Leigh Jones of the National Law Journal has a story on a proposed ABA bar passage requirement that would set brightline benchmarks as a condition of accreditation. According to a recent ABA News Release, an ABA-accredited law school would have to satisfy at least one of two criteria:
- "Under the first option, a school would have to show that in three or more of the most recent five years, in the jurisdiction in which the largest proportion of the school’s graduates take the bar exam for the first time, they pass the exam above, at or no more than 10 points below the first-time bar passage rates for graduates of ABA-approved law schools taking the bar examination in that jurisdiction during the relevant year. For schools from which more than 20 percent of graduates take their first bar examination in a jurisdiction other than the primary one, the schools also would be required to demonstrate that at least 70 percent of those students passed their bar examination over the two most recent bar exams."
- "Schools unable to satisfy the first alternative still could comply by demonstrating that 80 percent of all their graduates who take a bar examination anywhere in the country pass a bar examination within three sittings of the exam within three years of graduation."
There are a lot of potential problems here. Foremost is the huge variation in bar passage standards from state to state. In every jurisdiction, the ostensible purpose of the bar exam is to screen for "minimal competency" in legal knowledge. But the wide range in MBE cut scores and "equating" practices (which convert essay and MPT scores to the same scale and distribution as the MBE) has been aptly described by Gary Rosin (South Texas Law) as "federalism run amok." See Unpacking the Bar: Of Cut Scores, Competence and Crucibles (May 2007).
Second, the testing taking population varies enormously from state to state. See Morriss & Henderson, Measuring Outcomes (2007). Because of the explosive growth in the corporate law sector, large number of top law students from across the country take the New York, Virginia, and California bar exams. Further, this trend will only become more pronounced in the coming years. This means that lower-ranked schools in these jurisdictions (or bordering states, who will likely be affected by the 20% graduates/70% passage rule) will be tilting into ever-greater headwinds.
Third, while criterion #1 will cause a lot of panic, most schools will satisfy the "80% over three attempts" rule. See Wightman, LSAC National Longitudinal Bar Passage Study
tbl. 9 (presenting national data from early 1990s showing that 94.5% of
all applicants pass the bar within three tries); Klein & Bolus, Initial and Eventual Passage Rates of July 2004 First Timers
(June 2006) (finding that 91.6 percent of all Texas bar applicants
passed after three attempts). Yet, by the third try, who deserves
credit--the graduating law school or the review course?
Fourth, because of the steady stream of new ABA-approved or provisional approved law schools, which requires going deeper into the LSAT applicant pool to fill all the available seats, the ABA needs to prepare itself for the eventuality that some schools are going to fail for performance or financial reasons. (Query: Is it possible that this part of the long-term agenda of the pro-market U.S. Department of Education?)
Finally, any new bar passage standard for accreditation needs to be accompanied by serious research on which law schools, controlling for entering credentials, are associated with the largest gains in bar exam performance. There are some tricky methodological questions here--e.g., if the MBE score is the dependent variable, using a fixed effects model to deal with differences in cut score--but we certainly have the ability to solve them.
Once we know what curriculum, teaching methods, and (let's not kid ourselves) the attrition policies that produce the best bar results, legal educators can have an intelligent discussion on how to proceed. This might include designing a better bar exam, which has not significantly changed over the last three decades.