Day, C --- "Law Schools Can Solve the 'Bar Pass Problem' 'Do the Work!'" [2005] LegEdDig 7; (2005) 13(3) Legal Education Digest 10

Law Schools Can Solve the “Bar Pass Problem” — “Do the Work!”

C Day

[2005] LegEdDig 7; (2005) 13(3) Legal Education Digest 10

40 Cal W L Rev, Spring 2004, pp 321–354

The bar pass rate for law graduates peaked in 1994. Since the mid-1990s, this rate has declined precipitously. In 1999 and 2000, first-time test takers passed at a rate of only seventy-five percent; in 2002, first-time test takers who graduated from ABA-approved schools had a seventy-four percent pass rate. The decline in Law School Admissions Test (LSAT) scores foreshadowed these failures. The failure to pass the bar exam has devastating consequences for the applicant and may have serious consequences for law schools as reputations decline.

Law students attend law school to become lawyers. That is their primary goal and objective. A number of graduates do pursue non-traditional roles. This essay calls law schools and their faculty to action to recognise and address the problem. It is modest in scope because it does not attempt to radically reform legal education. The suggestions proffered will work at most, if not all, law schools that need to address a bar exam failure problem.

We are judged by our works. Legal education has a serious bar pass rate problem. Law students and law school reputations are paying a dear price for the decline in bar pass rate. Predictability is not destiny. If law schools and students take the bar examination seriously and use the suggested tactics and strategies, the LSAT prediction of bar exam success can be defeated. Law school bar pass problems are systemic. They are also rectifiable. If law schools have the will to recognise the problem and overcome it, students will be prepared to pass the bar and to practise. Law schools will have fulfilled their moral obligations to their students and society. If schools do not address this most important concern, they will have failed their students and harmed their reputation as law teachers.

Unfortunately, law school educators have not been guardians of the public interest. Law school faculty know that it is almost impossible to flunk out of most law schools. To be fair, there is some ‘weeding out’. Modern legal education is really an open admissions program that is ranked and sorted by credentials and quality of applicants. Virtually everyone who seriously wants to go to law school can and will be admitted at some school. Once there, it is pretty difficult to fail.

Grade inflation and faculty unwillingness to make hard decisions regarding students undoubtedly contribute to the result. Law school grade inflation is another component of the problem. It is likely to have a number of roots: the ‘pass/fail’ option, the lack of many required courses beyond the first year, open-book exams and take-home exams, to name a few.

Bar examiners stand between the law schools and the public. Examiners attempt to protect the unwitting public from incompetent lawyers. The purpose of the bar exam is to screen out applicants who are not fit to practise law. It is a high stakes test that is cumulative; it tests applicants on a number of subjects that they may encounter in practice. The exam is considerably different from the type of exams that law students have been exposed to in either law school or in their undergraduate training. While it is true professional competence would be assessed best if bar examiners could objectively observe applicants performing a number of tasks, authentic assessment is not feasible.

One of the criticisms of the Multistate Bar Examination (MBE) is that the multiple-choice nature of the exam forces applicants to speed through the exam and answer questions quickly, without reflection. This type of exam seems to be subject to ‘guesswork.’ One of the advantages of the MBE is that its multiple-issue testing provides a better read on the applicant’s knowledge than the typical essay, standing alone. The Multistate Essay Examination (MEE) was introduced to standardise the testing through vetted essay questions. The Multistate Performance Test (MPT) was introduced to test fundamental lawyering skills. Applicants are given a case file and a specific assignment from a ‘supervising attorney.’ The case file includes source documents, such as interview transcripts, contracts, correspondence and reports. Studies of the MBE have shown a high degree of reliability or consistency of measurement.

One solution to the bar pass problem is to limit enrolment to those with high LSAT scores. There is an extremely high correlation between LSAT scores and bar performance. Assuming that a school could afford to limit enrolment, even this option is not foolproof. If it succeeds in this strategy, it will have more students with higher LSATs and it will be perceived as more selective. However, there is no guarantee that concerted efforts to shrink enrolment and increase selectivity will achieve the goal. Law school applicant pools have their own bell curves.

A strategy of admitting students and flunking them out to maintain selectivity and increase the bar pass rate has complex moral and economic dimensions associated with it. It is unlikely that many schools will be able to sustain the income needed for such an approach. There are many strategies that law schools and individual faculty can employ to prepare students for the bar exam. The dean and the faculty should lead the battle. The dean and the faculty should set the tone of professionalism. Recognise and support students who learn differently. Recognise that the law does not come easily for most. Law schools can prepare students for the bar by teaching them the law. Law schools should encourage students to take ‘bar courses’ for a grade and be prepared to counsel them if their work is poor in these courses.

Law schools should identify and assist students who come to law school with bad study habits learned in high school and college. They must produce better legal writers by improving essay exam writing because better legal writing translates into better lawyering. They must give students better feedback regarding their performance. They should stress the importance of the bar exam to students. Law schools should advise students to get their financial and personal lives in order to pass the bar. They should counsel graduates who failed the bar and offer recommendations to improve their chances. They should keep detailed statistics to pinpoint students at risk and ‘bite the bullet’ with their retention policies. They should create and maintain strong academic support offices and offer special, non-credit, bar prep courses. Law schools should limit or phase out take-home and open-book exams. Schools might consider grading on the curve. They should create more small sections in basic courses. They may have to reduce some of their offerings in order to make certain their students are grasping the basics. Schools should eliminate ‘pass/fail’ grades except in the most limited circumstances. ‘pass/fail’ grades, especially when earned in the so-called bar courses, do not give students a valid assessment of learning. Last, but not least, reinstate and enforce attendance policies.

There are many things that law schools can do to improve students’ success in the bar examination. Most are fairly easy to implement. All law schools will have to work a little harder and a lot smarter if they want to change the disturbing trend in bar pass rates. It is clearly within the power of law schools to demand better effort and results from students and the law school itself. Faculty can show students the way to succeed.