They Don’t Make the Cut

The New York Board of Bar Examiners  released the passage rate numbers by law school for the July, 2012, bar exam.  While discussion of what becomes of debt-laden students when there are no jobs to be had are left to the lions of the legal academy, who are busily arguing about edge tweaks, the chart reveals something far more disturbing and real.

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.

47 comments on “They Don’t Make the Cut

  1. Konrad

    Powerful lobbies generating laws today:

    1. Illuminati (The)
    2. Freemasons
    3. Faceless multi-national corporations
    4. Friends of Cobra Commander
    5. Congress

  2. SHG

    The headband on that tin foil hate might need some adjusting.  Everybody knows the Freemasons are number 1.

  3. Dr. Sigmund Droid

    My opinion?? Law school is a complete waste of time and money and needs to be destroyed by fire and brimstone, left as a burning waste of salt and sulfur —nothing planted, nothing sprouting, no vegetation growing on it . . .

    With more than a morbid curiosity about many aspects of the legal system and having recommended such extreme measures for law school reform (see above), what, pray tell, might be a replacement system??

    Suggestion #1: You should be able to take the bar exam, whether or not you went to law school. Period. Either you know enough to pass or you don’t. And since it doesn’t appear as though law school always adequately prepares a student to pass the exam and/or actually practice law in the real world, law school seems to be of low value and not necessary, given other possible options.

    Suggestion #2: Your score on the exam should be more meaningful to your potential employer than where you did or did not go to law school or even if you went at all.

    Suggestion #3: Bring back the legal apprenticeship model in a big way to give potential attorneys real world skills prior to taking the bar, though even apprenticeship shouldn’t be a prerequisite to sitting for the exam.

    Suggestion #4: Who you apprenticed under and how you performed as a legal apprentice should be the most important considerations to your potential employers or clients, coupled with an evaluation of what real and practical legal skills you bring to the fight; these attributes even more so than your bar exam grade and the law school you did or did not go to.

    Suggestion #5: So how all this comes together in my mind is as follows: Sh!t-can law school completely – yes, the dupes can still go and waste time and money there, but it’s all on them. Instead, carve out 18 months of your life. Go find some great and experienced attorney(s) that you can successfully apprentice under. Work 18 months for FREE for them – 12 hours per day, with 8 hours of work per day for THEM and 4 hours of legal study for you interspersed within that time. During the last six months of your apprenticeship, supplement with take a top bar exam prep course. After passing the bar and now having apprenticed in the real world for 18 months under a skilled attorney, you’re going to be more ready to practice law than most of the students being disgorged from law school, of that, I’m pretty sure . . . All this in half the time of traditional law school while expending almost no out-of-pocket money . . .

  4. SHG

    Funny you should raise the apprenticeship approach, which has some merit as an alternative to law school. I used to have law student interns in my office. Over time, things changed. In the early years, they would watch and listen, waiting until after a client meeting or court appearance to ask questions, and then asking incisive questions. At time went on, they started asking questions during meetings and court, interrupting me and the proceedings. They asked a lot of questions, often questions that would be answered if they paid closer attention and kept their mouths shut.

    Eventually, their interruptions went beyond stupid questions (yes, there is such a thing as a stupid question) to inserting their opinion, apparently believing that their opinion should be valued despite their cluelessness. I stopped taking on interns. It was too much of a burden.  Apprenticeship? Nah. Not for me.

  5. Mirriam Seddiq

    I haven’t been following all of this, but I am sad that my law school has such a low bar pass rate. I mean, at this rate why is anyone going there if they can’t even help you pass the bar?

  6. SHG

    Not nearly as sad as those students who didn’t pass. Maybe if more lawyers followed “all of this” and took some greater responsibility for what law schools and lawprofs are doing, these students (and you) wouldn’t be so sad.

  7. LTMC

    As a debtor-in-residence at Albany Law, I’ve been told to take heart because bar passage correlates strongly with class rank. Much like most of my peers, however, I have no job lined up—though I do have a nice pile of rejection letters. JAG is looking better and better each day.

  8. SHG

    What a bullshit excuse. This isn’t a random sampling of the population, but law students. They are supposed to be a fairly select group, all of whom (including the bottom of the class) fully capable of learning the law and passing the bar.  If the school believes that the bottom 10% isn’t capable, then there are two solutions: tighten admissions standards or give them a collective dime. Do not, however, let them stick it out, collect tuition, then rationalize their inability to pass the bar based on class rank.

  9. Mirriam Seddiq

    I went to albany law as well and we had a pretty great bar pass rate. It’s the reason I went (and they gave me a scholarship) I was not top 10% and the school did jack shit to help me get a job, yet wanted credit when I did get one.

  10. Mirriam Seddiq

    You are probably right. I will add that to my list of things to deal with in this new year. I really don’t know what they are doing. Aren’t they supposed to be teaching students how to pass the bar?

    These captcha’s are a fucking pain in the ass.

  11. Mirriam Seddiq

    Well, I think we are at two different starting points. If they are letting any idiot that can pay or get a loan into law school then that is one thing. I am maybe incorrectly assuming there are still standards for getting into law school. Like, you need to be at least more than marginally intelligent.

  12. SHG


    Aren’t they supposed to be teaching students how to pass the bar?

    As Silver writes (see the post above, the thing with all the letters and spaces all over the place), they’re thinking big thoughts. Teaching isn’t for scholars. Thinking is for scholars.

    And yet, the captchas are a fucking pain in the ass. Nice to have you back.

  13. SHG

    As employment opportunity has dropped, so have admission standards, as they need to reach further down into the barrel to fill the seats. But they are theoretically still selecting students who are more than marginally intelligent and who, if adequately instructed should be able to pass the bar.

    Bear in mind, this is law. It’s not brain surgery.

  14. Mirriam Seddiq

    Right, but if you go to medical school they should teach you about you know, medicine, and how to do your residency so when you are there to do brain surgery you are able to. It isn’t brain surgery, but both have to be taught.

  15. SHG

    And they do at med school, and they aren’t whining about their need to be scholars or expressing their disdain at the nasty work of teaching.

  16. Mirriam Seddiq

    I read all that stuff. Those are nice ideas. I worked at Kindlon’s with a woman who didn’t go to law school and did the apprenticeship program. One of the smartest people I know. I don’t know that not having law school is the answer. Maybe not having a bunch of greedy fucking law schools is the answer?

  17. Miranda

    I’ll defend the bar prep courses. The only way I made it through three years of law school was to take as many criminal-defense oriented classes as possible. I couldn’t have done it if I’d had to take classes on gift and estate tax, or oil and gas law (which is on the bar down here in Texas). If I’d had to take classes on everything on the bar, I also wouldn’t have had time to take any clinics or trial advocacy courses, which provided, for me, the only practical knowledge in law school. The bar prep course was expensive, but worth being able to concentrate on what I wanted to do.

  18. Mirriam Seddiq

    So why do we listen to them? I mean, who put them in charge of anything at all? Teach these kids to pass the bar or shut the fuck up. Should we start a petition or something?

  19. SHG

    Heh. Kinda ironic you want to start a petition, given that you haven’t been following all of this and happened upon it today.

  20. SHG

    How would you have felt if you ended up getting a job doing landlord/tenant? In law school, we have a very definite idea of what we plan to do when we “grow up.” It doesn’t always work out the way we plan, but we’re still lawyers.

  21. Mirriam Seddiq

    I don’t actually want to start a petition and I didn’t just stumble upon it today. I’ve not been reading what the law profs write because unless they are going to convince someone to do something I want them to do their deep thoughts are of no consequence to me. It comes as a surprise of sorts that people who want to be lawyers would consider law school a waste of time. In fact, I haven’t actually taken it seriously at all. I mean, how else are you going to be a lawyer if you don’t pass the bar and you know, get sworn in as a lawyer. I’m slow though, you know that.

  22. SHG

    And that’s how things get to be such a total disaster, as lawyers can’t be bothered and don’t grasp the problem since it’s not their problem, and let others do as they please. 

    You’ve said many times that you always wanted to be a lawyer, and so you became one, and that’s what you wanted to do, and it all worked out. Great. That’s wonderful for you. There’s a whole big profession out there filled with young lawyers in different circumstances for whom it’s not working so well. Not your problem.

  23. Mirriam Seddiq

    Right, because as a general rule I believe things are ‘not my problem.’ It’s cute how you do that to get me riled up. But I suppose I need a better explanation of what the problem is which means I have to take the time to catch up. Give a girl a minute will you.

  24. Miranda

    I thought about that while in law school, but I was worried about the jack-of-all-trades-master-of-none possibility. I guess I would have done my best in a different field, reading up on it, asking for help, until I could have gotten the hell out, and hoping I didn’t do too much damage in the meantime. Not a great outcome. But if I had gotten a more generalized education, I don’t know if I’d been prepared to work in any field. My experience was the only thing law school provided that actually prepared me to do legal work was my criminal trial advocacy class and my clinics (innocence investigations and juvenile delinquency defense). I couldn’t take those and also a class on every subject on the bar. I don’t know what the solution to that is.

  25. SHG

    Yeah, I do that to girls sometimes. I mean, with all the time it takes to get a  decent mani/pedi, who can be bothered keeping up with professional stuff. It’s not like it involves new shoes or anything.

  26. Miranda

    Oh, and my summer internships – that’s where I learned what I wanted to do when I graduated, and learned a lot about how to actually represent people. They were, of course, unpaid, which led to a much higher debt load when I was done.

  27. SHG

    The thing to bear in mind is that for those of us for whom it all worked out pretty well, we dodged a bullet. I planned to practice labor law. It didn’t happen, and here I am instead. I’ve got no complaints, but it definitely wasn’t my plan.

  28. SHG

    I never did an unpaid internship. I had to eat. I worked my way through, including some remarkably unsavory jobs, some very interesting jobs and some paid law jobs. “Unpaid” was not in my vocabulary.

  29. John David Galt

    California does let anyone take the bar exam. I’m not a lawyer, so I can’t judge how (or if) it has affected the quality of our lawyers, but the option is there if you want to come and try it.

  30. John David Galt

    I wonder if affirmative action may be playing a role in this problem?

    (I sympathize with minorities who have trouble getting into/through college, but admitting students who are not prepared for college is a complete waste of time, money, and effort. There is no substitute for K-12 schools that do their jobs for everybody.)

  31. Dr. Sigmund Droid

    Actually, you are wrong on this point.

    You can only take the bar in Cali based on meeting one of the following criteria:

    – Attending a law school accredited by the American Bar Association[14] or approved by the Committee of Bar Examiners[15] and passing the California Bar Examination (bar exam).

    – Study law for at least four years by:

    * Attending a law school authorized by the State of California to award professional degrees that is not accredited by the ABA or approved by the State Bar of California. (including online law schools) and pass the bar exam;

    -or-

    * Participating in an approved course of study in a law office or the chambers of a judge and pass the bar exam. (“Law Office Study Program”).

  32. Dr. Sigmund Droid

    Oops, my prior reply was meant for that John dude, not Greenfield . . . SHG wouldn’t make such an egregious misstatement of fact . . . Well, maybe he would, I don’t really know for sure . . .

  33. SHG

    Not knowing the facts, and not having sufficient interest in researching it, I would not have made such an egregious misstatement of fact. On the other hand, I also didn’t correct it, but appreciate that you did.

  34. Marc

    But then again, any internist will tell you that brain surgery isn’t realiy “brain surgery”, either. As someone who has seen a couple of holes drilled in heads (intentionally, by neurosurgeons), I concur.

    However, I do believe rocket science really is “rocket science.” Especially to most lawyers, because it involves math. And given many lawyers lack of familiarity with concept such as “math”, I’m sure that I should have some circle closing, pithy comment about the relation of math and admissions standards, but I just can’t (over)extend the analogy any futher.

  35. Dr. Sigmund Droid

    You’ve got it right in that it is a pentaverate of power mongers, but you have the players all wrong. The Pentaverate proper is composed of:

    – The Queen;
    – The Rothchilds;
    – The Gettys;
    – The Vatican;
    – And Colonel Sanders, before he went tits up. Oh, I hated the Colonel, with his wee beady eyes. And that smug look on his face . . .

  36. Konrad

    What you’re describing sounds more like charity than indentured servitude. Only an remorseless do-gooder would offer such an apprenticeship, and who can bear to hang around that sort of person all day?

  37. Dr. Sigmund Droid

    .
    I will speculate that you had some hand in sub-optimizing your law student internship program by not setting expectations properly on day one. Life is all about setting expectations and making sure those around you correctly understand the value proposition and the value transfer of the arrangement (i.e., you have the legal knowledge and skills they want and need while all they can offer in return are blood, sweat, and tears . . .

    If you give the internship/apprenticeship program another shot someday, you might want to open with the following day-one expectations setting dialog:

    SHG: I am Scott H. Greenfield, Esq., your Senior Law Instructor. From now on, you will speak only when spoken to, and the first and last words out of your filthy sewers will be “Sir!” Do you legal maggots understand that?

    APPRENTICES: Sir, yes, sir!!

    SHG: If you ladies leave my office, if you survive my brutal legal training – you will be a weapon of justice, you will be a minister of law, praying for war in the courtroom. But until that day you are legal pukes!! You’re the lowest form of life on earth. You are not even human beings!! You are nothing but unorganized grabasstic pieces of amphibian excrement!! Because I am hard, you will not like me. But the more you hate me, the more you will learn. I am hard, but I am fair!! . . .

    MARC ROMANO {whisper}: Is that you, John Wayne? Is this me?

    SHG: Who said that?? Who the f#@k said that?? Who’s the slimy little communist shit twinkle-toed cocksucker down here, who just signed his own death warrant?? Nobody, huh?!! I’ve got your name!! I’ve got your ass!! You will not laugh!! You will not cry!! You will learn by the numbers. I will teach you.

    And so it can be, a legal UTOPIA. Just. Like. That. ^^^

  38. Antonin I. Pribetic

    Why is this bar exam fail rate a problem? The greater number of law students who fail the bar, the fewer number of new lawyers to swell the bloated ranks of a surfeit of lawyers. Faced with a reduced pool of bright-eyed candidates flocking to the pastoral green fields of in-demand trades and professions, the ABA and the Law Academy will have no choice but to reduce admissions and focus on clinical law programs. It is a WIN-WIN-WIN scenario. FTW!

  39. Brick295

    I graduated from Albany Law in 2012, I passed the bar exam and most people I knew did too. However, the school lets in too many idiots and lets them hang around paying 40k a year in tuition and another 20k a year in cost of living loans despite the fact that they can’t pass the first year courses. They blow all this money on “events” in the lobby every other night that are replete with bottles upon bottles of free wine, beer and hors d’oeuvres so some club can have a presentation.

    Anyway, I graduated cum laude and had internships every summer, but can’t find a job to save my life. I’m waiting tables right now. Mirriam, do you have any job leads for me???

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