Who's To Blame For School's 'Horrific' Bar Results? Maybe The California Bar Examiners.
It's seriously time to reform this test.
The California Bar Examiners have sent letters to law schools informing them of their passage rates. For UC Hastings, acting Dean David Faigman was on the receiving end of “horrific” news. The July 2016 passage rate for first-time takers from Hastings was a mere 51 percent.
Holy hell.
Faigman certainly doesn’t sugarcoat it in a message sent to the Hastings community. He calls it unacceptable. He highlights that the school is 11 points below the state average. He outlines concrete efforts the school will make to help those who failed. He explains that he’s already taken steps designed to improve passage rates going forward. You can read his entire message and evaluate his proposals for yourself here.
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And while some alums are understandably dissatisfied with what they see as the deeper problem born of slackening admission standards in the post-industry collapse world, at least this school is willing to be blunt about its bar exam problem instead of hiding behind a wall of obfuscation.
But Faigman makes one other subtle — but vitally important — point in his letter that he carefully notes isn’t an excuse, but that deserves attention nonetheless:
As an aside, let me express my utter incredulity with the conduct of the Committee of Bar Examiners of the State Bar of California. The pass-rate for first-time takers of ABA accredited California law schools was 62%. In comparison, New York’s bar-pass rate was 83%. The California Bar is effectively saying that 38% of graduates from ABA accredited law schools are not qualified to practice law. This is outrageous and constitutes unconscionable conduct on the part of a trade association that masquerades as a state agency.
However shameful the State Bar’s conduct, it does not relieve us of our obligation to fully prepare our students to pass the bar exam.
It doesn’t. At least that 11 percent of students who failed below the state average is on Hastings. But those of us in the industry press do have an obligation to call out how ridiculous the California bar is.
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F**k you guys, California Bar Examiners.
Seriously, where do you get off sitting in your gilded tower and pretending your legal market is soooo much more precious than the rest of America’s? Papering up Angelina Jolie’s divorce isn’t exactly cleaning the Augean stables, and it doesn’t hold a candle to complex banking fraud. And here in New York we have transactional lawyers setting up complex banking frauds every day! At least you’ve finally abandoned that self-important ludicrousness of a three-day exam. We hailed that as a sign of progress before, but in retrospect that was probably just the Pasadena Convention Center ending its “rent two, get the third day free” program.
More than one in ten Stanford grads fail this exam! Around 15 percent of Boalt grads fail! As Bar Exam Stats reported of the 2015 California bar exam results:
Why does California have an exam that causes havoc for even some of the very best law graduates in country? Could it be a genuine desire to manipulate the legal market? In discussing the ABA’s proposed accreditation standard requiring 75 percent passage, Dean Vikram Amar of the University of Illinois noted yesterday:
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Moreover, as Dean Parrish observes, we must deal with the fact that the new rule will have much harsher effects in a few states – like California – that have low bar pass rates, not because exam takers in those states are less prepared, but because those states have (for protectionist or other questionable reasons) a much higher threshold required for passing. (I think that over time widespread adoption of the Uniform Bar Exam should cause pass rates throughout the country to move closer together – more on that in a later column – but this year illustrates the wide range among states. Even among two “difficult-bar-exam” jurisdictions, California and New York, the first-time pass rate among ABA-in-state-school graduates was very different – 62% and 83%.)
He did not say it outright, but let’s run with the protectionism logic. Perhaps there’s an impulse to keep qualified lawyers out of California to protect its current bar members. Oh good, that always works out well when we take life lessons from the Smoot-Hawley tariff.
First of all, the California State Bar’s ethical obligation should be protecting the citizens of California from bad lawyers, not protecting the market share of people who already passed the test. The market will decide how many practicing lawyers the state actually needs — the bar exam just needs to set the floor for certification. Secondly, on the subject of its obligations to the citizens of California, has anyone checked out the state’s justice gap? Because… talk about horrific. That’s certainly not helped by keeping an artificially tight lid on the population of potential pro bono hours. Third, obviously there are some really terrible, borderline predatory law schools in California. Above the Law is well aware of that. But these standards chill attendance even at perfectly good schools, as more and more people decide it’s not worth it to waste the money and be left without a professional certification just so the state could puff up its existing lawyers. On the other hand, maybe this is why California needs an ABA rule requiring 75 percent passage — when roughly three-fourths of the law schools in California are functionally shut down, that might light a fire under these idiots.
You know how we know California runs a farce of an exam? They run a test that Kathleen Sullivan failed as the dean of Stanford Law School. If the dean of one of the top three law schools in the country fails your exam, that should serve as a powerful warning that the exam isn’t really about determining attorney fitness. This high-profile incident should’ve resulted in a major overhaul of the exam’s philosophy, but instead everyone pointed and snickered at the Supreme Court litigator who couldn’t pass the exam.
Because life is an issue-spotting exam and America is failing.
So, yes, Hastings needs to get its act together and produce students equipped to pass this exam in higher numbers. But it’s way past time for the California State Bar to take some responsibility for what’s happening.
Because there’s a not insignificant number of fully competent Hastings (and other law school) grads they’ve sacrificed on the altar of clueless protectionism.
(Dean Faigman’s full message to the Hastings community is available on the next page…)
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.
