The Bar exam is a regulatory system designed to protect consumers and the need for it is greater than ever. Recently, the group that creates the multi-state portion of the bar exam, the National Conference of Bar Examiners, reported a precipitous drop in the overall exam scores of test-takers. Many law school deans across the country protested, accusing the test-maker of mucking up the exam and maligning students for the NCBE’s failure.
The NCBE informed the objectors that the drop in exam scores reflects the drop in abilities of recent law-school graduates. This resulted largely from the lowering of admission standards by law schools. For example, the LSAT scores for students in the twenty-fifth percentile — the most vulnerable students — fell for virtually all law schools. Thus, we see the very real consequences of inadequately considering solid merit metrics, such as the LSAT exam, in entrance decisions: more law-school graduates failing the bar exam. It’s all well and good to eschew the LSAT and other merit-based entrance requirements when you’re not the future law-school graduate who has unwittingly been set up for failure. But for these duped students, flowery rhetoric that fails to consider the very real data on outcomes resulting from changing admissions standards only serves to exacerbate the problem.
Indeed, the position that the drop in bar passage largely reflects the change in admissions standards is logical. While no exam is perfect, there is little reason to suspect that this exam was dramatically flawed — even if there were marginal differences in outcomes when compared to previous examinations. And as I’ve discussed in the National Jurist previously, law schools are admitting students with lower objective measures, because schools need to fill seats in an environment of dramatically reduced applications. Equally, I’ve written about what should be an uncontroversial proposition: that the ingrained, indeed gold-standard, practice of considering LSAT scores and undergraduate performance in admissions decisions reflects the proper understanding that these metrics predict, inter alia, bar-exam success.
So, while bar exams still have dramatically high pass rates — belying the claim that supporters of regulating the admission to practice law are motivated by monopolistic-guild thinking rather than public welfare — an increasing failure rate should cause a re-evaluation of declining admission standards. Eliminating the bar exam would camouflage this phenomenon, putting more marginal graduates on the market — to the detriment of both potential law students unaware of their likelihood of success and consumers of legal services.
Perhaps another factor to be considered in the decline of bar-exam performance is that law schools are de-emphasizing traditional “doctrinal” classes — which serve as the bases for the topics tested on the bar exam — in favor of “experiential” courses.
Law schools have for some time offered clinical courses in which students garner greater day-to-day working experience. Including these courses in legal education is solidly supported by sound pedagogy. This is sometimes characterized as an effort to create “practice ready” graduates. But there’s no such thing as a free lunch. Every practice-focused course taken is one less doctrinal class. And what needs to be considered is that doctrinal courses are designed to teach core critical-legal analysis — the thinking necessary to be “practice ready,” in fact — in a fashion superior to the eponymous skills classes. Otherwise, of course, all classes would be designed and taught as practica. The key to practicing law is the intellectual evaluation of legal issues, and the Bar exam properly focuses more on this than it does skills. So, the proper balance is essential.
This is not to say that the bar exam is perfect. Indeed, it never could be. And we might consider de-emphasizing the amount of minutiae tested. But it serves a very useful consumer-protection role, nonetheless, particularly now given the pressure to admit lesser qualified students.
