The short answers are: it depends; and probably. Why? Because, students, circumstances, and bar results have changed in the last decade.
Traditionally, because of the general difficulty of state bar exams, a majority of law school graduates had chosen to take some form of external bar preparation course. Despite the rigors of law school and the emphasis on legal analysis, culminating in writing essay exams, state bar exams were found to be difficult to pass.
Within the traditional setting, law schools had emphasized the precepts of IRAC (Issue, Rule, Analysis, Conclusion), and thus concentrated their classes on these precepts to culminate in training students to be very adept at approaching, analyzing, and writing essay exams. For bar exam takers, this left a gap – the dreaded multiple choice questions called the MBE.
As a result, commercial companies targeted law graduates with bar preparation courses. Although most companies advertised overall bar preparation courses, the courses emphasized how students could approach and answer the MBE questions. Obviously, this was the logical extension for these bar preparation courses since those students were already well immersed in essay writing from their three years in law school.
With regard to teaching how to master the MBE, some of these companies were good, and others not so much. However, because of these courses, many students were able to successfully navigate the morass of those dreaded MBE questions. To this day, those companies who continue to offer external bar preparation courses have remained true to their original academic/business plan. Thus, their course emphasis remains with the MBE questions.
During the past decade, circumstances have changed. First, as widely reported in publications such as the New York Times, Los Angeles Times, the ABA Journal and others, law school enrollment has been on a steady decline. As a result, many law schools have lowered entrance requirements. This change, coupled with other academic and societal changes have helped create a different environment for the law student today.
As a consequence, bar pass rates in many states (e.g. California, New York and several others) have been on a steady decline. As reported in the JD Journal in October 2015, “law schools have lowered their admission standards. Fewer people are applying to law school. In order to keep up enrollment numbers, schools are admitting students with low LSAT scores they previously would have rejected. In 2014, schools saw the result of their action – bar pass rates were the lowest in decades.”
The trend of lower pass rates continues, and law school deans are concerned for a couple of reasons. First, a published high pass rate is a marketing incentive to attract new students to their school, and if it is declining, students will look elsewhere. In addition, for those schools accredited by the ABA, there lurks a proposal to increase the accreditation standards for a school to maintain a 75 percent pass rate – a rate in which not many schools currently enjoy.
In California, the second largest state in terms of bar examination takers, law school deans have a solution. They have come together and proposed to the State Bar to lower California’s bar pass cut line from its current of 1440 to anywhere from 1350 to 1390. This proposal has created quite a controversy and consequently the State Bar commissioned several studies and conducted opinion polls of lawyers, students and the general public.
A detailed report was developed and recently forwarded to the State Supreme Court for their decision. In the report, the State Bar recommends keeping the cut pass line at 1440 and commission more studies, while the committee of law school deans recommends reducing the cut pass line. As for the public opinion polls, more than 80 percent of current attorneys support keeping the current cut line or increasing it, while almost 55 percent of the general public are in accord, with only about 20 percent of current law students wishing to keep the current cut line.
In addition, the California State Bar Board of Trustees has recently declared “public protection” as one of the most important missions of the State Bar, and “public protection” was also at the forefront of the discussion concerning lowering the bar examination pass cut line. Given the “public protection” issue, coupled with the State Bar recommendation, and the public opinion polls, I will go out on a limb and predict that the California Supreme Court will not lower the cut line.
However, an interesting fact did emerge from all of this analysis – generally the decline in the bar pass rate is not due to lower scores on the MBE. In fact, the pass rate for just the MBE questions have remained relatively steady over the last twenty years. It was determined that the lower bar pass rates were due to a higher failure rate on the essay questions.
This revelation started the blame game. As discussed in recently published periodicals, some authors attribute poor essay writing to the lowered standards in law schools. Others point the finger at the general knowledge and writing skills of “those Millennials.” And others say it is a combination of both.
Frankly, I do not see any positive outcome in expending energy on pointing fingers. Time would be better spent on finding a solution. From my point of view, the best solution would be one which both resolves the problem of the lower bar pass rate, and preserves “public protection.”
In examining the problem a little closer, what has surfaced are four factors which are causing the lower essay scores: Students are having difficulty following the call of the question; they are not spotting a sufficient number of issues in the fact patterns; they are having trouble applying the law to the facts and analyzing them; and their grammar and spelling is not up to par.