Wednesday, March 16, 2016

Bar Pass Standards and the Wiggle Room Problem

The ABA Section on Legal Education and Admissions to the Bar has proposed changing the bar passage standard used to evaluate law schools for accreditation purposes.
Under the proposal (PDF), a law school would have to show that at least 75 percent of its graduates who took a bar exam within two years of their graduation passed.

The proposal, if adopted, would eliminate altogether the first-time bar passage test contained in the current standard (PDF), which a law school can meet by showing that its first-time bar passage rate is no more than 15 points below the average first-time bar passage rate for ABA-approved schools in states where its graduates took the exam.
On one hand, this removes something of a loophole - if enough law students in a state sucked, all of the crappy law schools that produced the suckage would still be easily in compliance because they were all clustered within 15 points of the average that they collectively jacked up.  It became a true feat to one of the few schools to land in hot water for having low bar passage rates.

While the new standard is somewhat admirable in that they're holding law schools to an absolute standard rather than one that allows them all to sink simultaneously without penalty, the standard still fails completely to  help students and ensure that American law schools are actually viable, worthwhile institutions.

First, the measure is phrased not on a per-test basis, but on a per-student basis.  In other words, a student who fails three bar exams in a row and passes on the fourth try counts as one plus and no negatives at the end of a two-year period.  The rationale for this is explained in the proposal:
While first-time pass rate is important for consumers and is (and should continue to be) disclosed under Standard 509, the Committee believes that, for the purposes of accreditation, an ultimate pass rate is the more appropriate measure of whether a school is operating a sound program of legal education [so if they have to take a year and a half to teach themselves everything, the school is doing well?  -ed], and it is not subject to the idiosyncrasies [? - ed] that can be found with a reliance on the pass rate of first-time takers. 
It should be understood that the proposal makes no attempt to place a limit on the number of times that an individual may sit for a bar exam. 
In other words, the ABA may soon not care if a law school's entire graduating class fails the bar on the first try for accreditation purposes.

You're basically going to see schools like the Infilaw units put students on one of two tracks:  1) those who they think can pass a bar, which will mean pushing them to take the bar four times after which the student becomes persona non grata; and 2) students who they're going to pay to hold on taking a bar exam for at least two years.

Because that's the other problem with the standard:  it's expressly limited to students who "choose" to take a bar exam.  Just as evaluating a school only by its graduates who volunteer to submit employment information is a terrible way to evaluate the job market, only counting those who choose to take a bar exam is a poor metric of how the school at large is functioning.  It rests on the exploitable assumption that most law students will take a bar exam, that there is an unknowable minority who went to law school with no intention of being lawyers who will not take a bar exam, and that law schools will act in good faith to not disturb the balance.

The problem is that, behaviorally, we know law schools do act to manipulate post-graduation statistics to their advantage.  And yet, when these standards get drafted, inevitably the law schools are allowed to whittle the edges based on "unfair" arguments and mythological ideas about law school to preserve avenues for manipulation.  All regulatory efforts like this is accomplish to allow creative types to find new ways to lie.

Thinking about it further, why do we use the bar exam at all?  The problem, it seems, is that there's no truly standardized test in law school.  It's an odd realization given the strong emphasis on the LSAT as a uniform pre-law comparison metric, the standardization of 1L curriculum and ubiquity of GPA in determining job fortunes, and the ever-standardization of the bar exam.

I'm normally not an advocate for adding standardized tests to an educational system, but given the realities of legal education, it would seem ideal to have some sort of standardized test taken during the 3L year.  Require every would-be graduate to take it, give them some carrot to ensure effort, and require that the school achieve above a certain result in the aggregate.  In the alternative, give some sort of uniform test after year one to ensure that "contracts" at Cooley is the same as "contracts" at Columbia.  In the former, students would gain a pre-bar evaluation of their study needs; in the latter, BigLaw employers would have a cross-school metric to use when reviewing candidates.

Of course, there's a strong institutional resistance to any such moves, not only because legal educators are intentionally stodgy and reluctant to believe in any alternative that might disrupt the status quo, but also because at least 175 presently accredited schools benefit handsomely by institutionalized wiggle room.

After all, regulatory capture is all about finding a way to comply with the letter of regulations before they even exist, spirit of the regulations be damned.  While on the surface, this new regulation has some positive changes, it unfortunately builds in evasion tactics to ensure that all but the most piddling law schools are going to be in compliance for a long time to come, regardless of what warm bodies are still enrolling with those succulent tuition checks.


  1. Another problem: bar passage does not necessarily equate to legal work. Prospective students might look at a toilet's published pass rate of 85% and think "If I go here, I have an 85% of being a lawyer." Remember, the students are lower quality now than they were in years past.

    Again, while you may be licensed to practice, you are not really a lawyer until someone pays you to represent them on a legal matter. Giving out free legal advise to cheapskate relatives and the cute brunette with big doe eyes and a killer smile doesn't count. And lastly, the name of the game is to find gainful employment - preferably with a steady paycheck, benefits, vacation time. How many law firms offer those amenities. If you go the toiletlaw route - out of necessity - it's eat what you kill. You don't land paying clients, you don't eat. But hey, you've got a $140K piece of paper that says Juris Doctor on the wall, right?!?!

  2. The new standards are too little, too late. A school should have one year, not two, to show they admitted students who are capable of success. The Federal government is paying the tuition (seriously, what % of all those loans are going to be paid back in full?) so while on the Federal loan gravy train, the schools should at least be showing they are producing capable attorneys in small enough numbers that virtually all of them will be employed on graduation.

    And why not an end-of-first-year exam based on the uniform first-year curriculum? Something like California's Baby Bar? This would serve to screen out the less-capable students before they spend 3 years on Uncle Sam's dime at law school and then cannot find a job to pay those loans back.

    It's hard to believe that Congress has not cut off the Federal loan gravy train, or at least made some reforms to cut down the waste. The law schools (and others) are just lapping up the easy, risk-free money, and turning students into unemployable debtors as fast as they can, with no accountability to anyone.

  3. One question I have, what happens with the grad who fails the bar once, twice, or three times and then just gives up? Does that count against the school once the two year period expires? I imagine that even at a shitty infilaw school, it's not all that common for a person to actually take and fail the bar exam four times in a row.

    1. My reading is that even if a grad takes it only once in two years, the result is count as a "pass" or "fail" for the school's accreditation purposes.

      This creates a perverse incentive for schools to convince low performing grads to not take the bar exam, but also incentivizes them to heavily subsidize/encourage first time failers to re-take and pass.

  4. ".... the standard still fails completely to help students and ensure that American law schools are actually viable, worthwhile institutions."

    The ONLY way to truly insure law schools are viable and worthwhile is to shut half of them down. The country only needs 80-100 law schools, yet today we have about 215 that are accredited by the ABA. This is far, far too many, pumping out far too many law school graduates.

    I think this new requirement is a "baby step" towards shutting down some of the crummier law schools. This requirement avoids accusations of racism (which is the reliable stand-by used to discredit, without actually having to argue something on its merits). It also avoids any anti-trust lawsuit. Thus, I believe this requirement is a good start, but ONLY a start.

    Interestingly, NY State has done something like this in hopes of limiting the supply of lawyers. The NY State Bar now requires something like 100 hours of pro bono legal work before being granted admissions to the bar. In reality, finding pro bono legal work is quite difficult (unless your law firm gives it to you), and this requirement seems to be a covert way of limiting the number of people who can practice in New York.

    Sure, NY State rationalizes this requirement as "helping the underprivileged," but it is in effect a way of limiting access to the profession.

    1. The rule, unless it has changed since last May, is 50 hours of pro bono work. For the most part, it's an ineffectual feel-good measure, as most law students will satisfy this requirement through either an unpaid internship or clinic work while already in law school.

      I ended up having to do the pro-bono hours after graduating, during and after my time spent studying for the bar exam last July. The reason for this was that I had held paying employment in private law firms from the time of my 1L summer until I graduated. Hence I had no time for clinics and no interest in working for free like a prole.

      I actually found my pro-bono work to be an extremely worthwhile experience, and I was actually able to do some tangible good with the skills I had learned working in law firms (as opposed to the zero practical skills I learned in law school). Still, because the vast majority of students satisfied the requirement by doing things in law school that they would have been doing anyway (even interning at the DA's office is "pro bono" work under the rule), the net positive effect is questionable at best. I think Judge Lippman was more interested in patting himself on the back than anything else when he came up with that one.

    2. Finding pro bono work is harder to do if you're already practicing. I suppose a newbie can get it done in law school, but an older lawyer moving into NY will have a bit more of a problem.

      In NJ, we get randomly assigned pro bono work. It's the most inconvenient thing. One day, I get some letter that I have to appear in court to represent someone, and I only have 2 days to prepare. Forget my real job, I have to rush to some court to defend some deadbeat (who often doesn't show-up, unless he's already incarcerated). It's a total joke.

  5. What difference does it make? They could make a school that claims to teach you to think like a billionaire. Doesn't matter, after you graduate you're the same unconnected broke schmuck as before, just older and you probably memorized a few moronic words and phrases that are utterly meaningless, but that you think makes you sound "intelligent".

    Education does not create jobs. Education, when the goal is employment, is utterly worthless. One hundred years ago higher education barely existed yet people had higher paying jobs, and in fact employers just trained the most promising employees for higher level jobs. Now employers refuse to train, and people start their careers older if at all.

    Higher education was traditionally for the elite gilded classes. They spent a few years away from home primarily to meet a member of the opposite sex to couple with, and then would come home to run their family business. It was never about education or employment for them.

    When higher education was opened up for the masses, a few people were allowed better positions in order to rope in everyone else at great expense. It is greed on the highest order, an example of the upper classes once again exploiting the foolish lower classes who, while not necessarily dumber, have an extreme knowledge and resources disadvantage. The government enforces these games, by the time someone gets through it and learns it's too late and probably nobody will listen to them anyway.

    Law school is the most egregious offender, but it's a problem for all of higher education. Heck, you can probably make an argument the last 4 or so years of primary schooling makes little sense either. I'm not sure what will happen going forward, but I can not imagine higher education as it is will exist the same way in 10-20 years. The expense and results just do not justify it.

    1. Quite profound statement actually.

    2. I've thought this myself. There are relatively few jobs that actually *require* 3-4 years of college education. The main reason for the explosion in people gaining college degrees was an attempt to gain the prestige associated with the upper class. Meanwhile the upper class are laughing all the way to the bank though.

      Its like if during the middle ages the nobility started offering spurious certificates of ennoblement to the peasant masses, while "generously" loaning money to them so they could afford to buy them.

    3. Anonymous Mar 18 wrote "Its like if during the middle ages the nobility started offering spurious certificates of ennoblement to the peasant masses, while "generously" loaning money to them so they could afford to buy them."

      The funny thing is that this sorta actually happened.

      James I of England sold Baronet titles in order to pay for conquering Ireland. He charged £1095 (enough to pay for 30 soldiers for 3 years, maybe $2 mil in today's money). He, and his son Charles I, also sold Baronet titles to pay for colonizing Nova Scotia.

      King James though limited his scam to the rich. A person had to be making £1000 a year (a little less than $2 million) in order to buy in. Imagine how much the Crown could have made if he had invented nobility loans that were not dischargeable in bankruptcy, And than created second, third, and forth tiers of paid nobility to make some people feel superior to the rest of the rabble, and than marketed the lower tiers to England's ethnic minorities (at the time Jews, Irishmen, recently purchased African slaves)

  6. Indiana Tech has received provisional accreditation from the ABA.

    We can't win this war, but at least the truth has been told.

    1. At least the true value of an Indiana Tech JD has been exposed - $0.00. I assume they are going to try to charge actual real money now that they have accreditation, but I wonder how many suckers they will entice?