The Los Angeles Times has chimed in on the big problem with the California Bar Exam’s cut rate.
California’s bar exam is notoriously difficult. Or, more to the point, it’s notoriously difficult to pass, which is not quite the same thing. The questions that prospective lawyers must answer aren’t necessarily harder here than those on other states’ exams, but the grading is tougher. It’s as if you only have to get a C+ to be an attorney in Illinois, but you need an A- in California. Fewer than half the would-be lawyers who took the test here in the last three years passed it.
That might be OK if it meant that California’s attorneys were more competent, and the public better protected against poor lawyering, than in other states. But there is no evidence to support any such contention. The pass rate, as set by the state, is relatively arbitrary.
The word “relatively” does a lot of heavy lifting here. As Pepperdine lawprof Derek Muller responded on the twitters, there is a claim buried in there that’s simply false, that there is no evidence that higher bar scores correlate to protecting the public from bad lawyers.
The deans at schools accredited by the American Bar Association complain that the California bar exam’s passing score is too high and fails too many prospective attorneys.
But lowering the score may have significant costs. The bar exam is designed to be a test of minimum competence. Lowering the cut score means students who performed worse on the bar exam practice law.
[W]e present data suggesting that lowering the bar examination passing score will likely increase the amount of malpractice, misconduct, and discipline among California lawyers. Our analysis shows that bar exam score is significantly related to likelihood of State Bar discipline throughout a lawyer’s career.
In other words, there is evidence. Malpractice goes to basic competence. Misconduct and discipline go to basic ethics. And just between us, the word “basic” means that this isn’t the “brain surgery” of law, but the “don’t fall down and hurt yourself when getting out of bed in the morning” of law. This isn’t about producing brilliant lawyers, but about allowing people whose existence defies Darwinism to hang out a shingle.
The California bar exam may well be harder to pass than that of other states, not because it’s any more difficult per se, but because of a higher cut rate, which means a lower pass rate. Notably, no one considers the better solution to raise the cut rate elsewhere, because who gives a damn if lawyers in Wisconsin are boobs?
But the editorial needs a hook, since not even Californians are foolish enough to shed a tear over fewer lawyers admitted to practice.
More specifically, the unusually high cut score — the term that the testing establishment gives to the line that separates those who pass from those who don’t — means California’s bar is disproportionately white.
A study of the July 2016 exam showed that reducing California’s cut score from 1440 to the national median of 1350 would have increased the number of successful African American exam-takers by 113%. There would have been a 75% increase in success for Latinos, and 58% for Asians. Of course more white exam-takers would have passed using the national median as well – 42% more. But the ranks of lawyers in this state would have been a bit more representative of the population that enters and graduates from law school, and the population of clients who need legal counsel.
Nothing sells on the left coast better than disparate impact, and the numbers suggest the disparate impact on minorities is significant. Problem solved? Not even close. Nowhere does the LA Times try to understand, no less explain, this disparity. Why would black, Latino and Asian law students fail to make the cut at disproportionate rates?
Are they being disproportionately excluded from the good law schools, left to squander their tuition dollars on third-tier toilets? Are minorities too poor to take the bar review course that everybody takes because law schools suck at preparing law students for the bar? Or is the LA Times trying to skirt the tacit belief that minorities aren’t as smart as white lawyers?
There is another possibility, that smart minority students are in high demand under the extant academic social justice regime, such that they’re being drained away from law into more stable and lucrative careers. In other words, they’re too smart to become lawyers, and as law schools scramble to fill empty seats to pay their salary commitments, they’re constrained to take who comes along, for better or worse.
But as Muller shows, the cries that the bar exam is a big joke are untrue. Nor, as the LA Times asserts, is the bar a grand conspiracy to keep the ranks of lawyers down.
It is noteworthy that California has long had something that the legal establishment calls a “unified bar” — meaning that the same agency responsible for licensing and disciplining attorneys just also happened to be the lawyers’ biggest trade association. This made for something of a conflict of interest. Attorneys would argue that they have a role in keeping professional standards high, and that may be true — but they also have a clear interest in keeping their numbers low.
Somebody just failed the logic portion of the LSAT. If 100% of the takers got scores above the cut rate, they would all pass. After three years of law school and bar review, there is no good reason why every bar taker shouldn’t pass. It’s a test of minimum competency.
Unlike the LA Times, I suggest the problem has nothing to do with minorities being too dumb to pass, but too smart to want to be lawyers. There are better careers out there, more stable and lucrative, that suck smart people away from law, leaving too many empty seats to be filled by anyone who can sign their name to a student-loan application. I blame lawprofs who used to keep dimes in their pocket for just this reason, who now tremble at the thought of telling a student that he’s not cut out to be a lawyer.
Lowering the cut rate will certainly allow more people to become lawyers who have otherwise blown a huge wad and undertaken a wasted life of debt. They will commit more malpractice and engage in more misconduct, to the public’s detriment. To claim otherwise is a lie.
And not to pound away at a point that’s already been made too many times, despite its unpleasantness to narcissists and fools, but if lawyers can’t competently and ethically serve clients, they have no reason to exist. The profession doesn’t exist so lawyers have a place to go in the morning where they can stare at their ego wall.
Law was once a profession where, after three years of sacrifice, tuition, opportunity costs and angst, one could be reasonably assured of a comfortable middle-class existence. No more. Don’t blame minority law students for being too stupid to be lawyers. Blame them for being too smart. Blame the profession, and people’s lack of desire to pay for legal services, for why smart people no longer want to be lawyers. Unless that changes, why would smart minority students want to take the bar exam at all?
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Fortunately,my first-hand experience with California criminal law has, to date, been limited to that of an interested observer (juror, bailing people out, and weekend visitation); however, based on that tiny sample, plus somewhat more intimate exposure to family and divorce law and a heaping pile of civil litigation, I am horrified at the prospect of this state’s lawyerly class becoming any less capable than it is now….
I re-emphasize that the bar exam is the minimum, as is the Code of Professional Responsibility. This detail eludes many. The absolute, rock-bottom, worst you can get away with.
My experience in Texas brings me to the same conclusion as Maz. I see enough boobs and idiots in my practice as it is. And the frustrating part is that some of them are more successful that I (until they get caught). But then, Texas also has a unified bar and maybe I have a conflict of interest.
I realized many years ago I could be rich if only I wasn’t such a slave to honesty.
And yet, you have remained a slave to honesty.
So, really, how smart can you truly be?
Some people find it difficult to shave or trim the beard when they can’t look at themselves in a mirror. Those are the people who have to be slaves to honesty.
Is this a gratuitous swipe at my beard?
No. I have a beard, too. It’s almost as scraggly as yours.
Doubling down? Nice.
Swipes at your beard are never gratuitous, sir.
How difficult could the CA bar exam be? I passed it.
(You’re welcome, Scott.)
You forgot to mention “with my eyes closed.”
It’s interesting that you managed to come to the opposite of the most obvious conclusion (note that I don’t say it’s the correct conclusion, just that I think it’s the most obvious). But I guess that leaves the question of the white law students–what about them? To follow your logic, they aren’t as smart as the “minorities” (though it probably bears noting that whites aren’t a majority in CA, and haven’t been for some time).
Whites make up a disproportionate percentage of the college and graduate school applicant population, so they end up going to law school because they can’t get into med or coding programs. It’s just numbers.
And for future reference, the “obvious conclusion” to whom? Obvious isn’t necessarily obvious. Some people are smarter than others.
I thought it was just the usual professional union limiting the supply, so the demand stays high.
Same as the medics, if you pass too many doctors the prices will drop, and no-one who is already in the game wants that!
I’m sure the exam results correlate to real life in the same way they do for science, teaching, medicine.. and especially politics! No discipline wants to research the effectiveness of itself and its policies.
Bar associations are like a secret conspiracy, controlling lawyer supply to own the world. Nice tin foil hat, too.
To the extent there is any organized economic force at work here, it is the law schools and deans who realize they can’t keep filling seats with increasingly unqualified students if the bar exam blocks those students from practicing. That is why it is an issue now, when it hasn’t been for decades. We need to let the unteachable dunces into the profession so the law schools can sign up the next batch. Plus, “diversity.”
Diversity is the rationalization. Filling seats is the rationale.
If somehow there were not enough licensed attorneys in California, I’d imagine that the bar exam pass score would be lower in order to admit more to the bar. When I was a California resident, if I sought a competent and experienced lawyer, finding one would not be difficult.
Non-lawyer have vivid imaginations and really cool tin foil hats. What they do not have is anything useful to contribute.
I am not aware of any U.S. jurisdiction that claims to have any shortage of licensed attorneys. That actually seems to be part of the economic issue as well, in that, since about 2008, there have not been jobs even for all of the newly-minted attorneys who manage to pass their state bar exams.
It’s interesting that many equate passing an exam with competence. It’s a false equivalency. I’m a very senior database engineer. I’ve have interviewed countless candidates that have passed various vendor certification exams, yet had no “real ability” to perform their jobs in a real world environment. I’ve hired several candidates without those certifications that have proven to be excellent technicians and engineers. The only thing a Certifican exam proves to me is that the candidate has the ability to take and pass a test. A person passing a bar exam, has proven the same. It does not prove he is a competent lawyer. It doesn’t prove that he can make a valid argument in court. It doesn’t prove he understands the nuances of law. It doesn’t provide evidence of future conduct. If the California bar wants to establish a minimum threshold, they certainly can, but don’t try to wrap this arbitrary standard with BS saying there will be more incompetent lawyers on the street.
If you read the part about Derek Muller’s study, you wouldn’t have murdered these letters foolishly. Notice the distinction between the non-lawyers perspective, since they have no clue whatsoever what they’re talking about having never take the bar exam, and lawyers? Dunning-Kruger much? That’s why you just can’t stop yourself from spewing nonsense out of complete ignorance.
I’m sorry. I guess I didn’t read the part where lawyers were granted super human levels of thought and reason. Being a lawyer is simply another profession…nothing more nothing less. News flash! You’re not that special. I will return to my world now where lawyer types would be considered ignorant because they can’t find the on button on their computers..lol
Information. It’s like a super power. You know where to find the button for their computers. That’s your super power. When it comes to that, you are special. The bar exam, not so much. Information applies to all of us. So does the complete absence of information. Unfortunately for you, the utter absence of information is not a super power. It’s just ignorance.
Had you bothered to read what I suggested, you might begin to have a clue why you were not only wrong, but ignorant. You didn’t bother, and instead came back by doubling down on your ignorance. Dunning-Kruger it is. Go return to your world and lol at lawyers all you want. I hope it will make you feel better.
That your initial comment was what we’ve come to expect from the clueless is unsurprising, even if you’ve already shown yourself to be full of shit in the gun talk thread. But doubling down on the stupid is what makes you the poster boy for Dunning-Kruger. You check every box.
Should you ever appear here again, I will assume you’re a 12-year-old who snuck onto mommy’s computer when she wasn’t looking. How about another lol, big boy.
Can anyone who went to law school before ~1980 tell me whether or not they have actually seen a recreation of the “here’s a dime” scene from “The Paper Chase” while they were at law school? How many times?
Since you asked, the first thing that happened at law school was a welcome speech by the dean, who told us to look to our left, then look to our right. One of us would not be there next year. And it was true.
The dime scene is a movie, but back then, students who were not cut out to practice law were culled from the herd, and lawprofs understood their responsibility was to produce student capable of practicing law. As for those who were not, it was a mitzvah to save them the wasted tuition and opportunity costs of three years in school with no pot of gold at the end.
Not from faculty, but our placement director once told a student he should learn to dig ditches.
Why has no-one referenced Suits yet? Surely that is relevant here.
Bad commenters! Fail!