The Legal Beat
Law School Dean Rips Bar Examiners
Posted on Tuesday March 21, 2017
California’s bar exam shenanigans are well-documented. The state used to force applicants to sit through a three-day exam for no apparent reason but to torture applicants. Even though that’s gone, the state continues to pride itself on the difficulty of a test that can trip up a Stanford Law dean. Whenever anyone questions the fact that the state kicks tons of prospective lawyers to the curb every year, California bar members come out of the woodwork to blame law school grads for not being up to snuff, spinning this as “setting a high bar for the legal profession,” or some other sanctimonious hogwash.
But legal educators aren’t having any of it. Every law school in the state — save one — has written the state Supreme Court to protest the draconian exam. Dean David Faigman of Hastings has now moved the fight from the court to the court of public opinion.
In an op-ed in the Los Angeles Times, Dean Faigman shines a light on the state’s ridiculousness:
The California bar exam has historically had the highest cut score of any state, consistently resulting in the nation’s lowest pass rates. In July 2016, California’s pass rate reached a record low 62% for graduates of American Bar Assn.-accredited law schools. New York’s was 83%. Although California has always had low pass rates, the July results caused an outcry. It finally dawned on those of us who run law schools in the state to ask why.
Once you realize that the high failure rate isn’t really the product of a bunch of morons taking the test, but an affirmative decision by bar examiners to fail a swath of graduates — 1,789 in the most recent administration of the test — who would pass the test in any other jurisdiction, you have to ask why California thinks its standards are right and everyone else’s are wrong. On this score, the state refuses to say much for itself:
… Elizabeth Rindskopf Parker, the state bar’s executive director, told the committee that “there is no good answer” for why the California cut score is so high.
In fact, the best rationale the state bar can come up with for its high score is that it has always been this way. Tradition! And yet as Oliver Wendell Holmes pointed out over a century ago, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.”
With all due respect to Justice Holmes, “naked protectionism” might actually be a worse reason.
As I’ve written before, California’s fixation on its harsh cut score isn’t just hurting perfectly competent law graduates, it’s doing a disservice to society:
First of all, the California State Bar’s ethical obligation should be protecting the citizens of California from bad lawyers, not protecting the market share of people who already passed the test. The market will decide how many practicing lawyers the state actually needs — the bar exam just needs to set the floor for certification. Secondly, on the subject of its obligations to the citizens of California, has anyone checked out the state’s justice gap? Because…talk about horrific. That’s certainly not helped by keeping an artificially tight lid on the population of potential pro bono hours.
Dean Faigman laments that despite the growing consensus that something’s wrong with the exam, the state Supreme Court opted to call for a study and hold the line in the interim — a “wait and see” approach that keeps thousands of students in professional peril. There’s enough evidence to act right now. They don’t need a study to set their line to match the states they view as peer markets. As Faigman puts it:
Doing something because everyone else is doing it may not be the best basis for acting. But when the lives and careers of so many young people are at stake, it’s a whole lot better than departing from what everyone else does for no reason whatsoever.
Sounds like a pretty good heuristic.
The California bar exam flunks too many law school graduates [Los Angeles Times]
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.