As I noted here, the Southern California Institute of Law sought to challenge a requirement that it disclose the bar passage rate of its graduates. The San Francisco Chronicle reports that the judge was not too impressed with this argument. SCIL’s attorney says the school may appeal. More from the WSJ Law Blog and ABA Journal. [...]
The WSJ Law Blog reports that the Southern California Institute of Law claims that it cannot be required to disclose the bar passage rate of its graduates as a condition of accreditation. Such a requirement, SCIL claims, runs afoul of the First Amendment.
Southern California Institute of Law is suing bar association officials for requiring that it include information on its website advising students where they can view exam passage rates online.
The school argues — in a federal lawsuit filed February — that the rule infringes on its speech rights. It claims that it forces them to endorse the notion that a school’s exam passage rate reflects the quality of its legal education. SCIL thinks one has nothing to do with the other.
“[D]efendants have no right to foist their ideology onto SCIL and compel it to refer or disclose bar passage rates of its graduates,” the school stated in a legal brief last week. . . .
None of the 43 SCIL graduates who took the 2012 California Bar Examination passed, according to state data. Over the course of a dozen test cycles between 2007 and 2012, SCIL graduates failed 93% of the time, the defendants claim.
“There are good years, and there are bad years when it comes to bar passage,” said SCIL’s attorney, George Shohet. “It’s not something that the school can control.” He said going to law school and passing the bar require “different skill sets.”
Note that SCIL is not objecting to a particularly detailed dislcosure. Rather, according to the above report, it objects to having to post the following statement on its accreditation page:
For information relating to bar pass rates, on this school and other CBE-accredited law schools you may consult http://admissions.calbar.ca.gov/Examinations/Statistics.aspx
Law students thinking ahead about not just passing the bar exam, but also the fitness and character requirements might take a lesson from a former student of mine. He contacted me with some alarm a few days ago to tell me that the Virginia bar committee that has to approve fitness and character of applicants had expressed concern in his case on account of a large number of traffic citations. Not unpaid tickets or parking tickets, or anything as serious as a DUI – simple speeding, in nearly all cases caught by automatic cameras in DC. How many? Nine in the past 18 months – he says many for the same stretch of DC road caught in the middle of the night by automatic radar/camera.
I don’t think this will cause him problems in the end, but it’s not something one wants to have a discussion about with the bar fitness and character committee either. I’m submitting a special character reference about his general sense of responsibility and law-abiding nature. Anyway, word of caution to law students looking down the road to getting sworn in. (At least until self-driving cars take over DC roads and remove temptation; some commentators see a future in which insurance companies give lower rates to self-driving car users, precisely to remove these kinds of issues, once the insurers conclude that on balance the robot car is safer.) [...]
This Friday at 4 PM, I will be on a panel on reform of the licensing system for lawyers at the University of Washington School of Law, in Seattle. I will be joined by Paula Littlewood, Executive Director of the Washington State Bar Association, and University of Washington law professor Thomas Andrews. The panel is sponsored by the University of Washington Federalist Society and – I believe – the Washington State Bar Association.
I will argue, as I have previously at the VC, that the public interest would be best served by deregulating the licensing system, including abolition of the bar exam and elimination of the requirement that lawyers must attend three years of law school. At the very least, I will explain, we should allow people to enter the bar after “reading law” or apprenticing with a current practitioner, as was common in the 19th and early twentieth century (this is how Abraham Lincoln became a lawyer, among many others). Such reforms can drive down the cost of legal services for consumers and also make it possible for people to enter the legal profession without a vast expenditure of time and money. It will, of course, be important for consumers to have information available to them about the quality of legal practitioners. But that can be done in many different ways, without perpetuating today’s guild-like licensing system. [...]
Brookings Institution scholar Clifford Winston recently published a good column advocating the abolition of legal requirements mandating that all lawyers must graduate from law schools and pass bar exams:
For decades the legal industry has operated as a monopoly, which has been made possible by its self-imposed rules and state licensing restrictions — namely, the requirements that lawyers must graduate from an American Bar Association-accredited law school and pass a state bar examination. The industry claims these requirements are essential quality-control measures because consumers do not have sufficient information to judge in advance whether a lawyer is competent and honest. In reality, though, occupational licensure has been costly and ineffective; it misleads consumers about the quality of licensed lawyers and the potential for non-lawyers to provide able assistance.
Rather than improving quality, the barriers to entry exist simply to protect lawyers from competition with non-lawyers and firms that are not lawyer-owned — competition that could reduce legal costs and give the public greater access to legal assistance….
What if the barriers to entry were simply done away with?
Legal costs would be reduced because non-lawyers, who have not had to make a costly investment in a three-year legal education, would compete with lawyers, who in many states are the only options for basic services like drafting wills. Because they will have incurred much lower costs to enter the field — like taking an online course or attending a vocational school — and can operate as solo practitioners with minimal overhead, these non-lawyers would force prices to fall. The poor would benefit from the lower prices for non-criminal matters, and poor litigants, who might be unrepresented in criminal matters like hearings because they could not afford a lawyer and because of dwindling state legal aid, would be better off.
With U.S. News rankings due out tomorrow, I thought I’d repeat part of a post from two years ago.
First, U.S. News has several methodological problems. E.g.:
Consider how U.S. News ranked part-time programs [for the first time in 2009]–it sent out a survey asking professors and deans to list fifteen schools with outstanding part-time programs. I am rather confident that no more than a tiny percentage of those who responded to this question are familiar with the particularities of different schools’ part-time programs. Unlike some of our worthy competitors, for example, at George Mason (ranked 5th in the part-time rankings) ALL tenured and tenure-track professors teach in the evening, and evening students are eligible for all students activities including law review. I can’t imagine why a professor at, say, Valparaiso Law School, would be aware of such details, but U.S. News didn’t bother to even attempt to take such factors into account. [As suggested below, the best way to rank the relative desirability of part-time programs is by the LSAT scores of matriculating students.]
Advice for prospective law students:
There are three groups of law schools: the handful of truly “national” law schools, which place almost everywhere; the somewhat larger group of “strong academic” law schools, which place many graduates regionally but also have the reputation to get you a job elsewhere with a little legwork; and the regional law schools, which don’t have placement pull nationally but place their grads locally, often with great success. If you have been admitted only to regional law schools, rankings and the such should be almost entirely irrelevant to you; you should be attending law school in the city in which you would like to live and practice.
The only ranking you should consider with any seriousness:
If you must rely
In a thoughtful response to my recent post on the bar exam, prominent criminal lawyer Nathaniel Burney agrees with my view that the current bar exam system is flawed, but argues that the best solution is to adopt a new and better exam:
We are not fans of the bar exam, either, but we think the solution is not to abolish the exam, but more and better bar exams…. Nobody in their right mind believes that the bar exam is a reliable indicator of who is going to make a good lawyer. It doesn’t test judgment, reasoning or understanding. More importantly, it doesn’t test actual skills that lawyers need to know….
Instead, the bar exam should be replaced with a series of exams for something along the lines of board certification in medicine. You want to practice criminal law? Someone’s life and liberty is going to be on the line. You’d better prove you know what you’re doing, and get bar-certified to stand up in a criminal courtroom. Or you say you want to be a transactional lawyer? People’s assets and livelihoods will be at stake. You’d better be able to prove you know how to put together a deal that does what the client needs, and get bar-certified.
Burney’s proposed exam system might well be better than the status quo. But I see no reason to believe that bar associations would ever adopt a system whose goal is to protect consumers rather than advance the interests of incumbent lawyers. Even if the bar exam were written by a more objective body, it would still be vulnerable to “capture” by lawyers, and still likely to be inferior to market mechanisms as a means of weeding out bad attorneys.
I. Why Bar Associations Can’t be Trusted to Run Mandatory Bar [...]
There is a good reason why some Yale Law School graduates fail the bar. They do not learn enough law in law school to carry them through the tedium of the bar examination. It is a real black mark against my alma mater (class of 1968) that so many of its students do not take enough core courses to know law. It is also a mistake to think of the law as a set of senseless rules. The students who fail the bar can’t work with any set of rules. There are virtually no students at the top of the class who don’t pass the bar.
John Yoo disputes Epstein’s position:
[J]ust because Yale doesn’t train practicing lawyers doesn’t mean that a) law schools in general are good at it, or b) that the bar exam has any real relationship to one’s success as a lawyer. Most students no matter where they go, I believe, pay thousands of dollars after graduation to attend cram courses to prepare for the bar exam. Only a hardy (or foolhardy) few, I bet, dare take the bar based on what they learned in school….
[The bar exam] has little to do with whether someone will make a good lawyer. I knew someone in law school with a photographic memory — he could recite exactly the text of a case after reading it once (or, more importantly, the pages from a cliff notes summary of the case). But he couldn’t adapt that memorized rule to a new set of facts, which is what law practice will require; his mind didn’t work that
At the Brennan Center for Justice, Elizabeth Wurtzel makes the case for abolishing the bar exam:
In 2005, Kathleen Sullivan, then dean of Stanford Law School, took and failed the California bar exam. After many years in legal academia—Ms. Sullivan literally wrote the book on constitutional law—she was going to practice law and needed a license. Ms. Sullivan has since passed the bar and is a very successful appellate attorney…. If the bar exam was meant to be more than an empty and painful ritual, if the American Bar Association was anything more than an absurd and fusty guild, when Kathleen Sullivan failed the bar, bar administrators might have used Sullivan’s failure to pass the test as the occasion to ask whether, perhaps, something is wrong with the exam and process of bar admission. After all, if the results of the bar exam were meant to matter—if it were meant to predict the likelihood of success as a lawyer—the failure of a great legal mind ought to alarm the people in charge….
But nothing changed.
And there’s a long, proud tradition of gifted attorneys who failed the bar, at least on their first try. Hillary Clinton, Michelle Obama, Franklin D. Roosevelt, Jerry Brown—who is now California’s attorney general—all screwed up once, as I discovered when I myself failed. Both Pete Wilson, the former governor of California, and Antonio Villaraigosa, the current mayor of Los Angeles, took the bar four times; Benjamin Cardozo, one of the greatest justices of the Supreme Court, sat for it six times. Harold Ford Jr. still has not managed to pass the bar in Tennessee—a State in which the curve cannot be terribly dangerous—but that didn’t keep him out of Congress, though he’s been less lucky with the Senate.
Given this simple data point—that many