summer test. ...

In an op-ed last week in the Los Angeles Times, the deans of three California law schools called on the state bar, the Legislature and the state Supreme Court to lower the cut score. ...

https://taxprof.typepad.com/taxprof_blog/2018/12/california-chief-justice-bar-exam-results-are-frightening-but-there-no-plans-to-lower-cut-score.html

Legal Education | Permalink

Comments

Maybe I’m missing something, but why aren’t the Legislature, the bar, and the students calling on the law schools to raise bar takers’ scores? It’s not a problem with the test, it’s a problem of either incapable students admitted or low value added by the schools.

Posted by: Anon | Dec 12, 2018 4:30:40 AM

The question is is this a problem with the exam, or a problem with the competency of the people taking the exam? That determines how you solve it.

Posted by: ruralcounsel | Dec 12, 2018 9:27:31 AM

Good. The only variable that has changed over the years is the admissions standards of law schools. Restore the historic academic prowess of law school student bodies, and if the bar pass rates are still low, then we can talk about the cut rate.

Posted by: Unemployed Northeastern | Dec 12, 2018 10:45:31 AM

Unemployed Northeastern, please provide your data that LSAT/GPA is the only variable that has changed regarding bar passage. The NCBE is a super secret organization that drafts the MBE and the NCBE will not provide researchers any data in order to provide independent review of their methodology and the validity of their tests,. The NCBE just says '"trust us", we are not the problem." State Supreme Courts and bar associations that rely on the NCBE data should require independent review of their testing mechanisms. There are variables beyond LSAT/GPA that have not yet been investigated.

Posted by: Mythbuster | Dec 12, 2018 5:49:13 PM

The fewer the practicing lawyers in California, the more they can collect in fees from their clients, so perhaps the bar association will lobby to keep the cutting score high, and blame the problem on poor student and poor school performance.

Posted by: J Pederson | Dec 13, 2018 4:58:48 AM

The logical thing would be to simply eliminate the bar exam and admit everyone or at least everyone who graduates from an accredited law school.

Posted by: Skip | Dec 13, 2018 5:26:58 AM

ruralcounsel - my experience leads me to believe it is a problem with the exam. My 2002 MBE score = 155. In 2015, after having thousands of satisfied (and some unsatisfied). clients, my MBE score dropped to 144. I studied exactly the same.

In 2002 you could see the trick questions. In 2015, everything was a trick. Answering questions was painful; you had to decide what level of inference one to make. Should I make the inferences a law school student would make, an experienced attorney would make or a MBE test developer would make? I would see three answers that were plausible and sometimes all four, yet all required something additional to be true. It is truly an awful exam that does not test competency. But rather, what you are willing to do to pass. Getting an Aderall script now seems stupid not to do. It would be nice if that was the worse exam takers were ingesting. But it can get much worse than that. Hint getting an Aderall script is expensive. Lots of street drugs that will keep you up and alert for 48 hours or more aren't. When you have $200,000 in student debt and three years of your life on the line and are dead broke, people do what they need to do.

From the best I was able to determine, the last two people to run the MBE have not taken a bar exam. They waived in as attorneys in Wisconsin, which is allowed if you go to an accredited law school in Wisconsin. Kind of odd the people who are gatekeepers never went through the gate themselves.

Reminds me of the end of Stalag 17. Who put Price in charge of security? And who made people who never took let alone pass a bar exam the High Priestesses of the bar exam?

My feeling is that these impossible test serves two functions:
• To build up the egos of established players in the guild
• To protect the turf of established players in the guild.

Posted by: Anthony E. Parent, Esq | Dec 13, 2018 5:32:03 AM

The idea of lowering the cut rate so more will pass is ridiculous. Every profession has standards that must/should be met to insure competency. Would you want to be operated on by a surgeon who had to have the standard competency bar lowered in order for him/her to pass? I sure wouldn't. The students failing the bar exam need to study more, obviously. They chose this specific profession. If it means that much to them, they will do the work to achieve a passing grade. I do not feel sorry for them in the least, nor should the cut rate be lowered to accommodate those who lack the knowledge that they should possess in order to perform their duties as attorneys.

Posted by: AverageJo8777 | Dec 13, 2018 7:31:42 AM

*Sorry I meant "cut score" rather than "cut rate" above.

Posted by: AverageJo8777 | Dec 13, 2018 7:33:16 AM

Lack of objective criteria for admission to and graduation from law schools?

Posted by: JimB | Dec 13, 2018 10:35:13 AM

The logical thing would be to simply shut down law schools. They are spectacularly bad at their primary mission: producing quality, professional lawyers. When 40.7% is the best you can do, you should be looking for a new line of work.

Posted by: Tom | Dec 13, 2018 12:08:57 PM

The California cut score is a problem independent of the allegation of a decline in the "quality" of students going to law school.

The sole purpose of the cut score is consumer protection. That is the bar's mandate and in the discussions of the issue had last year that issue was raised frequently by those who opposed lowering the score.

Yet, the evidence that the current level is required to insure consumer protection is weak or non-existent. As many critics have pointed out, there is no evidence that New York’s lower cut score has led to serious problems for consumers of legal services.

But, there is evidence that the substantially higher cut score in California harms those attempting to enter the profession, particularly law school graduates of color. The final pass rate is much higher than the first-time pass rate – meaning those who fail the first time can eventually qualify for admission. There is a higher percentage of minority JD’s in that repeater category and they incur the substantial cost associated with being a repeat taker.

The decline in the LSAT of entering JD’s is a separate problem. It suggests only that demand for the JD among students more capable on the LSAT has declined. There is no basis to conclude from that possible explanation that there is a decline in the quality of legal services being provided. There is no study I am aware of showing any correlation between LSAT score and quality of legal services.

One might credibly claim that the skills required to be a successful Supreme Court litigator are correlated with high LSAT scores and that might explain why, possibly, a higher number of such litigators graduate from Stanford than any other law school in the state. But there are certainly many other valuable legal skills that do not require such a correlation.

It is not the fault of law schools that demand from high LSAT score students for a JD declined after the financial crisis. Law schools do not control the macroeconomy. Demand dropped quite suddenly – not in reaction to anything that had changed in legal education or the practice of law. No, it was a reaction to the collapse of the economy.

There is some evidence that demand from those higher LSAT students has, in fact, improved. Certainly, Stanford is not too concerned about demand for its JD. And as far as I can tell most other ABA law schools in California are now once again – after a substantial amount of restructuring and innovation – returning to balanced accounts.

Posted by: Steve Diamond | Dec 13, 2018 1:00:35 PM

@Mythbuster,

The cut rate has been the same since dinosaurs walked the earth. It's the test-taking ability of recent CA law students that has declined. Occam's Razor suffices here.

@Steve,

"The decline in the LSAT of entering JD’s is a separate problem. It suggests only that demand for the JD among students more capable on the LSAT has declined. There is no basis to conclude from that possible explanation that there is a decline in the quality of legal services being provided. There is no study I am aware of showing any correlation between LSAT score and quality of legal services. "

Yeah! How dare anyone suggest that poor performance on one standardized test (LSAT) can predict poor performance on a much more difficult standardized test (MBE)!!! What an outrageous notion!

Oh, and a few years ago The Faculty Lounge found a awfully high correlation between LSAT score and the likelihood of actually having a full-time job as an attorney after graduation so yeah, LSAT score do rather predict quality of legal services in a way.

"It is not the fault of law schools that demand from high LSAT score students for a JD declined after the financial crisis."

Law schools were enrolling everyone with a pulse and enticing them with brazenly misleading, if not legally fraudulent, job statistics and salaries. This was covered by sundry investigations, reports, and studies over the last decade. There's plenty of blood on law schools' hands.

"One might credibly claim that the skills required to be a successful Supreme Court litigator are correlated with high LSAT scores and that might explain why, possibly, a higher number of such litigators graduate from Stanford than any other law school in the state. "

Or - and bear with me here - maybe it's because law is a circle-jerk of pedigree, most successful SCOTUS litigators were SCOTUS clerks*

*A Reuters investigation a few years ago found that just a few dozen of the tens of thousands of lawyers who appealed to SCOTUS over a ten year period accounted for nearly half the cases heard. Surprise! Nearly all of those lawyers were ex-clerks or had high-level roles in the SG's office; most had ongoing social relationships with their justice. And of course aside from Thomas there are only about six or eight *acceptable* law schools from which one can become a SCOTUS clerk. Geez, it almost as SCOTUS litigation is primarily a restrictive little club of elite insiders and not an actual meritocracy...

"And as far as I can tell most other ABA law schools in California are now once again – after a substantial amount of restructuring and innovation – returning to balanced accounts."

How far did you look? At Santa Clara Law, where you work, enrollment is still down 1/3 since 2011 while the median LSAT dropped 160 from to 154 over that period. That's a drop from the 80th percentile LSAT score to the 59th percentile LSAT score.

Posted by: Unemployed Northeastern | Dec 13, 2018 10:23:43 PM

Mr. Parent: Perhaps that change in your MBE score from 2002 to 2015 is merely within your standard deviation of performance. You were a little luckier in 2002 is all. Or your work experience made you more aware of ambiguity by 2015, making the exam harder FOR YOU. Or your skill set is deteriorating as you age.

Anyway, your anecdotal and personal experience is not a particularly good indicator of where the problem lies.

Posted by: ruralcounsel | Dec 14, 2018 3:52:40 AM

As someone who passed two bar exams (1st time both), I can confirm that bar exam success relates pretty much entirely to an ability to pass the bar exam, and hardly at all to the ability to be a good attorney. I was a mediocre attorney at best, but boy could I cram a lot of minutiae into my brain for short periods of time and then apply that knowledge to silly fact patterns contrived by test makers (and to intentionally ambiguous multiple choice questions). In what area of legal practice is the ability to answer multiple choice questions, and/or the ability to memorize reams of black letter law an important quality for an attorney to be good at their field?

The bar exam is moronic, making California's adherence to a high cut score even more moronic.

Posted by: Anonymous | Dec 14, 2018 7:37:41 AM

UNE:

I said that there is no evidence showing a correlation between lower LSAT and quality of legal services. You then suggest there is a correlation between LSAT and MBE outcomes.

The latter is true and I have never said otherwise. The former you in essence confirm.

I note that law schools are in a better fiscal position than they were a few years ago and you say that LSAT medians have fallen. Huh?

Please wake me when you can read, when you stop with the ad hominem attacks and learn what a non-sequitur is.

Posted by: Steve Diamond | Dec 14, 2018 4:56:49 PM

I noted that people with low LSAT scores are less likely to practice law at all, which rather impacts the quality of legal services they deliver, don't you think? But I will agree that where one went to law school doesn’t much impact the quality of legal services insofar as that most law schools still don’t teach the first thing about how to deliver legal services, as we all know. Langdell thought such vocational training to be déclassé and so 150 years later law schools still slavishly follow his diktats.

"I note that law schools are in a better fiscal position than they were a few years ago and you say that LSAT medians have fallen. Huh? "

Let's see some cites, Steve. I mean, Taxprof has recently covered how Northwestern Law just laid off a bunch of staffers to plug a deficit and the University of Minnesota Law's losses are running in the eight figure realm somewhere now, but I haven't seen anything about recovering law school finances. How about Santa Clara? Let’s go back to those fun Form 509 disclosures… In 2011 y’all had 983 students, and 46% of them received a median tuition discount of $10k/year. In 2018 you have only 698 students and 44% receive a median discount of $25k/year. That’s not exactly the picture of financial health.

“Please wake me when you can read”

OK, btraven, whatever.

Posted by: Unemployed Northeastern | Dec 14, 2018 11:02:50 PM

Two separate institutions have failed today’s class of law students and recent graduates – the state bars and the legal academy. The state bars are run by graduates of lower ranked law schools. This cohort performs less complex and easier legal tasks that serve the middle class and poor, such as criminal defense, wills, property closings, and landlord-tenant disputes. There are a lot of middle class and poor clients looking for lawyers to meet their needs. But this cohort of lawyers and the state bars want to limit competition and drive up revenues for their services. As a consequence, state bars have raised the cut scores to increase the bar failure rates and protect their monopoly.

Law schools are operated by and employ lawyers with outstanding skills. Professors and deans typically went to the best law schools, clerked for Federal judges, and worked for the most prestigious firms. The deans and professors gave up their careers to train new lawyers and better the legal profession. They have failed to recognize that the state bars do not have the same idealistic goals. Moreover, despite years of high bar passage rates teaching blackletter law, the law schools adopted curriculum changes in response to a small group of loud critics. Now law students spend less time learning blackletter law from outstanding law professors and more time learning “practice ready” skills from mediocre attorneys. No wonder bar passage rates have dramatically plunged.

UNE makes the case for the need for more outstanding lawyers in the legal academy. Typically, the Supreme Court only hears cases brought by former clerks. All the more reason for law schools to hire former clerks to teach students the arguments needed to bring a case before the Supreme Court.

Posted by: Anticompetitive | Dec 16, 2018 8:17:51 AM

"Law schools are operated by and employ lawyers with outstanding skills."

Nay, law schools hire fondlings who probably have never come close to handling a legal matter without four levels of senior lawyers between them and the client - that is, when they aren't busy hiring PhD-JDs who haven't spent one day using their bar licenses (if they have any; one can note that people like the Miltonist Stanley Fish have managed to teach at Yale Law without having gone to law school!). One year proofreading contracts in a sub-basement of a Vault 100 firm does not an outstanding lawyer make. Sorry to give your inferiority complex the feels, but it's true.

Posted by: Unemployed Northeastern | Dec 16, 2018 4:53:40 PM