Time to offer bar review credit

By Stanislaus Pulle

Pulle

An analysis of the pass rates of State Bar-accredited law schools from 1986 through 2005 shows a majority have on one or more occasions scored either a zero or a score significantly lower than the overall pass rate.

At the Southern California Institute of Law, we had two of two first-timers pass the bar exam in 2003 and all six graduating students in 1997 passed the bar exam. Yet when dealing with small numbers, these are meaningless numbers. Even within a larger pool, bar pass rates do not bear a rational relationship to the quality of legal education in small evening law schools. However, in the public mind, bar pass rates have become the yardstick for measuring the quality of legal education – in State Bar-accredited law schools in particular.

Any attempt at making a meaningful correlation between bar pass rates and law school instruction yields propositions that are difficult to verify, hard to place in context and generally impossible to evaluate. Law schools must be careful that their curricula and teaching methodology not succumb to the siren song of improving bar exam pass rates and risk becoming virtual bar mill schools.

Several California-only accredited law schools have witnessed graduates with high law school GPAs fail the bar examination. Others whom we least expected to pass, because of a combination of English as a Second Language (ESL) drawback, low GPAs, weak pre-law background and older age, have succeeded on their first or subsequent attempts.

Most recently Dean Kathleen Sullivan of Stanford Law School, with an undergraduate degree from Cornell and a law degree from Harvard University, and a noted academic luminary, crashed and burned on her first attempt at the California bar examination.

What explains this? The format, structure, content and grading of law school and State Bar examinations are different enough to defy reliable comparisons.

Format

Law school examinations are typically essay-only type questions as opposed to the State Bar examination, which is divided into essay, multiple-choice and performance sections, with the essay portion accounting for 35 percent of the total score.

Structure

Law school essay examinations examine on a single subject basis, with each subject being tested on a different date, and with a minimum of two questions per subject. Thus, a less than stellar performance on one question may be compensated for by an outstanding performance on the other, since it is the average score that counts. A further crucial difference is unlike in the general bar examination, law school students know in advance exactly in what subject and its parameters they will be tested when they arrive on the day of the examination.

Content

Law school exams are usually far more comprehensive and exhaustive than state bar examinations. In two-semester courses, students are examined through mid-term and finals. In some law schools, to secure a passing grade, policy rationales and jurisprudential underpinnings are demanded in support of the applicable rules.

Grading and examination performance

Law school students have the benefit of being graded by the person who instructed the subject and wrote the question. Moreover, under state bar rules of accreditation, the grades of law school instructors teaching the same group of students must bear a reasonable correlation to one another. Thus raw grades are accordingly adjusted. There is nothing comparable with respect to state bar examinations. Over the course of a four-year legal education, students are essay tested as many as 50 times, involving more than 20 instructors.

Conclusion

Following the historically low results of the 2000 general bar examination, former State Bar senior executive officer for admissions Jerome Braun put it well when he said: “Each person who takes the exam is unique. Each performs individually . . . It’s a question of preparation.” 

What can law schools do to improve bar pass rates? Some ABA-approved law schools have experienced downward bar pass rates not unlike California-accredited law schools. In an attempt to stem this slide, the ABA has now changed its rules. Students will be allowed some credit for “law school-sponsored bar review courses.” Currently, the rules of California bar accreditation forbid this.

Perhaps it’s time to revisit this rule.

• Stanislaus Pulle is dean of the Southern California Institute of Law at Santa Barbara and Ventura.