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Friday, September 25, 2015

Perspectives on a Looming Decline in Bar Exam Passage Rates

As rumblings grow over the possibility of another summer of poor bar exam results, yesterday's New York Times ran this "Room For Debate" feature on declining bar exam passage rates. There were several notable contributions to the discussion regarding the notable fall in pass rates across the country which began in July 2014. 

To sum up each contribution with one (greatly simplified) sentence each: Deborah Merritt argues that the National Conference of Bar Examiners (NCBE) has too much control over access to the practice of law and is overly hasty in blaming law students' credentials for decreased passage rates; Linda Greene writes that law schools have a duty to help students better prepare for the bar exam and should identify and support those students who are most at risk to fail; Jerome Organ argues that law students' declining credentials are to blame for decreased bar passage rates and that this trend will continue; Brooklyn Law School Dean Nicholas Allard argues that the bar exam is outdated and in need of drastic overhaul; and Diane Downs notes that in an era of declining law school applicants, those who choose to attend have made a more deliberate, meaningful decision to become lawyers.

I think that each of the authors raises some good points, although, as I have noted before, I think that Dean Allard's criticism places too much blame for declining pass rates on the NCBE.  As Greene notes, law schools have a duty to better prepare their students for the bar exam. Dean Allard's criticism avoids acknowledging the legal teaching profession's responsibility to adapt to the disturbing trend of poor bar exam performance in a world where, like it or not, the bar exam exists. 

That's not to say that I don't think the bar exam could, and should, change. The exam could certainly be run more efficiently (two days, please), and results should be processed in a timely fashion (compare the date of this post to this post). But as for subject matter and format, it is easy to criticize a written, standardized exam. But I am at a lost when asked to think up any practical alternative. And those who know me know that I'm certainly not a supporter of dropping the test entirely.

As for law students and prospective law students taking all of this in, while proposals for change and criticisms of the exam may circulate, I suspect that the bureaucratic nature of the bar exam will make change a slow and painful process. My best advice for those considering law school now is don't count it out, but do carefully consider the realities of the field before making a hasty decision, and realize that tomorrow's bar exam will probably still look a lot like today's.

For previous posts on falling bar exam pass rates, see here, here, and here.

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