We have to talk about the bar exam

Thank you very much to the team at Best Practices for Legal Education for inviting me to blog this week.  My particular thanks to Elizabeth Murad for administering the blog, Professor Mary Lynch, Kate Stoneman Chair in Law and Democracy & Director, Center for Excellence in Law and President & Dean Alicia Ouellette of Albany Law School for hosting this blog.  It is an honor to join such a distinguished group of scholars and teachers.

We knew it was going to be a bad bar year when on Sept 14, 2018 the NCBE announced that “the national average MBE Score for July 2018” had decreased “about 2.2. points from the July 2018 average.”  And, indeed, as states have announced the pass rates based on their own individual formula of MBE plus essays plus the MPT (multistate performance test) plus their own individualized questions, the results were bad.  A lot of our students failed the bar exam.  Pass rates were down in New York, in California, Georgia, Florida, in Texas, and lots of other places.  Yet at the same time, individual schools saw significant success in raising pass rates in the face of grim news all around them.  All of this makes for glib headlines and much handwringing, but in the context of a blog post on “Best Practices for Legal Education” it is more helpful to take a step back and assess the tools we, as legal educators, have available to us in addressing bar passage in our individual schools.  I do so from my Ph.D. studies in higher education as well as from my experience as a dean, associate dean, law professor, and medical school professor.

One of my main themes this week will be to argue for individualized problem solving.  If anyone comes to you with a product to solve all your bar passage problems, I hope after this week you will be able to ask some questions about the data on which they base their claims.    Because a productive discussion of bar exam passage really rests on two questions—1. Why aren’t the students at your law school passing the bar exam at the rate they “should” and 2. What should you do about it?

I am going to use this week to share with you some of the resources available to law schools, to individual faculty members, and even to law students who want to increase their chances of passing the bar the first time.  Along the way, I hope to address some of the unhelpful myths that have arisen and to endorse a very old idea borrowed from the then revolutionary 1960s era child rearing techniques of Dr. Benjamin Spock: These are your students—and you know more than you think do.  Trust your judgement.  Ask questions.  That doesn’t mean that you can do everything yourself—it’s fine to consult with experts, but in the end addressing bar exam passage issues is a school wide effort and everyone has relevant information to add and a valuable role to play.

To get started, it’s helpful to have an overview of the players.  As a matter of foundational Constitutional Law, each state retains the power to license and regulate professionals.  (more detail here).   As a result, every state and territory has its own process for setting criteria for bar passage.   Almost every state contracts with the National Conference of Bar Examiners which develops the annual exam, grades it, and spends a lot of time explaining itself.  If you have any interest in this topic, a free subscription to The Bar Examiner will quickly bring you up to speed.

Tomorrow–how a test from the 1950’s trips up today’s digital natives (or “Do we need a Tardis to match law school curriculum to the bar exam?”)

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Professor Merritt’s Blog post on attorney discipline and bar exam WORTH A READ!

Our blog has often posted about many issues related to licensing lawyers, experiential requirements for admission, the monopolizing power of the NCBE and the pros and cons of the UBE.  Thus, I recommend to our readers an excellent post by our blogger friend Professor Deborah Merritt over at Law School Cafe on bar exam scores and lawyer discipline. Professor Merritt analyzes an article by Pepperdine Professors Robert Anderson and Professor Derek Mueller entitled The High Cost of Lowering the Bar Exam.   Professors Anderson and Mueller opine that “lowering the bar examination passing score will likely increase the amount of malpractice, misconduct, and discipline among California lawyers.” Merritt objects to any causal inference noting,

Two key facts, however, weigh strongly against drawing that type of causal inference. First, as Anderson and Muller point out, “[t]here is virtually no discipline in the first 10 years of practice.” If the bar exam measured qualities related to attorney discipline, one would expect to see disciplinary cases emerge during those 10 years. Wouldn’t attorneys with marginal competency (as measured by the current bar exam) reveal their deficiencies during their early practice years?

Second, attorney discipline almost never rests on lack of knowledge about legal doctrine, poor reasoning skills, or bad writing–the skills currently measured by the bar exam. Levin and her colleagues reported that attorneys most often received discipline for failing to communicate with clients (20.0%), lack of diligence (17.93%), and failure to safeguard client property (11.26%). Only 4.14% of disciplinary sanctions related to “competence”–and even some of those cases may have reflected incompetence in areas that are not tested by the bar exam.

My favorite comment by Professor Merritt provides another example from which we should not infer causality (however tempting it might be to some of us who have been hurt by patriarchy),

We should not exclude individuals from a profession based on qualities that merely correlate with misconduct.

To underscore that point, consider this: The strongest predictor of attorney discipline is the y chromosome. Male attorneys are much more likely than female ones to be disciplined. If we want to use correlations to reduce instances of attorney discipline, it would be much more efficient to ban men from the profession, subject them to special character exams, or require them to achieve a higher bar exam score than women. Those actions, of course, would raise special issues of gender discrimination–but they illustrate the drawbacks of predicting malfeasance based on correlations.

These questions and assumed correlations are important ones. Many defend the decreasing bar passage statistics as appropriate market correction to prevent “undesirables” from entry into the profession — a consumer protection argument. However, as Professor Merritt points out, there is so much more to unpack here. For example, most misconduct challenges occur against solo practitioners or small firms. This raises overlapping socio-economic questions: which lawyers could be perceived as easiest to challenge, which lawyers have the best legal defense teams, and which kind of clients have the most reason to complain.

After teaching for over 28 years and observing which graduates pass the bar on the first try and which do not , I am skeptical of the Anderson-Mueller argument. I would love to see the NCBE and other scholars engage in a socio-economic analysis of bar passage and of disciplinary misconduct.

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