They Don't Make the Cut
When nearly a third of a law school class fails to pass the bar exam, it can't be chalked up to first time jitters or a few students having a real bad day (or two). An alarm has to go off that the school, and more precisely, its professoriate, has failed. Somehow, these students attended, and paid for, three years of law school and were incapable of passing the bar in massive numbers.
Law professors, you failed. The students may not have shined, but this isn't their fault. It's yours. It is impossible to have such a large percentage of a law school class failing without it being the fault of the faculty. And lest we point fingers at NYLS alone, there are plenty of exceptionally crappy numbers here.
Frankly, I'm appalled that the first three schools on the list, admired by all, didn't have 99% pass rates. The bar exam just isn't that hard to pass. I'd cut Columbia a break at five students failing the exam just because their brains froze. When the number is three times that, it's shocking. That the state average is 85% is alarming, given all these students having spent all this time, all this money, with the single-minded goal of passing the bar exam, and yet 15% failed.
Where are the mea culpas? Are lawprofs rending their hairshirts in penitence? Get real.
At PrawfsBlawg, Dan Rodriguez supports the creation of the "baby bar,"
Declaration against interest from an institutional standpoint as dean, but I am strongly drawn to Sam Estreicher's "back to the future" suggestion of an option for students sitting for the bar after two years. Such a system, if adopted, would respond in some meaningful way to student debt issues, allowing the financially burdened student to postpone — or, in some instances, avoid entirely — the third year and the corresponding tuition costs.
A fabulous idea, with but one little kink. If they can't pass the bar after three years of law school, how will they pass after two? Of course, most law students take a bar exam prep course (by a private provider, paid for separately) because they can't remember enough to pass based on law school alone.
Some will argue that the bar exam is meaningless anyway, reflecting little of the actual practice of law and expecting students intent on practicing in a specific niche to know obscure details of the law from A to Z which can be easily looked up if needed.
There is a little bit of merit to this, but the fact is that having completed three years of law school, students ought to possess a sufficiently broad swath of legal knowledge to breeze through the exam. It's not that hard, and more importantly, we are licensed as generalists and expected to have a basic knowledge of the law. All the law, even when basic courses like evidence are no longer required. It's just not that much to expect of lawyers.
But it requires lawprofs to teach students. Teaching. It's a dirty word in the Academy, denigrated by association with trade schools that offer refrigeration repair. Except it's needed to pass the bar exam. Scholar, unfortunately, consider the notion quaint and beneath their dignity. They exist to think big thoughts, and show up in class only because someone puts a gun to their heads.
In a response to Brian Tamanaha's book, Failing Law Schools, which lawprof Jay Sterling Silver cleverly describes as the "Motel 6 Model of Legal Education," he offers his view of society's need for legal scholars:
As a wise colleague pointed out to me not long ago, “The legal professoriate develops suggestions for law in the common interest that are not produced by the powerful lobbies generating laws today. If we are reduced to teaching automatons, we would leave the field to those who buy their spokespersons.” Stripping law faculties of the time to contemplate the weaknesses of the law and the injustices of the legal system, and discarding the tenure necessary to instill meaning in the words “academic freedom,” reduces a vital social resource to a cog in the current structures of power. Under the guise of fiscal management, law professors willing to take on the wielders of power in the public and private sectors would be silenced.
Obviously, no scholar wants to be reduced to a "teaching automaton," especially given how society so desperately needs their brilliance to "contemplate the weaknesses of the law and the injustices of the legal system." Orin Kerr wasn't impressed with the argument, that maintaining "the status quo is the best possible world requires more than just patting ourselves on the back about how society is very lucky to have us." I think Orin was far too kind.
Think big thoughts on your own time, if that's what you think you're doing. Society isn't paying you to ponder the legal universe, but law students are paying you to teach them how to be lawyers. You're failing. And, much as I hate to be mean, your big thoughts about injustice are, with rare exceptions, puny and worthless.
Much of the focus is on the dearth of jobs for law school graduates, and it's a monumental problem. But if the grads can't even get in the game because they can't pass the bar exam after law school in such huge numbers, then this failing falls on the legal academy. Not a third. Not a fifth. Frankly, even a tenth of a class is far too much. If the students don't have the chops, then hand them a dime and stop taking their government-backed tuition payment, but do not spew them out the back of your law school incapable of passing the bar.
No amount of self-congratulatory scholarly baloney can conceal the inability to produce students capable of jumping the first hurdle of becoming a lawyer. This cannot happen, and I blame the law professors.