Author Archives: Michael Froomkin

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.

Previous posts:

• ABA Proposes Bar Pass Rate Standard
• More on Proposed ABA Standard on Bar Pass Rates

Previous post: ABA Proposes Bar Pass Rate Standard

I've been sent the following data on Florida pass rates:

July 06 — 75.1%
July 05 — 70.5%
July 04 — 74.1%
July 03 — 75.8%
July 02 — 78.2%

Note that the Florida Supreme Court raised the minimum score needed to pass the Florida bar in 2003 and again in 2004.

Based on this very limited data set, the idea that the annual pass rate in Florida, given the new higher score needed to pass, is likely in the 70-75% range seems reasonable.

I've also found a treasure trove of statistical data on national bar pass rates in the LSAC National Longitudinal Bar Passage Study (NLBPS) which has a useful “executive summary” from which I learned that (at least before the national move in the last decade to raise the minimum bar pass score), most people who persevered eventually passed the bar:

• The eventual bar passage rate for all study participants was 94.8 percent (21,886 of 23,086).
• The eventual passage rate for all study participants of color was 84.7 percent (2950 of 3482).
• The eventual passage rates for racial and ethnic groups were: American Indian, 82.2 percent (88 of 107); Asian American, 91.9 percent (883 of 961); black, 77.6 percent (1062 of 1368); Mexican American, 88.4 percent (352 of 398); Puerto Rican, 79.7 percent (102 of 128); Hispanic, 89.0 percent (463 of 520), white, 96.7 percent (18,664 of 19,285); and other, 91.5 percent (292 of 319).
• Among those examinees of color who eventually passed, between 94 and 97 percent passed after one or two attempts and 99 percent passed by the third attempt.
• The eventual pass rates increased substantially over first-time rates for all examinees.
• There were no differences in bar passage rates between men and women.

…

• Both law school grade-point average (LGPA) and Law School Admission Test (LSAT) score were the strongest predictors of bar examination passage for all groups studied.
• A demographic profile that could distinguish first-time passing examinees from eventual-passing or never-passing examinees did not emerge from these data.
• Although students of color entered law school with academic credentials, as measured by UGPA and LSAT scores, that were significantly lower than those of white students, their eventual bar passage rates justified admission practices that look beyond those measures.

The importance of this data in the context of the proposed rule is that the data suggest that the second prong of the ABA standards may be much more forgiving than I initially thought: I'm told there may be as many as 20 schools in the US that are in danger of failing the first test (3 years within 10% of state's average pass rate), but it does seem that many of these schools might nonetheless make it on the alternate test, which requires 80% of graduates pass within three tries in three years.

To the extent that this second rule creates an incentive for the schools to help first-time-failers to pass later, that is good for those students — although whether it is also good for their future clients is a matter for debate, one that would turn in part on what we think the bar exam measures.

One also has to wonder, if indeed the second prong of this rule will protect all, or almost all, existing law schools, will the U.S. Department of Education accept it as a meaningful standard?

Pushed by the U.S. Department of Education to demonstrate that it has standards that actually mean something — without which it risks losing the privilege of accrediting law schools — the American Bar Association (ABA) has proposed bright-line bar pass rate standards.

The short version is in a press release, ABA Legal Education Section Publishes Proposed Interpretation of Bar Passage Standard for Approval of Law Schools, or you could go straight to the full text of proposed new interpretation 301-6.

Here's the key part of the summary:

For established schools undergoing periodic review, the proposed interpretation offers two alternatives to satisfy the standard.

Under the first option, a school would have to show that in three or more of the most recent five years, in the jurisdiction in which the largest proportion of the school's graduates take the bar exam for the first time, they pass the exam above, at or no more than 10 points below the first-time bar passage rates for graduates of ABA-approved law schools taking the bar examination in that jurisdiction during the relevant year. For schools from which more than 20 percent of graduates take their first bar examination in a jurisdiction other than the primary one, the schools also would be required to demonstrate that at least 70 percent of those students passed their bar examination over the two most recent bar exams.

Schools unable to satisfy the first alternative still could comply by demonstrating that 80 percent of all their graduates who take a bar examination anywhere in the country pass a bar examination within three sittings of the exam within three years of graduation.

My very preliminary thoughts on this proposal is that the new rules are (1) slightly odd, (2) will undoubtedly make it harder for law schools to take risks on students and risk creating other unfortunate incentives, (3) threaten to put some schools out of business, and (4) are certain to generate enormous controversy.

I flesh out each of these assertions below. I'd be very grateful for comments and corrections.

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