Law Prof Backtracks on Bar Pass Post

Law Schools

Posted Feb 8, 2008, 08:00 pm CST
By Debra Cassens Weiss

Corrected: This week, Paul Caron’s blog got more attention than he bargained for.

Caron – the Associate Dean of Faculty and a law professor at the University of Cincinnati College of Law – ignited a firestorm of controversy this week when he posted on his popular TaxProf Blog that seven law schools might receive failing grades if a new ABA proposal on bar passage rates is accepted during the Midyear Meeting in Los Angeles next week.

But to judge the schools, he used only one year’s worth of data, while the standard takes into account bar pass rates over five years. The ABA and several deans of the named schools – some of whom reported hearing from worried prospective students and financial supporters -- jumped all over the error.

At issue is a proposed accreditation standard (PDF posted by TaxProf blog) under consideration at the Midyear Meeting, the National Law Journal reports. The newspaper says the House of Delegates is expected to pass the controversial proposal under pressure from the U.S. Department of Education, which gives the ABA accreditation authority.

The proposal says a law school’s bar passage rate will meet the ABA accreditation standard on the subject if it meets any of the following tests:

In the last five years, 75 percent of the school’s grads who sat for the bar passed an exam, or, in at least three of those years, 75 percent of the grads graduating in those years who sat for the bar passed an exam.
The school’s annual first-time bar passage rate in jurisdictions most popular with its grads is no more than 15 points below the average first-time bar passage rates for grads of ABA-approved law schools.

Hulett H. Askew, the ABA’s consultant on legal education, said the TaxProf Blog data is inaccurate and covers only one year, while the ABA standard takes into account bar passage rates over five calendar years. An ABA fact sheet (PDF) on the proposed interpretation backs him up.

Eric J. Mitnick, associate dean for academic affairs at Thomas Jefferson School of Law in San Diego, said “the 15 percent rule is only relevant to the first-time passage rate. And the data Caron uses includes retakers." Mitnick says there is no way his school would have made a failing grade, and that the implication is harmful. Officials at the school point to California Bar stats here and here to support their argument.

St. Thomas University Dean Alfredo P. Garcia, whose school also was on Caron's list, contacted the ABA Journal to likewise dispute the data used by Caron.

"We presented data to the ABA accreditation committee that established that over 80 percent of our graduates passed the Florida bar examination within three years of graduation, which clearly exceeds the new proposed 301-6 interpretation, which only requires that 75 percent of a school’s graduates pass within five years of graduation," Garcia said in an e-mail.

On Friday, facing intense criticism, Caron wrote a follow-up post linking to the source of his "one-year snapshot" data and correcting his description of the ABA's proposed bar accreditation standard:

"Schools that fall below the 75 percent / 15 percent thresholds in any one year thus can (and often do) easily meet interpretation 301-6 when measured over the requisite five-year period, especially when the differences between bar passage rates for first-time and non-first-time test-takers are factored in (which they are not in the one-year data)," Caron wrote.

The current ABA rule requires law schools to show they are preparing students for bar admissions, but does not require specific bar-passage numbers.

The measure is expected to go before the ABA’s House of Delegates on Monday.

Updated at 8:00 PM Friday to include the deans’ comments and incorporate Caron’s correction.

Comments

Report Abuse

Posted by MSG - 9 months, 2 weeks, 4 days, 6 hours, 1 minute ago

It is about time! Law schools have been over selling the profession and prospective incomes for years. There are too many graduates that should never become lawyers for one reason or another. All colleges, universitys and post-graduate institutions should be held accountable for the exam pass rate and employability of its graduates!
Posted by Elliott R. Teel - 9 months, 2 weeks, 4 days, 4 hours, 1 minute ago

As a graduate of one of those listed, UDC, I can assure you they don’t sell prospective income. Of course bar passage is important (and I’m happy to be 2 for 2), law school gives you a J.D., and not everyone actually wants to practice law. But denying accreditation would be the end of UDC, which provides a service that every law school should aspire to.
Posted by William Catheter - 9 months, 2 weeks, 10 hours, 39 minutes ago

The pass rate at my law school was respectable, but there were still plenty of dummies coming out of there who I wouldn’t hire to shine my shoes, let alone trust with a case worth more than a pittance. It’s not the pass rate that is important, it is the integrity of the lawyer. In fact, some people who take a long time to pass the bar (not me) turn out to be good lawyers. I know a girl who took 3 times to pass, had a tough time getting a job, but now, she’s happy practicing, and her boss is happy to have her. He doesn’t know, and it wouldn’t matter if he did, that she had such a tough time with the bar. That was years ago, and she’s matured into a decent lawyer. So look beneath pass rates to the person inside and you will be better off than just tarring and feathering law schools with low pass rates.
Posted by JMG - 9 months, 2 weeks, 8 hours, 12 minutes ago

As a grad from Thomas M. Cooley, a school derided by many as a “legal diploma mill,“ and that has had problems with bar pass rates in some years, all I can say is that—- having crushed the bar exam in two states now and having worked with Michigan and Harvard grads ——I gave up nothing to the grads from other schools.

The bottom line is that, given the vast number of people who cannot afford legal counsel for their ordinary problems, the country needs a lot more schools like Cooley and, by definition, no more “selective” law schools. Yes, this would drive down salaries, but that’s what has to happen for people to be able to afford legal help.

Since first becoming a lawyer in my 40s, I’ve always said that lawyers should be paid about what masters-prepared teachers get; this would have at least three good consequences:

1) people would stop going into law seeking riches rather than to be of service;

2) far more Americans could afford the legal help they need to prevent problems; and

3) more of the brightest folks would again choose the much more important and necessary career of teaching as a career rather than law.
Posted by marshall prettyman - 9 months, 2 weeks, 7 hours, 41 minutes ago

75% seems rather unrealistic if the overall pass rate is 40-50%. Both jurisdiction where I have passed the bar the first time at some later date had very low pass rates. Interestingly enough the low pass rates came from the supposed poor performance on the essay portion, the totally subjective part of the test. Multistate scores were as high or higher than previous years when the pass rate was higher. Accredidation shouldn’t be tied to subjective decisions by bar examiners who are practicing attorneys with a vested interest in limiting members of the bar.
Posted by ptd - 9 months, 2 weeks, 7 hours, 34 minutes ago

After college I waited one year before law school, was offered a teaching job and did so briefly until admitted to law school. After law school I went to work for big oil corp. Six months after that I got a 28% raise (countered another offer from another division of the same company who had kept my application on file). The point is, the raise alone was more than my entire annual salary teaching. It is sad now, as it was 20 years ago, that teachers are not properly paid and that bad teachers cannot be culled out.
Posted by Rahul Chakravartty - 9 months, 2 weeks, 7 hours, 31 minutes ago

Having higher standards for accreditation is a good idea.

In response to the comment that lawyers should be paid about what masters-prepared teachers get- please note that “masters-prepared” teachers do not have to pay malpractice insurance, usually don’t have overhead costs of running an office, and have attended two years of a less demanding and less selective academic program than attorneys. The GRE is easier than the LSAT, my undergraduate 3.5 GPA was high for the masters program I was in, but only average for the JD program; I have a JD- a “juris doctor”- it is a doctorate, not a masters degree, and the calibre of work demanded to achieve it is more akin to a PhD than a MA. Nevertheless, I acknowledge that teaching is a noble profession and teachers should be paid more, whether they hold a MA or not.
Posted by JVJ - 9 months, 2 weeks, 7 hours, 17 minutes ago

I think teaching is a very important and wonderful profession, but in may places teachers make more money than many of the public service lawyers. Given that the average teacher has speant less time in school, has less debt, there are many more loan forgiveness opportunities available to them as well as the fact that they have much more time off than public service lawyers, I think some of these comments may be misplaced.

As for the topic, I believe that bar passage rates should matter. I believe that people who don’t pass the bar right away can still be great lawyers, but when there starts to be a large percentage of people from a school who don’t pass the bar that starts to look like it is a problem with the school.
Posted by southern law center grad - 9 months, 2 weeks, 7 hours, 7 minutes ago

I attended Southern University and will agree its bar passage rate leaves something to be desired. By the same token, there have been numerous distinguished graduates of the Law Center. Southern is also so much more than simply a law school, it serves as a cultural melting pot for the legal community in Louisiana, an attribute I don’t think many people recognize. The fact is that law school is what you make of it. If you are willing to take an actual interest and learn the law, the faculty at Southern will more than accomodate you. Unfortunately, if you want to slack off and barely get by, the faculty will also let you do that (wrongfully so i might add). The latter group are the ones who take the passage rate down. It should also be noted that Louisiana’s bar exam is unlike any other in that it is entirely composed of essay questions, three days worth!!!
Posted by CB - 9 months, 2 weeks, 6 hours, 48 minutes ago

It’s pretty tough to make money as a non-licensed lawyer, so bar pass rates do matter. However, I don’t really get the argument that lawyers should be paid less. First, despite what it may look like in the ABA journal with its constant emphasis on huge firm issues (really, do I care that 6 and 7 figure lawyers can’t figure out how to dress at the office?) most lawyers I know are struggling financially to some extent. When private universities cease making their law schools into extremely expensive cash cows, maybe that will change the profession somewhat. Until then, most of us just want to be able to service our massive debt and have a life, which generally requires passing the bar. If I had $120k in law school debt AND my school hadn’t prepared me for the bar (AMONG other skills, not to the exclusion of) that would be catastrophic.
Posted by Law Student in Madison - 9 months, 2 weeks, 5 hours, 46 minutes ago

JMG,

I have to disagree with your financial analysis. If being a lawyer didn’t pay so well (for some), those who are in it for the money (I sure as hell am, but that does not mean I don’t care about being a damn good lawyer) would just become investment banker-NOT TEACHERS!
Posted by KLG - 9 months, 2 weeks, 5 hours, 38 minutes ago

CB, you are right on. Most lawyers are not making six and seven figure salaries, especially when they walk out the door of their respective law school. The ABA does seem to focus on and beat to death the 160K 25 year old attorney that either cannot show up for work or does dressed like he or she just walked over to the office from the local bar.
Posted by country boy from northeast la - 9 months, 2 weeks, 5 hours, 3 minutes ago

I am the first to openly admit that i was not a 1st time bar passer..actually it took me five times!!!!!
However, I can steadfastly assert with impunity that the Southern University Law Center prepared me for the practice of law. While we were filled with theory, we had our fair share of the practice of law instilled as well.

To list black institutions whose inception were due in large part to the lack of acceptance in predominantly white institutions as those that would be the first to go is a monstrosity waiting in the wings..(seemingly 3 of the 5)

Although it took me five times to pass the exam, I am just as able to practice as any 1st time passer..and i am more than willing to tango with any person who deems they are better than me within the four corners of any courthouse, book, or document…

Long live the SULC!!!!!!!!!!!!!!!!
Posted by Law Prof at a Decent School - 9 months, 2 weeks, 4 hours, 53 minutes ago

The ABA’s new standard is likely to have some of the same effects as “No Child Left Behind”: schools below the top 50 will feel pressure to teach to the test. Teaching students how to pass the bar is not the same as teaching them how to be good lawyers. We are likely to see more graduates who can recite the Rule Against Perpetuities from memory but don’t know anything about trying a case or drafting a contract, neither of which is tested on most bar exams. Exploring the ethical consequences of legal rules? A luxury. Thinking about what’s good for the country? Not on the bar.

One measurable consequence is likely to be a decline in the number of minority law graduates. Several of the schools at risk turn out predominantly African-American graduates. They take admissions risks to give students opportunities that otherwise would not be available. What school will take up the slack when those schools close? Who will then provide legal services in African-American communities? The problem is not merely at the schools nominally at risk. Even schools in the second tier worry about bar passage. If such schools can reduce accreditation risk by reducing minority admissions, they will feel significant pressure to do so.

How graduates perform on the bar depends, more than anything else, on their own incoming numbers (LSATs and GPAs). It depends somewhat, but not nearly as much, on the school they attend. Ultimately, the long-term effect of the ABA’s proposal should be to limit the practice of law to applicants with LSATs over some minimum threshold (we don’t yet know what that threshold will be). This will limit the number of law graduates, which should make the practice of law more lucrative. This, in turn, will make it possible for the law schools that survive to keep hiking their tuitions. But it will not necessarily make those who become lawyers better lawyers. Nor will it ensure that those who need legal services receive them.

From a pedagogic and societal perspective, I find it hard to defend the ABA’s proposal. I am left with the impression that the ABA finds it convenient to blame a lame-duck Department of Education for a really bad idea.
Posted by MLS - 9 months, 2 weeks, 4 hours, 45 minutes ago

A big problem with this proposal is that some states set target pass rates. It would be a different matter if all states set a target for a passing score and let the chips fall where they may—even if it resulted in a 100% pass rate. That’s not always what happens.

So, what if a school is in a state that sets a target pass rate below 75%? It has problems. UNLV is said to face such issues, as its grads comprise the vast majority of Nevada bar takers and Nevada uses a tough exam to suppress competition. If Nevada wants fewer than 75% to pass, what can UNLV do in this example? It can’t win.

Similar problem in a hypothetical state with school A and School B. School A is a top ten school. School B is an average third tier school. Say that they each contribute half of the state’s bar takers. School A’s students are certain to have a pass rate in the high 90s—credentials are destiny here. If the state is targeting a pass rate, School B may be in trouble. In this situation, School B is stuck in a zero sum game with its high-powered neighbor that it is likely to lose. Even a state-wide target as high as 85% would likely put B below the 75% mark, since B would be contributing most of the failures.

Accreditation should not depend on arbitrary things like a state’s target pass rate or the other schools in the pool. If states were willing to allow extremely high pass rates if warranted, that would be a different story.
Posted by Frederick K. Mermenplatz - 9 months, 2 weeks, 4 hours, 31 minutes ago

Like a previous poster, I attended the “Diploma Factory” also known as Cooley Law.

My entering class was culled by almost half after the first “year” of classes (Cooley works on a Trimester system).

The percentage of dropouts to failouts is unreported.

I studied adequately, drank more-than-adequately (needed it for bodily anti-freeze)and finished in two years.

I felt very secure when I took the S.C. Bar/Bri Course…a lot of “hand wavers” and “ridiculously complex question askers.“

(Strangely, the two that I distinctly remember were not at the swearing in ceremony.)

I attended Bar/Bri for a little over a week, studied intensely for two days, and passed the Bar my first trick out.

Cooley, on the other hand, had a poor showing nationally regarding passage rates.

Hard work does not alone create good output.

Genius does not alone create good output.

Hard work plus Genius sometimes creates good output.

I’m barely employed right now, doing business transactions here and there. I’m not even sure if I’ll be able to afford CLE classes to meet certification by the end of March.

Ain’t life grand?
Posted by A. Adams - 9 months, 2 weeks, 4 hours, 28 minutes ago

Coming from Golden Gate University and passing the bar the first time I have something to say about this. It seems as though for the majority of us lawyers the school we attended acts a a pox. Unless we were lucky enough to be granted admission into one of the elite schools, we feel quite thrown to the side. Large firm jobs are unavailable to us, and we are treated like students in the “special” class.

This is an utter shame, and once people pass the bar it is my feeling that things ought to change. And education is what one makes of it. If you are serious and apply yourself, you will receive an excellent education and have proven yourself once you pass the bar to be on equal grounds with every other attorney in your state.

I’ve known plenty of elite law school grads and certify that other than a score on an LSAT (which means nothing in my opinion as to your ability to do anything except take abstract tests), there is nothing superior to them. Most firms are simply far too lazy or have their heads stuck too far up somewhere to take the time to hire good lawyers as opposed to good lawyers on paper.

The only difference it seems about lower tier law schools is that they have a high percentage of student who cannot pass the bar, but this has little to do with the facilities, faculty, or quality of the education. Simply a function of how selective the school is in admittance policies. Sure you can be a totally elitist school and enroll only those who look good on paper, or you can provide a dynamic learning environment that will allow capable students to succeed. Bar passage rates should only be one, of many factors taken in to consideration when determining a school’s accreditation.

Of course there are those schools among us that should not be in operation, but their numbers pale in comparison to the venerable institutions providing opportunities to the many students who are going to be damn fine lawyers, but just don’t appear that way “pre-law school.“ And that of course is the most extreme of ironies, that your legal aptitude is judged before your first law school class ever even begins.
Posted by JR - 9 months, 1 week, 5 days, 3 hours, 50 minutes ago

The LSAT is a filter, Law School is a strainer, and the Bar Exam is a tool booth…..The entire process smells of cronyism…...
Posted by Eleanor - 9 months, 1 week, 4 days, 16 hours, 27 minutes ago

The bar exam is an complete and utter waste of time because a memory test is not a test of any skill other than memory, and being a good lawyer requires a heck of a lot more skill than that.

The fact that the ABA wastes its time caring about the bar exam one way or another should be cause for concern by all lawyers who care about the status of our profession as measured by the ability of our peers to earn a reputation being able to provide competent legal services.

If the ABA wants to ensure that only well-qualified people can practice law, the focus should be on entrance, not exit exams. If fewer people were able to get into law schools, “diploma mill” law schools would be put out of business. To be clear here, I am not suggesting that the ABA make the LSAT tougher. The LSAT has been proven to have little or no predictive value regarding success in law school, or success in practice, so a much different and much more stringent standard for entering law schools is required to make sure that only competent people are allowed to take on colossal debt before being hit with the harsh reality of too many law grads and not enough jobs. Incidentally, if the focus switched from exit to entrance exams, there would be a lot less moaning from people who have a lot of debt about their inability to find a job at all, or a job better than indentured servitude better known as “contract work.“ Whether you agree with the moaners, or whether you feel that they ought to quit whining is irrelevant here because the fact is that this whining is a terrible stain on the integrity of the legal profession who permits the continuation of the circumstances (too many heavily indebted JDs and not enough job prospects) that lead to the moaning.

It is a disgrace that so many people are misled by shady law schools using pipe dreams of 6-figure salaries, and that all that these law schools need to do to satisfy the ABA is make sure that they convince their students to take BarBri, and to take it very seriously. The fact is that if your law school lured you in using misleading or outright false information about your employment prospects upon graduation - the school’s sense of ethics is highly suspect, and this, along with standards for entering, not exiting law schools, should be the topics to which the ABA dedicates its time and resources.
Posted by Eleanor - 9 months, 1 week, 4 days, 15 hours, 30 minutes ago

Case in point about how useless and irrelevant bar exams are to measuring the competence of prospective attorneys is a comment posted by “JMG,” comment #4. Here is a person who “crushed” two bar exams, yet still makes seriously stupid arguments, which, in our profession, makes me question this person’s competence. JMG argues that having more second rate law schools will drive down lawyer salaries, allowing more people to be able to afford legal help.

The problems with this argument are as follows:

1) as we all know, more law graduates (even those that pass the bar exam) does not mean more practicing lawyers because what most people complain about when they graduate from a lesser regarded school is their inability to enter law practice and the general lack of jobs for new graduates from lesser schools.

2) More expensive second rate law schools means people graduating will not accept a public sector job ($) over one in the private sector ($$$$) (legal or other field), which means legal services will not be more available to those who cannot afford them if there were more law schools around.

3) Ignoring problem 1, let’s assume, for the sake of argument, that more new law graduates actually would mean more jobs for new graduates and therefore more actual competition between lawyers for clients. This could, hypothetically, lower the prices attorneys charge for their services because higher supply generally does lead to lower prices. Here, JMG is right that more people would indeed leave the legal profession – although JMG forgets that they would leave due to inability to pay back their school loans (see 2), above). And, JMG is flat wrong suggesting that these people would leave to teach. Rather, as comment poster #11 correctly points out, these people would become I-bankers, needing to make money (see 2), above). But in any event, when people leave the legal profession, the competition decreases, and the prices lawyers charge for their services goes right back up again.

4) I do not understand how more second rate law schools can lead to the proliferation of affordable legal services. Also, I do not understand how a person who graduated from law school and passed two bar exams which supposedly tested his competence to make half-decent arguments – can posit such profoundly unreasonable assertions and still be permitted to practice law.

My point here is that I seriously worry that the ABA’s priorities regarding bar passage rates are dangerously misplaced. Please see the previous post.
Posted by JEAN DEWALD - 9 months, 1 week, 3 days, 5 hours, 9 minutes ago

I AGREE WITH JMG FROM THOMAS COOLEY. I HAVE A SOLO PRACTICE OPERATING OUT OF MY HOME AND I CHARGE ABOUT ONE-THIRD OF WHAT OTHER LAWYERS CHARGE. AS A RESULT, WORD-OF-MOUTH ADVERTISING HAS GIVEN ME A BUSY LAW PRACTICE. I DON’T MAKE MUCH MONEY, BUT I HAVE AN INTERESTING LAW PRACTICE AND I AM QUITE HAPPY.

ALSO YOU MAY LIKE TO KNOW THAT I WAS 60 YEARS OLD WHEN I ENTERED LAW SCHOOL. IT WAS CALLED DFW SCHOOL OF LAW, A NIGHT SCHOOL, AND WAS NOT ACCREDITED. WE OBTAINED SPECIAL CONSIDERATION BY THE TEXAS SUPREME COURT AND ALLOWED TO TAKE THE BAR EXAM BEFORE ACCREDITATION. THE SCHOOL EVENTUALLY BECAME ACCREDITED. I PASSED THE BAR THE FIRST TIME I TOOK IT TO EVERYONE’S SURPRISE. THIS WAS IN 1994. I AM NOW 79 AND STILL WORKING. MY CLIENTS ARE MOSTLY LOW TO MIDDLE INCOME BUT I HAVE A FEW WEALTHY CLIENTS, ALSO. I DON’T SPECIALIZE IN ANYTHING BUT PAYING MY BILLS. CREDITATION BY THE TIME I GRA
Posted by Garrett Simulcik - 9 months, 1 day, 3 hours, 53 minutes ago

I agree that law schools are the biggest scam artists in the education world. It goes something like this: you break your eggs for three years or more, your completely stressed out, without a social life, cynical and hating life. Then you graduate, and your up to your eyeballs in debt. If that’s not enough, you have to study for the bar exam (maybe two). If you pass, then you settle for a job paying a salary that you could have easily received out of college without a law degree (and without the debt and stress). Sound familiar?

With that said, I do not understand what law schools have to do with the bar exam. The way I studied for the bar exam, was to forget everything I learned in law school! The reason why many smaller firms pay such crap (other than the fact that lawyers are the cheapest s.o.b.s I have ever met) is that most people graduate law school without a clue of how to be a lawyer. It takes too much time to train someone new, and years before reaching their billing potential.

What the ABA needs to do, is to encourage law schools to teach students not just how to think like a lawyer, but how to BE lawyers (i.e., practical things like filing a motion).

IF any law students or potential law students are reading this - GET OUT NOW, while you still can!

Commenting is not available in this weblog entry.

ABA Journal - Law News Now

Law Schools