Law Professors, Law Schools

It's Bar Exam Time Again!

We really need to get to the bottom of the blame game.

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Every year, twice a year, I feel the cringe. It’s the feeling that Ben Kenobi must have felt when the Death Star blew up Alderaan. It’s “as if millions of voices suddenly cried out in terror, and were suddenly silenced. I fear something terrible has happened.” And every year, something terrible has happened (to others). It’s Bar Exam time!

Studying for the Bar Exam is a feat unto itself. It requires at least two months of prep time to take this, the last of the final exams. Law school graduates spend money on bar prep courses, lose time, and have needless stress. In the end, some will have to repeat it or abandon their life goal.

It has become an increasingly stressful venture, as bar exam passage rates plummet. Who’s to blame? Is it the law schools who admit anyone with a pulse? Is it the Bar examiners, who are constricting access to Bar Admission?  Is it the bar prep courses? Why do we even have this thing in the first place?

You see, to answer these questions, I would need a whole lot of data. At a minimum, as I reported last January, I would need this:

  1. Bar passage rates, for each bar prep course, by state. I know this is in itself rife with problems, because some courses give freebies out to top students. But what if some bar exam courses are failing students in different ways in different states? How will we know?
  2. LSAT and GPA by test taker and by bar review course. This gets into a whole bunch of FERPA issues, but I feel there could be ways to get that data without disclosing the individual student identity.
  3. Data about whether students are systematically bombing subjects at particular schools. Is a faculty member at least in part to blame?
  4. The worst to get: How much work did the student put into it? Was it all watching videos, or was some active learning taking place? Not that I’ll ever get any of this information, but this one is not likely to be reported accurately.
  5. Did the student have a traumatic or major life event, such as wedding planning, funeral planning, or some other life-changing event? Those events don’t pair well with studying.
  6. I want access to the questions bar examiners have been posing. All of them. Then we can compare level of difficulty.
  7. I want all of the above for the last 10 years.  [Actually, now that I think more on it, let’s say 20 years.]
  8. I want more transparency in bar exam grading. Sure, a bar exam taker can potentially get a ton of information, but it’s not going to be useful for determining issues in the aggregate.
  9. And, most importantly, I want a means to compel such disclosure. I’m not sure that is politically possible. It ought to be. People invest a lot of money in bar exams and law school. There needs to be some truth in legal education laws out there.

Why do I care? Because bar exam passage rates are dropping.  Law schools blame the Bars, the Bars blame the law schools, and in the middle somewhere are the bar prep courses. There is no way to empirically determine the answer to the blame game without some data. And there is apparently plenty of blame to go around, or at least to hurl at others. It’s sometimes convenient not to have data, apparently. It keeps the wheel of blame spinning.

For example, you might say it’s the fault of law schools that admit low-LSAT applicants who eventually end up failing to pass the bar. There is some evidence that this is true, although not across the board. Some law schools have had atrocious bar passage rates. Others have held steady in spite of the change in the population of law school applicants.

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Or you might say that the Bars are using it to restrict the supply of lawyers. For example, does this data really suggest a precipitous decline in the quality of law school applicants? And, is it just me, or did some bar passage rates decline before the change in the law school admissions market? Do the changes in bar passage rates correlate well with economic downturns? The California Bar’s passage rates seem almost… cyclical. In other words, is it possible that the Bars are using the bar exams as a way to constrict the supply of lawyers when the market is flooded, instead of using the exam as a measure of lawyer competence?

What about the bar prep courses? The answer is that, unfortunately, we’ll never know. There is nothing that compels them to disclose any relevant data. Do some bar prep courses get better passage rates than others? Is it because they offer discounts to students who need their services the least (high law school GPA, high LSAT, law review, etc.). There is no mechanism by which a student seeking bar prep services can meaningfully comparison shop. There’s no “truth in prepping” label.

What does this mean for you, the bar exam taker? Nothing. You still have to take the Bar. You’ll still want to take a bar prep course. But don’t for a moment think that the Bar has anything to do with your competence as a lawyer. You see, there’s no data to support that, either.

I think it is high time we start to rethink what the Bar Exam means, for what purposes it is used, and how we start to monitor success. After all, the ABA is very keen on measuring how well law schools teach and keep costs low, even potentially allowing more adjuncts to teach courses to keep costs down (hint: it won’t) and compelling “learning outcomes” standards to assure the law schools are doing their jobs (hint: most are). Let’s do the same thing with bar prep courses and, most importantly, the bar examiners.

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LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here.  He is way funnier on social media, he claims.  Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com.

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