The Journal of Legal Education’s Bipolar Issue

Of course, failing the Bar doesn't always turn out badly

I rarely read the The Journal of Legal Education.  The Journal, sent to every law professor in the country, is printed “as a public service” by Westlaw, which means that it is indirectly subsidized by the clients of practicing lawyers. Regardless of the merits of that practice, and indeed the Journal’s existence, there is a good and useful article in the recent issue:  Jane Yakowitz’s “Marooned: An Empirical Investigation of Law School Graduates Who Fail the Bar Exam.”  In the Article, Yakowitz focuses on the 150,000 law school graduates who have “taken but never passed a bar exam”: 1 in 10 law school J.D.s.  She creatively amasses data from various sources to conclude:

1)  African American and Latino and hispanic law graduates are “at least twice as likely as white graduates to become a never-passer”.

2)  If a graduate comes from a poor background, all else equal she is just as likely to pass the bar on the first administration as a student from a richer background. But if she fails the first time,  being poor is correlated with becoming a never-passer.  Yakowitz argues that this result follows from a lack of resources to study and prepare a second and third time.

3)  In the short term, bar failure significantly reduces employment and earnings.  In the long term – ten years – never-passers “bounce back”.  Though they never make as much as lawyers, they “surpass the trajectory of average college graduates their age.”  Most are working in legal settings.  That said, they make about “$17,000 less than J.D.-holders the same age and gender…”  And compared to lawyers who passed, never-passers experience significantly more career instability.  They are divorced more often than passers, and are less likely to live with their children.  In sum, never-passers decision to attend law school turns out to be a raw deal – though in the latter half of their careers, may pay mild dividends.

All in all, a decidedly useful and sobering piece of scholarship.  Law schools whose students pass the bar at less often than the state average should be thinking hard about changes they can make.  About a decade ago, Temple faced a problem like this, and we dealt with it through various forms of mentoring, and by lowering our curve to give students in trouble more sharp notice of what they were facing.  Our bar passage rate rebounded sharply, which is a source of great comfort after reading Marooned.

It’s a shame the rest of the issue is full of snarky work in which various authors assert that law schools intend to obfuscate and prevent learning because they are willfully blind to the blinding truth (discovered by the authors) that this is a bad way to teach doctrine.  As if that what the main purpose of law teaching was – as opposed to understanding why the rules work the way they do.  It is true that you need to know the rules to pass the bar exam.  But passing the bar exam – however wealthy and healthy it might make you – will not make you good lawyer.

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5 Responses

  1. Zach says:

    Good post, but what does it have to do with bipolar disorder?

  2. Joe Miller says:

    As opposed to regular law reviews, which are directly subsidized by nonpracticing lawyers, otherwise known as tuition-paying law students?

  3. Dave Hoffman says:

    Zach – it has nothing to do with the disorder. I was using bipolar in the non-technical sense, i.e., “having or marked by two mutually repellent forces or diametrically opposed natures or views”.

    Joe: Well there is a pretty big difference. Students get some return for their subsidy – an ability to join the journal, learn something, and get educational credit. What do practicing lawyers get by the publication of the journal of legal education? Though of course you could also have pointed out that the AALS appears to also subsidize the journal, so the students end up paying some of the subsidy.

  4. TJ says:

    Dave, you make it sound like Westlaw is a non-profit corporation so that, if they didn’t publish stuff like the Journal of Legal Education, they would return the money back to clients. Last time I checked Thompson Reuters is a publicly traded company. So its shareholders might be altruistically subsidizing the journal (though I doubt it), but its clients definitely are not.

  5. Because says:

    Interesting; though intuitively not all that surprising. Would like to amend, where possible, your closing thought to include: “Doing well in law school doesn’t make you a good lawyer in practice, either.”

    C’ est vrai homme.