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Denver University Bar Passage:

The University of Denver's Sturm College of Law recently concluded a study of the unacceptably high bar exam failure rate of many of its graduates. (Summary here.) The study found that students whose LSATs were in the bottom 20% of admitted students, and whose first-year grades were in the bottom 20%, were very unlikely to pass the bar. The administration has implemented a program to address the problem, but the professors who conducted the bar exam passage study are skeptical. Professor Sam Kamin writes:

The data that Professor Joyce Sterling and I have collected on more than 2,000 DU graduates indicate that curricular and extra-curricular choices that individual students make -- whether to take bar classes, whether to do externships, whether to participate in the student law office, etc. -- have little if any significant impact on their bar exam success. Thus, I am concerned that some of the proposed solutions -- principally requiring more bar classes and in-class exams -- will have no impact on bar passage and might mislead students into believing that this complex problem has a simple solution.

Professor Sterling and I found that the best predictors of poor bar exam performance are very low LSAT scores and low law school grades. Thus, the data indicate that instead of making broad curricular or pedagogical changes, the most likely path to improving our bar pass rate is to cease admitting students without a substantial likelihood of bar exam success, to identify at-risk students among those admitted, to help them develop the skills they need to succeed in law school, and to fail out those that we cannot find a way to help.


UPDATE: A commenter asks for DU's ranking. According to the latest U.S. News & World Report ranking, DU is in a tie for 95th place. Although it's not top tier, it is ahead of dozens of other law schools, many of which, I suspect, also have abysmal bar passage rates for the bottom 20% of their students.

Pooh (www):
So, let me make sure I get this, the least qualified students who perform the worst are less likely to demonstrate minimum standards of competence afterwords? Ground breaking.
1.3.2006 8:00pm
Cornellian (mail):
People with lousy LSAT scores and low grades are unlikely to pass the bar exam? Somehow that doesn't strike me as a particularly profound insight, nor do I see why this is a "complex problem." One option would be just not to admit such students in the first place, but since one may wish to pursue a law degree without intending to practice law, I think the better approach is just to be up front with such students about their chances, make available such assistance as one can, and let them make their own decision about whether law school (or this particular law school) is a worthwhile investment.
1.3.2006 8:07pm
John Jenkins (mail):
Some people just aren't cut out for law school or lawyering (I am reminded of the woman who cried the first time she got called on our first week of law school and left quite soon after that). Somehow I am not surprised that the changes intended to increase the bar passage rate don't coincide with the actual study. The study seems to indicate that some people lack aptitude for law and I'm not sure modern pedagogy (if you care to call it that) actually believes in aptitude anymore.
1.3.2006 8:12pm
Kazinski:
Where does Sturm college rank among Law schools? If it is one of the elite like Harvard, Stanford and UCLA (yes, I saw Eugene's post bragging about how UCLA beat Stanford's Bar exam success rates), then the fact its bottom 20% can't pass the bar, would mean something completely different than if it is a marginal school, or middle of the pack, and its bottom 20% can't pass the bar.

I don't want to open a can of worms here, but it would also be useful to know if Sturm has an affimative action program and what percentage of students in the affirmative action program failed the bar.
1.3.2006 8:19pm
Been There Done That:
The REAL reason that the law schools are spinning their wheels about this is that a disproportionate percentage of the "affirmative action" and "diversity" candidates are in the group with low LSAT scores and low law school grades.
1.3.2006 8:21pm
Harriet Miers' Law Partner:
All very interesting, I am still waiting for a post about the Stanford dean failing the bar exam. Professor? Anyone? Anyone?
1.3.2006 8:31pm
John Jenkins (mail):
Before you can make a claim like that, you'd have to actually SEE the data. Just alleging it doesn't make it so.

Looking at that summary, it seems that the following are most important (and seemingly not dealt with in the proposed solutions).

-Grade inflation leading to students thinking they are better prepared for the bar exam than they really are.

-Failure to dismiss students who are not making satisfactory progress in law school.

-Statistical analyses indicating that the bottom 20% of the class after first year are unlikely to pass the bar regardless of the course of study.

-Lower LSAT students not being given enough extra assistance early and not being dismissed later when it is apparent they have not performed in a satisfactory manner and likely will not pass the bar.

It seems like raising the LSAT minimum and enforcing a mandatory curve in the first year along with dismissing anyone below a certain GPA level (it's C- where I am) would solve most of their problems. None of those were listed as solutions, though low achievers must "consult with the Academic Dean or Dean of Student Affairs to discuss their situation and make a plan for improvement." Gag me.

The upshot is, "we want the tuition from these people, but they are making us look bad so how can we look like we're doing something without losing the cash?"
1.3.2006 8:35pm
Dave Hardy (mail) (www):
Well...

1. News that folks who have trouble getting into, or passing out of, law school have trouble passing the bar is indeed not shocking.

2. Back when I was a young pup (cough, hack) in the 1970s, there were some antitrust suits against Bar assns. Theory was that the task of bar admissions was to restrict entry into the trade, not to set a minimum standard of skill. Proof (as best my sclerotic brain can recall) was that bar pass rates within a given state were uniform, year to year -- and inference was that they just passed the top 70%, 80%, whatever. I know that in my year there was a little problem with the ethics portion. They "hid" one of the five questions inside a seemingly pure evidence question. I saw it, but my informal poll indicated that about a third of people didn't. Since getting a zero on one out of five should have killed you, a full third should have flunked that ... yet the failure rate was no different than any other year.
If that's the case, you could take the bottom 20%, or 50%, or any other proportion, reject them, and bar pass rates would remain the same. A certain expected and customary proportion would be skimmed off and flunked no matter if they were composed of people picked off the streets, or of editorial boards of the top ten law reviews.
1.3.2006 8:39pm
The NJ Annuitant (mail):
Now, what would be very interesting would be data showing which is more predictive of poor bar exam performance : low law school grades OR low LSAT's. I would bet that low law school grades are more predictive: preparing for the MBE is not totally foreign to the law school experience.
1.3.2006 8:43pm
John Jenkins (mail):
I don't know how it's done in other states, but here there is a set score you have to achieve and if you do, you pass the bar. The number of takers doesn't affect how many people pass other than setting the obvious maximum.
1.3.2006 8:43pm
Henry Schaffer (mail):
The first item on the list of reasons was, "The failure to require 6-7 courses in law school which are tested on the bar exam".


Being first on the list may or may not imply importance, but probably does imply that it is a significant aspect of failure to pass the bar.


This should be a rather easy one to fix.

1.3.2006 8:56pm
Charles Chapman (mail) (www):
Not to be a party pooper ;), but I'm not sure UCLA's bar passage performance is really so impressive. I say that as a UCLA Law alumna.

It may reflect a difference in emphasis teaching at UCLA. I seem to recall that when I went to school there (early 80s), UC Davis consistently had the highest bar passage rate among state schools. As I recall, the standard "UCLA explanation" (at least among students) was that UC Davis made a point of teaching California law (the law school equivilent of "teaching to the test"), while UCLA, having aspirations of being a "national" law school, did not. That is, UCLA taught "national" common law (e.g., "the majority rule says," "the minority rule says," "the restatement / model [fill in] code says").

I wonder if there has been a change in emphasis. I really have no idea. Just speculating.
1.3.2006 8:57pm
Bruce Hayden (mail) (www):
Knowing one of the law profs at DU who is always raging on this and related matters, I think that the schools problem is two-fold. First, they, and the Business School, are run as quasi-profit centers, essentially financing the rest of the University. Add to this financial load, that they have brand new facilities, having moved to DU's main campus after better than a century of independence. The result has been a significant increase in class sizes in the last couple of years - at the obvious cost of admitting ever more marginal students.

Secondly, they have been pinched for a number of years between the desire to admit many more minorities, and that of many higher tier universities to do the same. The result is that the quality (and, thus, bar pass rate) of the admitted minorities has plummetted much faster than that of the non-minority admittees.

One problem with anonymous grading is that it is hard to cover up the minority quality problem without grade inflation. And remember, they are trying to essentially make money, so flunking out too many students would be bad for the bottom line (as noted above, the University as a whole is non-profit, but the law school is run as a profit center to finance the rest of the school). Minority flunk out is apparently still a problem, even with grade inflation.
1.3.2006 9:02pm
anonanonanon (mail):
Charles,

I may be wrong but I thought that California urrently tests for state law only on the Community Property setion, so I don't think the state vs. national issue has much relevance today.

It is commonly said that the lower the rank the more the curriculum is geared diretly toward bar passage.
1.3.2006 9:02pm
Charles Chapman (mail) (www):
Cornellian said:<blockquote>One option would be just not to admit such students in the first place, but since one may wish to pursue a law degree without intending to practice law, I think the better approach is just to be up front with such students about their chances, make available such assistance as one can, and let them make their own decision about whether law school (or this particular law school) is a worthwhile investment.</blockquote>I would assume that University of Denver's law school is subsidized by the state. If so, I think that the bar passage rate may not be a matter of concern solely to the student and the law school. State taxpayers and/or the legislature may (or may not) believe that the purpose of the subsidizing the law school is to produced licensed attorneys who can represent people, protect the innocent, produce justice, etc. (don't laugh). If so, an "informed consumer consent" theory may not be sufficient where the consumer is subsidized and there are therefore externatalities.
1.3.2006 9:04pm
Nobody Special:
Seeing as I recently passed the bar exam that Kathleen Sullivan failed, I just have to say that the "UCLA defense," as posted above, is pretty nonsensical.

There's hardly any California-specific law on that sucker, although they're adding Cal Civ. Proc. in 2007.
1.3.2006 9:10pm
Charles Chapman (mail) (www):
anonanonanon said:

I may be wrong but I thought that California urrently tests for state law only on the Community Property setion, so I don't think the state vs. national issue has much relevance today.
You may be right. Perhaps something else has changed, or I'm misremembering. Perhaps the old argument (excuse) was that UC Davis taught, or required, more "bar" courses. Given my (perhaps faulty) memory, I found it interesting to see that UC Davis now ranks #9 on the list. I would have sworn that in the early 80s UC Davis was #1. Perhaps my memory deceives me.
1.3.2006 9:12pm
Charles Chapman (mail) (www):
Cornellian said:
One option would be just not to admit such students in the first place, but since one may wish to pursue a law degree without intending to practice law, I think the better approach is just to be up front with such students about their chances, make available such assistance as one can, and let them make their own decision about whether law school (or this particular law school) is a worthwhile investment.
I would assume that University of Denver's law school is subsidized by the state. If so, I think that the bar passage rate may not be a matter of concern solely to the student and the law school. State taxpayers and/or the legislature may (or may not) believe that the purpose of the subsidizing the law school is to produced licensed attorneys who can represent people, protect the innocent, produce justice, etc. (don't laugh). If so, an "informed consumer consent" theory may not be sufficient where the consumer is subsidized and there are externatalities.

[Reposted because the "blockquote" didn't work the first time.]
1.3.2006 9:14pm
Hattio (mail):
I took the bar exam only just over two years ago. Anybody else have the feeling that the MBE portion was really just tested your test-taking ability and not so much your knowledge? What that means, is that any high intelligence person should be able to pass the bar exam (including the essay portions) depending on how their state weights the two (assuming a lot of studying as well as intelligence of course).
1.3.2006 9:20pm
Dave Hardy (mail) (www):
I took the bar exam only just over two years ago. Anybody else have the feeling that the MBE portion was really just tested your test-taking ability and not so much your knowledge?

Two amusing points on the multistate (again, dating to the 1970s):

In my time, in Arizona, the passing score on the MBE was 50%. Reason: they had just released an older exam with proper answers. The chief justice of the state supreme court took it, and checked against the answers ... he got right around 50% and would have flunked. The next time the salesman for the MBE came in, he got an earful. And thus for at least some years, the rule was that if you could do as well as the Chief Justice, you passed.

A classmate's wife, who was (as I recall) an elementary teacher, took sample, exam ... and passed with a rather nice score. That inspired her to enter law school, and she's a prosecutor today. Yes, an intelligent person, with the ability to "take a test," was able to pass without a day of law school, and no legal training save talking to her husband as he went through law school.
1.3.2006 9:30pm
keith_hilzendeger:
From the Colorado Supreme Court:

Information on the July 2005 bar exam pass rates, sorted by law school.
1.3.2006 9:42pm
Jamesaust (mail):
If I recall correctly, Denver University is not a state school but a private institution. As it is an urban school only about an hour from UC at Boulder, I suspect it attracts many non-traditional students and may well have a night program. I'm fairly certain that if you are a Colorado resident and have decent LSAT scores, you are far more likely to be in Boulder rather than Denver.

One interesting aspect that might distinguish Denver is that Colorado has a very "progressive" bar exam, requiring a unique problem/project. I don't remember all the details but I believe it is a packet with some interesting client in which one evalutes information given, write some petitions, etc. If memory serves, this project takes up 1/2 or even a whole day of the exam. How might this aspect relate to the problem? Might this type of project me more suspectible to in-school preparation?

Finally, if there is any more than a weak link between lawyering abilities and bar exam results, I've never seen evidence of it. General intelligence seems more predictive.
1.3.2006 10:08pm
SR:
The Bar exam does not test the ability to practice law, nor even the minimal competence to practice law. Robert MacCrate, in a report for the ABA that is considered the most authoritative study of the subject of the skills necessary to be a competent lawyer, found 10 skills that are fundamental to good lawyering. (excerpts of the report are online here) He notes that the Bar exam tested only two of those skills (in almost all jurisdictions the exam has added the MPT component as a result of the critique increasing the proportion of fundamental lawyering skills tested on the examination designed to test minimal competence to 30%). A rich literature of studies has grown that shows that performance on the Bar exam is most correlated to performance on law school exams, as well as the LSAT, rather than to any real world measure of the ability to practice law. For this reason it is no surprise that accomplished lawyers like the former dean of Stanford would fail the Bar.

Many of the commentators here seem to uncritically accept the notion that law students who do better on exams that stress memorization and time pressures will do better in a profession that stresses research and due diligence. The assumption has no basis in reality.

I also think that the solicitude for the tax-payers of Colorado — who may just be throwing their money away to subsidize the educations of students who do not pass the Bar on their first try — is misplaced. National statistics show that over 90% of exam-takers pass the Bar by their third try, so those taxpayers will probably still get their money's worth.
1.3.2006 10:30pm
A. Zarkov (mail):
Shame on DU for admitting students and retaining students who it knows have a poor chance of passing the state bar. I don’t see why anyone would want to attend law school and pay all that tuition with little chance becoming licensed. What kind of a career requires law school, but no license?
1.3.2006 10:33pm
Mr. J (mail):
SR,

Definitely the most intelligent post on here. For some reason, it seems that many commenters just don't get it. As you have mentioned, these silly tests are about memorization and regurgitation, not about diligent and careful lawyering. The commentators suggesting weeding out students or speculating about the supposedly harmful affects of affirmative action should NOT be taken seriously since they failed to address the issue of whether the bar exam itself is useful. If the bar exam tests mostly useless memorization and regurgitation ability, it doesn't say much about those who pass it other than that they are good monkeys. Why not have a bar exam that actually means something??? It is a pretty strange world when Harvard Law School and other elite schools have some students who fail the bar. Why waste so much time, energy, and money on a useless system?

I think the answer lies with some of these commentators. They just ASSUME that somehow passing the bar means something, and thus inertia and the irrational status quo are perpetuated. Sometimes, I think we live in a bizarre world when such obvious problems are not addressed. I guess that is the power of inertia.
1.3.2006 11:01pm
Pooh (www):
SR is of course right, the bar exam mostly measures ones ability to take the bar exam. But I wonder if the predictive power would be improved if it wasn't simply a test with binary results.
1.3.2006 11:12pm
John Jenkins (mail):
Mr. J, just because someone agrees with you doesn't make them intelligent (or right). Given the system we have, students who want to be lawyers have to pass the bar exam in their state to do that. If you have a reliable predictor of bar passage and you ignore it, then you are doing a disservice to your students (at least those who want to be lawyers). The question presented has nothing to do with the utility of the bar exam as such. Given that the general feeling is that law school (1) doesn't prepare you to pass the bar and (2) doesn't prepare you to practice law, it seems plain that DU is doing SOMETHING wrong (along with most other schools).

Many of the commentators here seem to uncritically accept the notion that law students who do better on exams that stress memorization and time pressures will do better in a profession that stresses research and due diligence. The assumption has no basis in reality.

Not necessarily so. The Bar exam does reward diligence in preparation. People who fail it are usually those who did the least to prepare and put the least effort into it. To the extent they take that beyond the exam, it is an effective proxy for diligence.

In a perfect world, there would be no bar exam and the market would determine qualifications. That's not the world we have, and until we get there, students will have to pass the bar exam and law schools that admit and advance students whom the law schools know will not be able to pass the bar exam are not serving their students well.
1.3.2006 11:24pm
unhyphenatedconservative (mail):
"In a perfect world, there would be no bar exam and the market would determine qualifications."

I've noticed that on a lot of conservative/libertarian blawgs the authors are all for free trade, so long as it only costs the wages and jobs of lower skilled workers. I've not seen any of them get wroked up about the protectionist nature of te Bar.

Yes, yes, I know that they will say the bar serves a greater function than simply helping to keep low price competition from entering the market upon threat of imprisonment. But anyone who's practiced for any length of time knows enough schlubs who test well to know that the Bar is imperfect at this test, to put it charitably.
1.3.2006 11:48pm
SR:


The Bar exam does reward diligence in preparation. People who fail it are usually those who did the least to prepare and put the least effort into it.


I disagree (and I wonder where you get your information that those who fail the Bar put the least effort into peparation). Certainly diligence in preparation helps in passing the Bar Exam, it certainly doesn't hurt. But diligence, studying, and bar review courses are neither necessary nor sufficient to ensure first-time passage (which remember is what many of the studies that virtually all law schools do to assess their performance.) I was not all that diligent in my preparation for the exam, but I passed. And many people I know were very diligent in their studies but failed on their first attempt.

Diligence is only one aspect of being a good lawyer. Communication skills, research, and negotiating skills are all similarly left untested by both the bar and most law school exams.

Further, the Bar exam is not just an arbitrary impediment to the entry into the practice of the law, it has well-documented discriminatory impact. Luckily the majority of people who have the perseverance, skill and luck to make it through the training of law school eventually gain admittance to the Bar despite the arbitrary bar to their passage.

I don't think that DU is doing a disservice to their admitted students who score in the bottom 20% of their LSAT distribution by allowing them to complete their studies. The only disservice that they may be doing (and I am not saying that they are) is to stigmatize them and give them inadequate support (this occurred at my law school). It is sad to say that Prof. Kopel and some of the commenters on this thread may be doing the same.


1.3.2006 11:55pm
Brian G (mail) (www):
U of Denver is a profit-hungry joint. Not that there is anything wrong with that, but what do they expect when the admit anyone who will pay their outrageous tuition? I guess throught the LSAC they got my address (I was in Arizona then, so I'm sure it was in their region) and they sent me brochures, flyers, you name it, and it seemed like every other day. It was so annoying I called them directly to complain.

Anyway, just look at the ridiculous number of students, about 5-6 times what my school has in each class. I'll bet the students there couldn't get 5 minutes with a Prof for a sit down about res judicata, CE, and interpleader for 45 minutes like I had 3 days before finals. And, my first yeart Torts, Contracts, and Crim classed had about 35 people in them. I'll bet U of D had 350.

Bottom line: The bar is the great equalizer, and forces you to actually learn something in law school. Denver has only one option: lower their class size. Of course, with that type of $$$ at stake, you can forget that.
1.4.2006 12:28am
Dem:
I agree with the criticisms of the bar exam and think it should be done away with. But, so long as its around, high bar failure rates should be a concern for any law school. One thing that I didn't see mentioned so far--perhaps I missed it--is the DU failure rate relative to the failure rate at comperable schools.

It isn't surprising that the DU students with lower grades and LSATS have lower bar passage rates--after all, it isn't likely that those students test well (side note: I think there is a huge difference between testing well and having the skills a good lawyer needs.) The question is: how do the DU students with low test scores and low grades compare to students at peer schools who came in with similar LSATs and have similar class rank. If the DU failure rate is much higher than those of its peers, it seems to me that it is safe to assume the school can do things to close that gap.
1.4.2006 12:40am
Freder Frederson (mail):
I went to law school at Georgia State University. At the time I went ('89-'92) it was a relatively new law school (less than ten years old) and was the easiest ABA accredited law school, in terms of LSAT and GPA, (didn't actually get full ABA accreditation 'til my second year) of the four ABA accredited law schools(the others are Emory, University of Georgia and Mercer) in Georgia to get into(at the time Georgia still had state accredited schools that matriculation from allowed you to take the Georgia bar but not in other states, they have since been eliminated). There was both a part and full time program and you could take day and night classes. Yet for the three years I was there and my graduation year, the motley collection of "inferior", low performing students from this upstart school had the highest first time pass rate for the Georgia Bar.

Mercer was always several points lower than the other three with pass rates in the low 80% range, but the others were always tightly packed in the mid 80%s. Georgia State always ended up a few tenths of a point ahead of the other two. I don't know what this says about the Bar exam, legal education, or what being a "top, mid or lower tier" law school means, but it must mean something.
1.4.2006 12:42am
UCLA Class of 2004 (mail):
As a former UCLAW grad, I can attest that UCLA Law does not "teach to the test." Even though we loved to complain about that fact, it taught us to "think" rather than simply "regurgitate." We may not have simply learned "Irac" or in "outline" form, through close study of the relevant cases we were able to glean the "gist" of the black letter law and to understand the reasoning (even though often illogical and nonsensical). We, along with many other law students in California learned the black letter law for the Bar Exam via BarBri. And although I have long since forgotten what Barbri taught me, I still remember many discussions from class lectures (even when I played a little too much on the internet --darn those ethernet ports!) Go UCLAW!
1.4.2006 12:42am
scepticalrepub:
My employer, a major bank, paid my tuition at one of the worst diploma mills accredited by the ABA. It was tied for 176th (last) place by US News in their survey. I can guarantee that the students(more accurately their parents or grandparents paying the 20% down, the students were loading up on loans) were being consciously defrauded - a large percentage of those that passed the bar were not going to get a legal job in the state. In the middle of our three years the federal govt changed the rules ex post facto and made discharge of student loans impossible, even after seven years. I wonder if these practices continue and we have a class of indentured serfs carrying hundreds of thousands of undischargable debt with no trade or skills to deal with it.
1.4.2006 3:27am
Frank Drackmann (mail):
At my medical school in the mid 80's practically every course was taught "to the test". The final exam was usually just a smaller version of what would be on the national board test that you would need to pass to get licesed. One year the school started a "pre first year" summer session for incoming minorities in hopes of improving their board pass rates. It was really pointless in that the few black/hispanic students were usually outstanding students and all the course did was give them a head start for the 1st year. The clods like myself who could have actuall benefitted from the course were left out. The National Board tests are really like that Far Side cartoon with questions like "What is the name of that thing that hangs down from the back of your throat" just asked in medicaleese. You only have to get about 65% of the multiple choice questions right to pass. The primary use is for residency training programs to rank their applicants.
1.4.2006 6:50am
Nobody Special:
As another UCLA Law alumnus, I can simply say that, with a few very sparse exceptions, UCLA Law simply doesn't teach.

Go team!
1.4.2006 7:48am
Mike BUSL07 (mail):
<blockquote>
The Bar exam does reward diligence in preparation. People who fail it are usually those who did the least to prepare and put the least effort into it. To the extent they take that beyond the exam, it is an effective proxy for diligence.
</blockquote>

Ditto. You can criticize the bar's effectiveness at gauging ability to be a lawyer, or even its necessity, until the cows come home. It remains that a test, regardless of its substance, that requires takers to sit down and study <i>something</i> and exacts a significant amount of stress, <i>will</i> predict, most of the time, how good someone will be at a job that requires you to sit down and research and distinguish details, and exacts a significant amout of stress.
1.4.2006 8:02am
Phil (mail):
Mike BUSL07 may be on to something. I have taken and passed a couple of bar exams and, with one exception, the people I knew who did not pass the bar were not stupid but did not handle stress very well. Litigation, at least for the non-elite practitioners, frequently requires producing adequate work with very little time, as does the bar. The bar also might cull out those who are bad at recognizing their weaknesses ("I did well in law school, I do not need bar review"). That said, I still think that law schools should serve at least some screening function. The dean could at least tell the person with a lousy LSAT score and poor first year grades that her/his time (and money) might be better spent elsewhere. If absorbing large amounts of information and then selectively regurgitating it at the appropriate juncture does not sit well with a student, IMHO many areas of legal practice will not.
1.4.2006 8:51am
WB:
What's a "former UCLAW grad?" Has UCLA retracted any JDs lately?
1.4.2006 8:53am
NYC ESQ:
This is such hogwash. As a NY attorney who battled the NY bar exam several times and had a low LSAT and was bottom 10% of my T2 law school, the only thing the bar exam measures is the ability to memorize and regurgitate. In my 2 years of practicing law at a mid-sized litigation firm, I have selected juries, written successful motions and brought satisfactory results to my firm's clients. NOT ONCE, have I ever had my legal abilities questioned because of my bar exam performance. Even at my interviews for lateral positions, my class rank was not as important as my ability to deliver the bottom line (i.e quality legal representation at excellent rates).

If it were up to me, I'd abolish the bar exam altogether. As SR pointed out in his/her excellent remark above, the bar exam does little but perpetuate the inadequate ideals (misplaced) of a long-ago generation where "minimal competence" is measured by 200 mult choice questions in 6 hours. Law schools who care about abysmal bar passage rates would be better served by focusing on initiating bar prep programs as early as 1L, instead of hiking up their LSAT requirements for admission. From 1997-1999, my Tier 2 law school in NYC accepted 5% of applicants with LSAT scores of 145-150. In 2004, the school accepted 0% of applicants with those LSAT scores - yet the school's bar passage rates have remained the SAME since 1999. Explain that one!
1.4.2006 9:30am
Per Son:
The Affirmative Action is tripe is nothing more than tripe until some proof can be put forth. If anyone has any please cite to it (quantitative, not "a friend of mine is a professor . . ." type of stuff).
1.4.2006 9:44am
Aultimer:
It seems that eventual bar passage rates are more important information for prospective students than first-try rates. In any event, data correlating LSAT score to bar passage across schools should be useful to students with scores that distinguished the ability of a school to make them employable (immediately or after a few trys).
1.4.2006 9:53am
Phil (mail):
I am not sure that the bar should consist of 200 multiple choice questions. (My first did not.) That is a separate question about whether there should be some test. My own experience as both a practitioner and law faculty member leads me to believe that the all essay version might be better. (I have not taken the new multi-state practical skills test, or whatever it is called.) As for abolishing the bar, the arguments in favor of such a course of action seem to me identical to the arguments in favor of abolishing law school itself. If Justice Robert Jackson could be a law firm partner, SG, AG, and SCOTUS Justice w/o being a law school graduate, why bother with that? I think that the answer is that most of us are not Robert Jackson. I have seen great legal work done by folks who never went to law school, but that really proves nothing except that some people can do that. Regulations are based on assumptions, averages, etc. As for whether these various screens are doing a good job, I do not know. I only know one person who had a lousy LSAT and poor first year grades, who (eventually) passed the bar. She is, in fact, a mediocre attorney. That proves no more than the earlier J. Jackson example. Finally, I do not know enough about the new LSAT scoring to comment on the scores (I had a 47 back during the Greek and Trojan War.) and the connection to bar passage except that they are (at most) only one predictor. Perhaps law school should stop using the LSAT at all if it has nothing to do with bar passage or successful lawyering.
1.4.2006 9:55am
Adam (mail):
Let's see: only 24% of DU Law students are "of ethnic descent", but a 30% failure rate among first-time test takers. The current entering class has "262 students enrolled full-time and 87 students enrolled part-time", and each first-year course, contra Brian G, has only 80 students.
1.4.2006 10:03am
Houston Lawyer:
The bar exam sets a rather low hurdle for those wanting to practice law. The pass rates are very high compared to the CPA exam. Others, such as actuaries, take a whole host of very difficult exams over a number of years.

There was an article in the Houston Chronicle this last weekend about a man threatening to sue the state bar because you can only take the Texas bar exam five times and he had already flunked it four times. Would you want this man as your attorney?

Make no mistake, those 200 multiple choice questions are a bitch. The only thing we found interesting in Bar/Bri was the definitions of the different kinds of sodomy. Somehow I missed that in class.
1.4.2006 10:24am
2003 Law Grad:
Several years ago, I graduated in the top of my class from a first-tier law school. I thereafter clerked for a federal COA. I also interviewed for USSC clerkships (but to my dismay, never received an offer from the Supremes). Perhaps not surprisingly to many, I passed the bar. But I would not have been surprised had I failed. My impression of state bars is that they are a money-making racket. The bar exam failed adequately, if at all, to test my legal abilities. The test is simply a test of who can spit out the most facts the fastest. No real analysis of facts is required. "Analysis" more simplistic than I would have ever included on a law school exam scored me all sorts of points on the bar exam. I actually had to teach myself to answer hypotheticals as if I were writing to a lay person. (For example, "A contract requires an offer. An offer is (whatever the definition is). Dick said to Jane 'I will sell you my bike for $5.00.' Dick's statement might be an offer assuming Dick is of sound mind and did not make the statement in obvious jest. Because the facts do not indicate that Dick was incompetent or jesting, an Dick's statement was likely an offer." According to my bar-course teachers and my exam results, that nonsense is a top-notch answer. In law school, I would have simply said, Dick's statement was an offer.) Anyone with excellent memory skills could have passed my bar exam, and anyone with great legal skills could have easily flunked the exam. Research and analytical skills do not require incredible feats of memory. Moreover, neither skill requires a comprehensive knowledge of state law. Upon finishing my bar exam, I forgot in 24 hours everything I'd crammed in my brain the previous 4 weeks. Furthermore, in the years since the exam, I have yet to research, analyze, or argue any of the state law that I so competently memorized. But, hey, I'm qualified to practice -- even though for all the state bar knows, I might simply be a computer, an idiot savant, or merely a child with a photographic memory. And why tell me, if I passed the bar, must I pay outrageous bar fees to be licensed to practice law. If the state bar really exists to protect the public from incompetent lawyers, shouldn't the public--not the competent lawyers--bear the cost? State bars--like the ABA--are just money-making monopolies, and snooty ones at that.
1.4.2006 10:57am
Taeyoung (mail):

preparing for the MBE is not totally foreign to the law school experience.

Really? I found it rather markedly different. I didn't take an LSAT cram course -- I just used the little CD they sent along and did the practice questions on that -- but I suspect that if I had done, there would have been more similarity between my bar prep (Bar-Bri) and that cram course than my law school experience.
Anybody else have the feeling that the MBE portion was really just tested your test-taking ability and not so much your knowledge? What that means, is that any high intelligence person should be able to pass the bar exam (including the essay portions) depending on how their state weights the two (assuming a lot of studying as well as intelligence of course).

I think it really depends on how you define "knowledge." For the MBE, I know my knowledge-free multiple choice test-taking skills are quite good, but the MBE I actually felt I had to study for, much more so than the essays. In both cases, though, the kind of knowledge required was not really understanding or deep knowledge, so much as mere memorisation -- important, I think, and undervalued, but not particularly difficult. Just tedious.

It is a pretty strange world when Harvard Law School and other elite schools have some students who fail the bar.

Oh sure. But I think that's their fault, not so much because they're making standards more elastic to get more Blacks and Hispanics or anything, but because they just pass people on through. Shamefully enough, my experience at an elite law school was that you really had to do pretty badly on just about everything to get below a B on an exam.

I've noticed that on a lot of conservative/libertarian blawgs the authors are all for free trade, so long as it only costs the wages and jobs of lower skilled workers. I've not seen any of them get wroked up about the protectionist nature of te Bar.

There was a brief discussion of this issue in a post on Prof. Bainbridge's site a while back, in which I did argue that the Bar ought to be abolished and the market (and post-hoc state regulatory liability) would be adequate/superior protections in the legal field. But then, I'm not a law professor, and certainly do not run a blawg. On the other hand, I am conservative, if not libertarian, so that's almost there.

That said, though, I also have to admit that I'm sympathetic to a different model of law study, where you don't have to blow three years and a ton of cash on law school -- you just sit down, read the law, and take the exam. After you've passed, you apprentice yourself to some senior lawyer somewhere, and go from there. If the exam functioned in that context, I'd look at it more positively, as a kind of access/qualifications equaliser. As it is, though, you pretty much have to go to a law school and pay out the requisite cash.

You can criticize the bar's effectiveness at gauging ability to be a lawyer, or even its necessity, until the cows come home. It remains that a test, regardless of its substance, that requires takers to sit down and study something and exacts a significant amount of stress, will predict, most of the time, how good someone will be at a job that requires you to sit down and research and distinguish details, and exacts a significant amout of stress.

I'm not sure I agree entirely with this regarding the predictive utility of the bar, but contra SR above, I do think that diligence is a major, and possibly the major factor in passing. The caveat would have to be that you can have bad luck, nerves, or a bad study plan, and all the diligence in the world won't save you then.
1.4.2006 11:50am
Another ethnic (mail):
Huh? As Adam's comment says, DU Law's website says of its students that "24% are of ethnic descent."

Isn't EVERYONE on the planet of some ethnic descent? Someone was just afraid to laundry-list the intended groups, and was afraid to write "minority." And of course, if one really breaks down "Euro-American" into Polish, Irish, etc., aren't we ALL minorities?
1.4.2006 12:00pm
Conrad (mail):
The bar exam is needed because now that (i) law schools have abandoned any gatekeeper role and pass anyone with a pulse and (ii) even the lousiest applicant can get in somewhere, that test is the only barrier preventing the most egregious blithering idiots from entering the profession.

Three years after graduating from law school -- having served a judicial clerkship and worked abroad in the interim -- I took my first bar exam (in NY). I took it without so much as opening a book to study, because I had been working 18-20 hour days on an M&A deal for the better part of the two months leading up to it.

Despite being three years removed from the subject matter, not studying a bit and suffering from massive sleep deprivation, I passed the damned thing by a wide margin. As I should have, the exam isn't hard. Anyone with (a) minimal intelligence; (b) a semblance of a legal education; OR (c) the discipline to actually study can pass the damned thing. And anyone who can't manage to do that is too stupid and/or too slothful to be allowed to practice law.

Perhaps the bar exam doesn't test skills that one will use in 'real life'. Neither does an IQ test. But like and IQ test it does a pretty good job of identifying morons. And God knows, it's not like there aren't enough of them in the profession already.

Plus, quit your sniveling. In Japan, to become a lawyer (bengoshi) you have to pass the Japanese bar exam (the Shiho Shaken) which historically had a less than 3% passage rate. Those who do pass usually had to take the exam 5 or more times and most law school graduates never managed the feat.

Oh, and passing merely gives one the opportunity to enter an additional two-year long training program.

http://tinyurl.com/7zl5g

Having practiced in both Japan and the US, I must say the Japanese system results in a substantially less embarassing bar membership.
1.4.2006 1:14pm
Bruce Hayden (mail) (www):
From some of the above comments, you would think that CU (state) was the local law school, and not DU (private). But CU thinks of itself as a national law school, eschewing local subjects (like water), and recruiting nationally. DU has traditionally (until this push over the last decade or so to make money) recruited primarily from Colorado, and traditionally, a much higher percentage of its graduates stay in state than from CU. Indeed, nearly half of those on the bench on most of the courts in the state are DU law grads.

DU has the only night program in Colorado, and thus, attracts a lot of non-traditional students. However, at least in the past, their bar pass rate was not that much different from the much more traditional day students. Needless to say, CU seriously discourages any outside employment during at least your first year. I should also note that though CU grads would typically have a slightly higher bar pass rate, it wasn't nearly this noticable really until very recently. For most of its over 100 year existance, the DU law school was located near downtown Denver. This allowed easy access to the various state and federal courts, and resulted in relatively good hands-on training for aspiring lawyers. Also, it was convenient for practicing lawyers to drop by and teach an occasional class as adjuncts, again, resulting in a more practical legal education than was found in Boulder. (This last year, the DU law school finally joined the rest of the university south of downtown).

Finally, reiterating my point above. DU is a private, non-profit, university, offering a range of courses of study (Secretary of State Rice got her BA and PhD there). However, most of its schools lose money. The two exceptions are Business and Law. Both schools are "cash cows" for the university, and, essentially are run as profit centers to underwrite the rest of the university.

I think that this is missed by many. A law school can be quite profitable for a university once a critical mass is reached. That is because some of the more expensive costs of running a law school (like the required library) are not linear, but rather closer to a step function. The class rooms are a sunk cost, funded by the alums in fund drives. And in a private university like DU, with the resulting high tuition, the faculty and other salaries, along with other variable costs are much lower than the resulting tuition. And, thus, an incentive to push up the number of students to the highest possible levels.

Unfortunately for DU, I think that they have found one of the upper limits on this profit-making: a low bar pass rate is inevitably translates into a lower desirability as a law school. And hence the study, that presumably will rein this in a little bit. Also, another possible upper limits is the williness of alums (who just built all new law school facilities) to contribute - which is probably also positively related to bar pass rates.
1.4.2006 1:33pm
Observer (mail):
I took the Connecticut bar recently after being out of law school for a couple of decades and the experience reinforced my long-held belief that you could take any reasonably smart college grad, put him through a bar-prep class, and he'd have the same likelihood of passing the bar as if he'd spent three years in law school. To pass the bar you need (1) analytic smarts and (2) a strong memory (the bar tests knowledge of lots of minutae). The LSAT does a reasonably good job of measuring analytic smarts and college grades do a reasonably good job of measuring memory skills which is together they do a reasonably good job of predicting success on the bar exam.

By the way, it's highly likely that Prof. Sullivan failed the California bar only because she didn't study for it - and, as noted, the bar measures knowledge of minutae which most lawyers either never studied in law school or never use in practice.
1.4.2006 1:41pm
Pete Freans (mail):
I was beaten to the punch by blogger "Observer" who raises an excellent point. Does one need three years of law school to pass the bar? I have been out of law school for 8 years and I took the PA bar last year. Thanks to Bar-Bri and the legal experience I acquired, I was successful. I certainly didn't recall during my exam what my law professors taught me nor did I refer to any hornbooks or law school textbooks for study. As for law school, I would have much preferred the master/apprentice relationship (as law was once taught before the ABA took over) than three years of classroom teaching.
1.4.2006 2:05pm
Brian G (mail) (www):
Adam,

I stand corrected. Thanks.

p.s. I took an online European Union Law course over the summer from DU. It was a great course and I learned alot.
1.4.2006 2:18pm
John R. Mayne (mail):
While the bar's far from perfect (some lawyers scare me, and I'm sure some good folk are kept out) it's both necessary and acts as at least a reasonable filter to try to prevent the wholly unqualified from practicing.

I'd go further than Observer and some others, and say that a sufficiently bright high school student, given ten weeks and a personal instructor, could pass the bar. (I
didn't take Bar/Bri or any of those, so I can't really speak to them, but they struck me as wasteful for people with access to law books.)

My law school was a for-profit, non-ABA accredited night school. They let everyone in whose check cleared; that was 53 people for the first class. By the end of four years, there were nine of us, of which eight took the bar. All eight passed on the first try.

The real mystery to me isn't how some large percentage of Denver University's students don't pass, but how 12% of top-tier students don't pass. That strikes me as pretty amazing; there aren't any football scholarships to law school, right?

--JRM
1.4.2006 2:48pm
Taeyoung (mail):

Plus, quit your sniveling. In Japan, to become a lawyer (bengoshi) you have to pass the Japanese bar exam (the Shiho Shaken) which historically had a less than 3% passage rate. Those who do pass usually had to take the exam 5 or more times and most law school graduates never managed the feat.

Haha -- unsurprising, no, since American-style law schools were only introduced in what, 2004? I don't think they've graduated their first classes yet. Instead, people just graduate from undergraduate law study before they take the exam. It's the same system in Korea, and China too, I believe. Also, I think a more natural rendering would be shihou shiken, 司法試験.

Regarding whether the bar membership is more or less embarassing than here -- I have no real opinion on that.

My understanding, however, is that our ideas of what constitutes excellent lawyering are somewhat different here than there. In particular what one might call "creative lawyering" appears to be more highly regarded here than over there -- or so I have been led to believe both from my (extremely limited) study of Japanese law and from comments from practising Japanese lawyers. My own view of "creative lawyering" is that in the long run, it undermines the predictability and the fairness of the legal system, but I am, I think, in the minority over here.

If you were commenting only on their personal probity, their preparation, and their self-presentation, though, I'd say that's just a matter of Japanese society, not their diabolic bar -- everyone seems better turned out and prepared there than here, at least in business contexts. And there, again, I am not sure I agree -- I don't know enough Japanese lawyers (or American lawyers, frankly) to comment.
1.4.2006 3:04pm
Freder Frederson (mail):
As I mull over my brief career as an attorney (I only practiced for a year after the three years of law school--I found the entire four years a distinctly unpleasant experience) I often wonder what it all meant and whether you really have to be "intelligent" in the normal, rational meaning of the word to be a "good" lawyer, or what being a "good" lawyer even means.

I worked for four years between my undergraduate degree and entering law school. My undergraduate degree was in Chemistry. I did very well on my LSAT, scoring in the 98th percentile. What really shocked me about law school was that although the work was hard in the sense that there was a lot of it and the teachers were demanding and some were condescending and demeaning, I didn't find it intellectually challenging. Certainly, it didn't require logical or rational thinking in the normal or classical meaning of those terms. I was especially shocked by the sloppy scholarship and just intellectual dishonesty of what were supposed to be the great minds of modern jurisprudence and legal thought on both the left and the right (I came to especially detest both Posner and Catherine McCinnon).

But what really baffled me was my fellow students. As an undergraduate I carried a solid 3.0 gpa. Chemistry is not an easy field of study and grade inflation was unheard of. I admit that there were some semesters when I was less than serious and my grades suffered as a result. But as I looked at my peers and my own performance, I always felt that I got the grades I deserved and that those who did better than me were either just smarter or were working harder (and that those who did worse were dumber or lazier). In law school, I ended up in the top 25% of my class, yet I could never figure out why some people did better than me or some people did worse. Some people who were at the top of the class I considered very bright people, others I thought were as dumb as a box of rocks. Likewise for some who struggled near the bottom of the class. Nor did it seem like the effort people put into it resulted in better or worse grades. One thing I did notice is that I seemed to get consistent grades from different professors eventhough our tests were all graded anonymously (we received a number before our exams and we put this on our tests rather than our names). In fact I had one professor who I took for three courses, where I got the exact same grade (an 84) on every single exam. And another Professor that I took for three courses and got three A's (obviously he was my favorite).
1.4.2006 4:16pm
Cold Warrior:
This thread may be dead, but I'll see if anyone's listening.

1. DU's first-time takers passage rate was 70 percent. I don't think this is a huge cause for concern. The passage rate for first-time failers was abysmal, but this is to be expected.

2. The study says a combination of low LSAT scores AND low first-year grades is a good predictor of bar exam failure. As a practical matter, it is impossible to "weed out" this class. You would have to plan on failing out a certain percent (20? 30?) of first-years, but only those who ALSO have low LSAT scores, and perhaps keep low performers who were admitted with higher LSAT scores.

3. So you can't do that. But you CAN fail out a very substantial percentage of low performers. That is exactly what my law school took to doing in the late '80s in an effort to increase their California bar passage rate. If I recall, about 30% were not "invited back" after their first year. The result? Bar passage rates went from around 50% to over 70%. Remarkably effective. Interestingly, it turned what should have been an easy-going So Cal law school into an anxiety-riddled pressure cooker. I remember being astounded by the lax approach of the Stanford students I worked with in the summer. They KNEW they were going to graduate, and the bar exam was something they could study for after graduation.

4. DU does indeed have a night program. It would be interesting to see a breakdown of the bar passage stats by day vs. night program. My guess is that the night program students have a pretty horrific passage rate. But I have no doubt that the night program is a "cash cow" for the University, and that abolishing the night program is not politically feasible.

5. On bar passage rates year-to-year: my experience is that California does a pretty good job with this. When becoming a lawyer was momentarily a sexy occupation (think "LA Law"), law school applications soared. So-called 3rd and 4th tier schools suddenly could choose much-better qualified applicants. Cal bar passage rates reflected this quality increase, going up substantially in the 1990s. They are back down again. In other words, the Cal bar exam DOES seem to strive for some absolute standard of competence rather than a rigid curve ("the top 70% pass") in any given year. I applied to become a grader for the exam at one point -- I didn't make the final cut, but I went through some training materials. I was impressed by the attempt to achieve consistency across graders. Indeed, the consistency of grades in what is considered a fairly subjective process (essay questions) was quite remarkable.

6. Having said that, the Cal bar exam certainly has its problems. I don't think it's "too hard" in general. Having some insight into the grading process, I have to say my #1 complaint is this: essay question/performance exam grading puts an extreme emphasis on issue spotting. There is almost no weight given to the ability to write clear English. And having practiced in California, I was continuously astounded by the almost complete lack of English writing ability among many of my colleagues. This lack of testing of writing skills has what some would consider a side benefit: it allows intelligent people for whom English is a second language to pass the exam. But that's also one of the problems: intelligent people who don't know English very well can readily pass the exam ...
1.5.2006 10:17am
Dale Gribble (mail) (www):
Colorado reuires a pretty high score to pass the multistate portion of the bar exam. but maybe the solution to low bar grades is to lower the standards for passing the exam.
1.5.2006 12:21pm