Bar Exam

Does California make it too difficult to pass the bar? Two profs link low scores to ethics issues

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In California, would-be lawyers have to receive a score of 144 on the multistate portion of the bar exam to pass. That’s a higher threshold than in every other state except Delaware.

Law schools in California say the state’s so-called “cut score” is too high, the Wall Street Journal (sub. req.) reports. If California had used New York’s passing score of 133 for the exam last July, 87 percent of graduates from ABA-accredited law schools in the state would have passed, compared with 62 percent who actually did.

Among all test takers, 43 percent passed last July’s exam, and only 35 percent passed in February.

“One camp of law-industry watchers blames the drop in passing rates on the declining credentials of incoming classes.” the Wall Street Journal reports. “Others point to changing study habits of millennials, who grew up with the ability to find information at their fingertips and aren’t accustomed to the intensive memorization and writing skills needed to pass a bar exam. Law schools point to the test’s required score as the problem.”

Twenty law deans at ABA-accredited law schools in California asked that state’s supreme court earlier this year to lower the grade required for bar passage, according to the Wall Street Journal and a story published in February by the Recorder (sub. req.). The court is considering the issue.

To help guide the court, the state bar is working on a series of studies. Two Pepperdine University law professors, meanwhile, released their own study this week concluding that California lawyers with lower bar exam scores were more likely to face disciplinary action by the state bar.

The professors, Robert Anderson IV and Derek Muller, collected discipline records and law school information on lawyers who were admitted to practice in the state between 1975 and 2006. Anderson and Muller didn’t have access to bar exam scores, so they used law school information to estimate the lawyer’s LSAT score, and used that to predict bar exam scores.

The professors validated their inferences about law schools and bar exam success through data about law school bar pass rates released in 2016 by the state bar.

The professors also noted that lawyers admitted in December, almost all of whom passed the bar exam on the first try, had a discipline rate of about 4.7 percent at 35 years. Those admitted in June, more than half of whom are repeat test takers, have a discipline rate of about 9.1 percent at 35 years.

The Ginger (Law) Librarian notes the Wall Street Journal story and suggests the test should emphasize legal research, rather than memorization.

“As a very basic example,” the blog says, “if the test-taker spots a potential negligence issue, why should the test taker also have to memorize all of the elements (and sub-elements) of negligence? In practice, lawyers research the elements.”

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