Why Are More People Failing the Bar Exam?
An 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.
2. Solove, Bar None (De Novo Blog, Aug. 10, 1995)