Why Are More People Failing the Bar Exam?

idtheft4.jpgAn interesting article in the National Law Journal describes how the passage rates for the Bar Exam have been declining:

Nationwide, some 28,110 people failed the test in 2004, for a 64 percent pass rate. By comparison, 65 percent passed in 2000 and 70 percent passed in 1995.

Some observers point to higher pass scores required by some states as the culprit, others note a proliferation of new and unaccredited law schools, and still others blame a lack of preparation provided by all law schools. Indeed, the situation has become such a concern that law schools have begun implementing for-credit bar review courses into their curricula.

Whatever the reason, the failure to get an attorney’s license is creating a crisis situation for a growing number of graduates who sit for the exam, often burdened with crippling debt. . . .

Since 1995, the number of people failing the test has ballooned by 28 percent, while the number of law graduates taking the bar exam has increased by 6.4 percent, according to the NCBE. In 2004, some 77,246 people sat for the bar exam, compared to 72,591 in 1995.

The article proposes several theories for the declining pass rates, such as a lack of preparation for the Bar Exam by law schools and the existence of more unaccredited law schools. I’m skeptical about whether these are the reasons. The article proposes a third reason that probably is the most significant factor. In the face of great uncertainty about whether the Bar Exam really tests anything meaningful, states continue to raise the minimum scores necessary to pass the Bar:

Some states, including New York, have raised the so-called “cut score” on their exams, meaning the minimum score required to pass. As of 2005, New York examinees needed to earn an additional five points to qualify for licensure. In July, the pass rate dropped one percentage point from the prior year and two from 2003.

Other states raising their minimum passing score in recent years are Florida, Ohio and Illinois.

“I’m not sure that the bar exam is getting harder. It’s the cutoff line that really seems to make the big difference,” said Denise Riebe, a senior lecturing fellow at Duke Law School and the author of “Pass the Bar!” (Carolina Academic Press, 2005).

The article discusses how some schools are spending more and more time teaching to the test, but this is problematic because the Bar bears little resemblance to the practice of law. As I’ve written extensively before, I believe that the Bar Exam should be abolished. It doesn’t test the critical analytic abilities needed to practice law; instead, it is basically a memory test about a bunch of rules that are often obsolete. One has to suppress thinking on the Bar Exam. Instead of abolishing the Bar, unfortunately, it appears that the trend is to raise the scores needed to pass.

Related Posts:

1. Solove, Abolish the Bar Exam

2. Solove, Bar None (De Novo Blog, Aug. 10, 1995)

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6 Responses

  1. MR says:

    I think that the growth of unaccredited schools must have some role. If you look at the stats in California, the highest fail rate is among (a) unaccredited schools, and (b) second time takers. Thus, I don’t think that higher standards can account for all of the decline in pass rates when the number of unaccredited schools is increasing.

  2. rtw says:

    I don’t doubt the article’s comment that: “Indeed, the situation has become such a concern that law schools have begun implementing for-credit bar review courses into their curricula.” But how does that comment square with this ABA accreditation standard?

    “Interpretation 302-7:

    If a law school grants academic credit for a bar examination preparation course, such credit may not be counted toward the minimum requirements for graduation established in Standard 304. A law school may not require successful completion of a bar examination preparation course as a condition of graduation.”

    I suppose that the course can’t count toward the graduation requirements, and it can’t be mandatory, right?

  3. it’s probably not the fact that the schools are unaccredited that’s the problem, it’s just that having them around increases the pool of test takers….and their lower pass rate probably says more about the caliber of the test taker than it does about the quality of school they came from. The converse is also probably true: the “better” schools’ higher pass rates are probably just due to a higher caliber of student rather than the quality of the teaching of 1st year Crim Law.

    They could probably also increase the pass rate just by allowing you to take it after the 1st year instead of waiting so long after you’ve taken the applicable courses.

  4. Mikeyes says:

    Medical students take the national boards exam in three parts, two of them in school and one after internship. While it is obviously not the same since this is a national test and each state has separate laws, the format might help both the schools and the students. Even though the test is taken in parts (and some schools, like Yale, use it as their only grade) it does not count until you graduate from school (thus showing you are capable of doing the body of work to become a physician) and then finish your first post-graduate year. A similar program could be started at some state schools.

    Or, you could do as Wisconsin does, and trust the schools in the state to produce sufficiently prepared students so that simply by graduating from UW or Marquette you are deemed qualified to practice law.

  5. DDR says:

    Response to rtw, March 14:

    Interpretation 302-7 is too new to know precisely how it will be applied by the ABA. A for-credit course can count toward graduation, though; the limitation is that it can’t be counted toward the ABA minimum credit-hour requirement. Many schools require more than the ABA minimum for graduation, so bar prep credit can be used for a law school’s graduation requirement exceeding the ABA minimum hours.

  6. TV says:

    When there are too many law schools in the country that take too many students how does the field limit practitioners? They set bar pass rates that cause higher numbers of applicants to fail. Then they speculate as to why that is. Are the people who fail incapable of passing? Are they from unacredited law schools? Are they discouraged by the entire adversarial, scarcity based enculturation?

    If you are going to compare law to medicine please look at the fact that the AMA and the acrediting bodies for medical schools limit the number of students accepted as a means of limiting the number of graduates. Graduates need to prove competence not compete for a posiition in which they can practice their chosen profession. This is a responsible model, in my opinion.

    People are making tons of money on the unsuccessful law school graduates, money on tuition, money on bar review courses, money to sit for the bar, money to retake the bar review courses and money to retake the bar. I think the law school admission, graduation and testing procedures should be scrutinized and regulated by individuals who have no financial stake in the current system.