Other Perspectives on the ABA’s Proposed Bar Pass Standard

Here are some other views of the ABA's proposal on bar pass rates:

Scrivener's Error:

  • Initially, note the irony that the Bush Administration's Department of Education is acting in a way to take more power away from states in two areas “traditionally” committed to states — education and regulation of the legal profession. Ironically, this particular effort is yet another argument for national, not state, regulation of attorneys; if the supposed “state's rights” maroons and ideologues who actually make policy in this administration think it important to establish more measurable national standards…
  • Under the proposed rubric, almost no law school in either California or Washington State could qualify under the second standard, because so many of the graduates of those schools take the bar in those states… which have pass rates of around 50%. Conversely, it's extremely unlikely that some states with notoriously high bar passage rates will help. Then there's the “Wisconsin issue” — graduates of the University of Wisconsins and Marquette law schools are exempt from their own state's bar exam.
  • Well over 85% of the bar exam is drawn from material covered in the mandated first-year courses. Why, then, hasn't the legal profession followed the medical profession's lead and moved to a national exam covering that material shortly after it is actually studied, similar to the two-part medical boards? I suppose part of it is that most law schools are revenue-positive, meaning that they want students to continue.

Ultimately, though, what I find disturbing … [is the assumption that] the bar exam, or bar exam passage rates, measure a damned thing about attorney competence. (Unfortunately, the traditional law-school exam format isn't much better… but that's for another time.) And that's for a very simple reason: With very, very rare exceptions — almost all of which concern either criminal law or trial practice — a lawyer's emphasis cannot be on coming up with “the answer” right now, but with persuasive advice that meets all of a client's needs.

For example, assume that a client comes to an attorney asking whether there's a way to get out of a particular contract (not so hypothetically, an especially abusive vanity publishing contract). What is ultimately in the client's best interest? The bar-exam answer is to look at the contract, figure out what it says and whether it is theoretically enforceable, and give essentially a multiple-choice response. That, however, ignores the relative financial and emotional situations of the parties; the power of potential publicity; jurisdiction; choice of law; counterclaims; and a wide variety of other considerations. No bar exam question ever even considers the possibility of an “efficient breach,” and that's just within the contract itself.

My spouse:

Rhode Island only has one law school, so that unless there are a very large number of very successful out-of-state test takers, Roger Williams University defines the average.

Bill Henderson has a lot of interesting things to say, among them:

  • There are a lot of potential problems here. Foremost is the huge variation in bar passage standards from state to state. In every jurisdiction, the ostensible purpose of the bar exam is to screen for “minimal competency” in legal knowledge. But the wide range in MBE cut scores and “equating” practices (which convert essay and MPT scores to the same scale and distribution as the MBE) has been aptly described by Gary Rosin (South Texas Law) as “federalism run amok.”
  • … while criterion #1 will cause a lot of panic, most schools will satisfy the “80% over three attempts” rule. [citations] Yet, by the third try, who deserves credit—the graduating law school or the review course?
  • Finally, any new bar passage standard for accreditation needs to be accompanied by serious research on which law schools, controlling for entering credentials, are associated with the largest gains in bar exam performance. There are some tricky methodological questions here—e.g., if the MBE score is the dependent variable, using a fixed effects model to deal with differences in cut score—but we certainly have the ability to solve them.

Once we know what curriculum, teaching methods, and (let's not kid ourselves) the attrition policies that produce the best bar results, legal educators can have an intelligent discussion on how to proceed. This might include designing a better bar exam, which has not significantly changed over the last three decades.

SW Virginia Blog notes that Regents University Law school might be one of the school that has trouble with the first prong of the proposed standard.

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