The Right Number To Flunk

Law is hard, but not that hard. After three years of study at an accredited law school, it’s not unreasonable to believe that one would have the ability to pass the bar exam. And yet, many don’t.

Graduates who fail face losing jobs already started, not getting jobs that were promised, debt, embarrassment and more debt. Simply taking the exam again costs more than $700, and add to that the cost of further bar review classes, living expenses in the meantime and income lost. All told, thousands more dollars may be piled onto law school debt that is increasingly well above $100,000.

Most of those who fail their first attempt eventually pass the bar on the second or third try. After each attempt, however, these graduates do not learn to be better lawyers, they simply learn how to beat the test. And the damage done from the initial failure can be great. In addition to the financial costs, they may find themselves timed out of promising professional opportunities that never reappear. Finally, there are the emotional and psychological costs that are possibly the most overwhelming consequence of even one failed attempt.

This is all true, a veritable laundry list of terribles that come from failing the bar exam. But notably, it’s all one-sided, the narrative of the failed. As Dean of UC Hastings School of Law, David Faigman is likely smart enough to have deliberately tried to fool readers by this narrative. But it’s in his best interest as a law school dean to try to game the discussion.

After all, his job is to fill empty seats with paying butts, and if young people realize that after three years of education and a couple hundred thousand dollars of tuition, they won’t get to call their moms to say they’re lawyers, that’s going to be really hard to do.

The triad is at each other’s throats. As lawyers are far from assured of finding a job, making a respectable living, smart kids are looking elsewhere for their future. This means law schools are compelled to admit students who fill out their applications in crayon.

Then there is the issue of lawprofs, who get paid well to teach two classes a semester and write prolix articles about their deepest legal fantasies in the hope their colleagues in the legal academy will erect a statue of them in a quad. So what if they don’t teach the kids actual law stuff, as they have a legacy to build by teaching the law they wish there was with the encouragement of similarly-situated pedagogues, seeking only a tummy rub in return.

And then there is the Board of Law Examiners, dreaded by all for standing guard for the public by trying to cull the herd so that new lawyers might actually have the potential to deserve their monopoly without destroying too many clients’ lives in the process. Under attack for being irrelevant, unduly demanding, too harsh and lacking the sensitivity toward social justice that would allow the marginalized law student the unwarranted self-esteem he paid for with tuition, they demand some modest degree of knowledge about law.

The California bar exam has historically had the highest cut score of any state, consistently resulting in the nation’s lowest pass rates. In July 2016, California’s pass rate reached a record low 62% for graduates of American Bar Assn.-accredited law schools. New York’s was 83%. Although California has always had low pass rates, the July results caused an outcry. It finally dawned on those of us who run law schools in the state to ask why.

The disparity between New York and California isn’t a huge mystery. California allows students at unaccredited law schools to take the exam. New York does not. Just because you can draw a picture of a lawyer on the back of a matchbook doesn’t qualify you to be a lawyer. One problem solved, but there’s another that needs an answer.

Was New York truly allowing unqualified lawyers to practice? Did the State Bar of California have research indicating that its cut score of 144 was more protective of the public than New York’s 133?

Having given no thought whatsoever to how a “cut score” was determined, I had always assumed that there was some empirical basis, some firm, rational measure, below which a bar exam taker was just too pathetically stupid to be allowed near clients. After all, if a couple of people hanging out in a bar somewhere, drinking some boilermakers, said to one another, “hey, let’s cut them off at 133,” and they all laughed and nodded, that would seem kinda arbitrary. Would all those really smart law deans let that happen?

In fact, the best rationale the state bar can come up with for its high score is that it has always been this way. Tradition! And yet as Oliver Wendell Holmes pointed out over a century ago, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.”

If Dean Faigman is right, and one must assume that he wouldn’t put it in an op-ed on the Los Angeles Times if he was blowing smoke out his ass, then it raises a rather ugly question. So the law examiners, the law school deans, the law professors, the American Bar Association, the courts, took some random number and used it as the cut rate for passing the bar exam? So we thought you folks weren’t blithering idiots were smart enough to figure out a pass rate that would establish minimal competency and protect the public from a guild of goofballs? And what you’re telling us is that there really was a grand conspiracy of dunces who shrugged and mumbled, “I dunno, 133 sounds about right. Okay with youse guys?”

But there’s something uncomfortable with Faigman’s admission that the guild is a big scam. He uses the phrase “cut score” when everyone else uses “pass rate.” He opens his pitch with a recitation of all the sad tears a law student will shed for not getting his tarnished ticket. But he doesn’t tell the story of the sad tears clients will shed when they’re burned by incompetent or unethical lawyers. He doesn’t look to the failure in his own house for the inability of his customers to pass a test for which they spent the past three years of their life preparing, regardless of what the cut rate may be.

One would certainly think the pass rate should be based on some valid measure. One would also certainly think that three years and a quarter mil later, every law student should pass with at least a near-perfect score. And one would think that a law school dean would show some recognition, if not concern, that the point of all this isn’t to keep his babies happy and paying, but to faithfully serve the clients. Without them, none of this matters.

If law schools can’t produce graduates who can competently serve clients, then they should all fail. Lowering the cut rate may turn those law student frowns upside down, but it won’t win a case.

38 thoughts on “The Right Number To Flunk

  1. Terence Roberts

    Having taught at two California law schools over a thirty-five year period, including several stints at bar review courses, I can tell you that the “cut score” has nothing to do with pass rate. For the past six years the admissions “scheme” of most law schools should be spelled scam.

    1. SHG Post author

      Some years back, I implored prawfs to grow up, take responsibility and get a roll of dimes. I wave not been invited to a faculty tea since.

      The new admissions scheme is fairly obvious, if you can pay the freight or get a loan, you can go to law school. It’s not merely a scam, but one that harms everyone except prawfs and deans, who still get a paycheck and the occasional published law review article.

  2. Mike G.

    That’s always a good idea, dumbing down the bar for a professional license. We need more incompetent lawyers, doctors and engineers in the workforce. s/

    1. Dan

      …and if the bar exam had anything to do with a person’s competence to practice law, this might be relevant.

      1. SHG Post author

        You go a bit too far. It clearly doesn’t test a person’s competence to practice law, any more than law school teaches students to be competent lawyers. But it’s not a total waste either. The alternative is to let kids walk out of law school and strut into court to try a case? What could possibly go wrong. Mr. Rakofsky?

        The point is to find a way to assure that the people served by lawyers are somehow protected from incompetence. The bar exam may be a lousy metric, but the only viable alternatives are to return to the apprentice system or adopt the Brit’s pupillage.

        1. Dan

          Well, California has something like apprenticeship as well, but you still have to take the exam, and the pass rate is lousy, albeit slightly better than for unaccredited schools. Repeat takers from unaccredited schools had a pass rate of about 8.3%, while those who studied with an attorney for four years were 9.5%. (There were no first-time takers who’d done the study-with-an-attorney thing for the July 2016 exam).

          But yes, I go too far to suggest that the bar exam is meaningless, though I doubt it’s very meaningful. But I believe (having passed two of them) they serve much more as an arbitrary barrier to entry, and as something to “look good” to the public, than as a way of assessing anything to do with a person’s ability to practice law.

          And I’d note that Rakofsky did pass a bar exam, so I’m not sure he’s a very strong argument for their usefulness.

          1. SHG Post author

            Point taken on Rakofsky. But you see the problem, we need a bar, but the options kinda suck. And frankly, the bar exam is about as low a bar as one can get.

  3. Erik H

    Lots of this is a hidden intelligence test.

    I used to teach the LSAT. The students divided into two distinct categories:

    Those who had a full understanding of the importance of the LSAT in admissions were gung-ho and focused. “Wow,” they thought, “If they’re going to balance 4 years of my life and $250,000 of college expenses equally with a single 8-hour test, it’s clearly worth spending a few hundred hours to ace the test; it will produce maximum leverage of my investment in college.” And generally, they did.

    The other set…. well, they never really got it. That’s why i called this a “hidden” intelligence test: the LSAT was part of it but the real question was whether you could understand the importance of the LSAT.

    Since law has a huge component of unwritten rules, that always seemed pretty reasonable to me.

    It’s the same thing with the bar. Everyone should understand that they need to take the bar to pass law school. Everyone should know that they can take online barbri courses all summer, and–if they have the innate intelligence and reading skills–they will pass the exam. If a student gets distracted and fails to study, choosing to focus on social life or interesting seminars or whatnot, then they have failed the unwritten portion of the bar.

    1. Tim

      @Erik H. I think you have it right. One of my law school professors taught a BAR-BRI course. Two lectures were taped in front of a live crowd of BAR-BRI students for each bar exam. He talked about the students who came to him on breaks, announced that they were taking the bar for the __th time and then proceeded to ask dumb questions. He concluded the bar exam did a service of screening out folks who really were not prepared to be lawyers.

      1. SHG Post author

        That’s not about people who were unprepared to be lawyers, but too stupid to be lawyers. The question is how they managed to get through law school, and why law schools admitted them and didn’t flunk them out along the way. If they’re not up to the intellectual challenge on the back end, they never should have gotten that far, for their own sake as well as the public’s.

  4. Dan

    Yes, California allows graduates of non-ABA-accredited schools to take the bar. They even allow applicants who have never attended law school at all to take the bar. But the 62% pass rate cited in the editorial is for graduates of ABA-accredited schools (specifically, for first-time test takers who graduated ABA-accredited schools in CA)–the pass rates for CA-accredited schools, and for non-accredited schools, are much lower. The overall pass rate for first-time takers in July 2016 was 55.6%, and the rate for all takers was 42.7%. (Source, if you want: http://admissions.calbar.ca.gov/Portals/4/documents/Statistics/JULY2016STATS120716_R.pdf)

    Whatever the reason is for CA’s lower pass rate, the delta discussed in the article has nothing to do with unaccredited schools.

    1. SHG Post author

      Well then, they’re just not as smart as New York law students. I was wrong to give them the benefit of the doubt.

      1. Patrick Maupin

        Oh, there’s an empirical basis, all right. And ignoring it is a luxury that New Yorkers, especially those with kids, will no longer be able to afford once global warming hits its stride.

        On the bright side, though, those on-the-fly calculations of how long you can spend in the grocery store before junior’s crayons melt into the back seat of the minivan will help to keep your mind sharp.

  5. B. McLeod

    “Tradition” doesn’t mean there was not a reason, but sometimes only means that all the people who knew what it was are gone. In any event, it isn’t like California is the only state with bar exams. Maybe some of the grads will have to move to Pennsylvania, but a lot of them can probably find a bar somewhere they can pass.

  6. Edward Adamsky

    It’s called a “cut score” because that is what it means. It’s designed to ensure a certain percentage fail the test. Otherwise why have a test. The point of the test becomes making sure some people fail, not to ensure that those who pass are any good at what you are ostensibly testing. The test itself probably doesn’t even measure what we think it might measure (whether someone will be a good lawyer or not) but it does appear to do that as long as enough people fail. That way the people in charge can say they are doing something for the public good, whether they are or not (and they are probably not).

    1. SHG Post author

      So it’s another guild conspiracy to marginalize the downtrodden. Nice tin foil hat you got there, Ed.

  7. Jeff Gamso

    How well I remember the questions about the Rule in Shelly’s Case on the bar exams! (Yes, “exams” plural, I took – and passed – both Texas and then Ohio). Actually, I don’t remember those questions. Nor do I remember a damn thing about the Rule in Shelly’s Case except its name (and I’m not even sure I’m spelling “Shelly’s” right).

    The bar exam tests at most a certain kind of diligence in preparation and skill at knowing what sorts of answers are wanted by the examiners. Diligence and understanding what answers are wanted are certainly useful attributes for a lawyer, but in terms of testing competence actually to practice law and fuck up people’s lives? No more than those three years studying, well, the Rule in Shelly’s (or is it Shelley’s?) Case.

    Like it or not, the bar exam is primarily a sop to the public, kind of like mandatory CLE where we force lawyers who do nothing but mergers and acquisitions sit in a room doing crossword puzzles and listening to their iPods while someone at the front shows a pretty power point while droning on about, say, the statute of limitations for suing over badly done dental implants.

    The enterprise of holding the keys to the kingdom is not entirely a scam, but there’s sure an element of scam to it.

    1. SHG Post author

      But do you remember the fertile octogenerian rule? It sucks, but it’s better than the alternative of no test (and as you’ve proven, it’s just not that hard to pass 😉 It’s certainly better than the ridiculous notion that CLE were going to keep lawyers abreast of the law.

      1. Jim Tyre

        Jeff and Scott, you’re both missing the boat. The key to the bar exam is incorporeal heriditaments.

      2. Jeff Gamso

        With advances in gynecology and related fields, the fertile octogenarian will soon no longer be seen as a joke by the first years.

        As I said, not entirely a scam. But yes, mandatory CLE . . . .

        1. SHG Post author

          With age, the fertile octogenarian rule takes on much darker significance. I know you understand.

  8. losingtrader

    I may have to move to California because I’m bored and just want to see if I can pass the test on the first try with no law school.
    , I decided to test your comment about the exam not being difficult take one of the pre-tests (using previous MS Bar questions) of an online prep program, and I’m getting about 75% of the multiple choice questions correct without thinking hard.

    Am I missing something? I mean other than 3 years of law school?

    Can I perhaps qualify for a bar card based on the total amount of legal fees paid in my lifetime?

    1. Billy Bob

      Lose money on every trade, make it up on volume! Somehow your handle does not come across as genuine.
      Rumour has it that Arnold Swartzenegger is applying to law school, after two terms as Governor of Caulifornia. If he cannot pass the bar on the first try, we trust he will “strong-arm” them, if you catch our drift?
      P.S., if you were a losing trader, you would not be here. Everybody on SJ is a winner, except,…. Sorry, I’m out of time.

  9. GCA

    Stanford School Dean Kathleen Sullivan failed the 2005 California bar exam. As for ABA accreditation meaning something, the California accredited, but not ABA accredited, night school I graduated from had the highest pass rate in the state in the 1960’s and 70’s. It graduated many successful, and its share of distinguished, lawyers over its 100+ year history. I went there from 2007 to 11 because it was dirt cheap. All the prawfs were adjuncts and grounded in real law practice. Unfortunately, it forgot what it was, became eligible for government guaranteed student loans, tripled its tuition, and will likely not survive another 5 years.

    1. Terence Roberts

      Sullivan flunked due to huberis. She didn’t study well, thinking that if she did it twice, Mass & N.Y., she’d breeze through. Not so.

  10. Psychometrician

    As a psychometrician who has worked with computer and teacher certification and (most recently) educational assessments, I can categorically state that there is a well-established methodology for setting cut-scores on at least these sorts of tests. The processes are always meticulously documented because of the possibility of lawsuits. While I can’t address the ways that bar exams have their cut scores set, I would be very surprised if they were being set arbitrarily without any sort of a formal process.

    This doesn’t mean that they’re not a barrier to entry, they probably are. The accepted processes require that experts make judgments, and so these are (for the most part probably) lawyers, who obviously have incentive to want higher cuts, the better to limit (new) competition.

    Not being a part of the creation of these tests, I don’t know for a fact what the process is for sure. However, we live in a very litigious society, and if the cut were an arbitrary number with no process to back it up, I think that lawsuits would have already been flying.

    1. SHG Post author

      This may not have been obvious to you, but I don’t actually think the cut rate was arbitrary. It was used as rhetorical device to question the absurdity of the assertion. And you’re telling lawyers that we live in a “very litigious society”?

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