The Science of Passing the Bar Exam: Does First-Year Torts Really Matter?

Every year, thousands of law school graduates leap into the nerve-wracking and costly process of preparing for the bar exam. The bar consists of two days of testing (three in California) on memorization and comprehension of specific areas of law. Failure is hardly uncommon: various estimates place the passage rate at roughly 70 percent, while the failure rate in California was a whopping 56 percent in 2004.

Although the subjects tested on the exam are openly advertised, rarely change, and include popular topics like criminal and property law, many people find themselves facing the bar having taken few, if any, law school classes on these subjects. While many law schools do require that students take a certain number of classes on bar topics, others don’t, and many students elect not to load up on “overlapping” courses.

In either case, a question arises: how much does a student’s law school courseload affect his or her chances of passing the bar?

Douglas Rush, a former lawyer and assistant dean at the St. Louis University Law School (he’s currently working toward a Ph.D. in higher education), has been gathering research on this question. He and his co-author, St. Louis Univ. research methodology associate professor Hisako Matsuo, have written the paper “Does Law School Curriculum Affect Bar Examination Passage?” scheduled for publication in the upcoming Journal of Legal Education. In it, Rush writes:

The “conventional wisdom” among law school faculties and deans is that law students, especially law students who academically rank low in their class, should take as many of the courses whose subject matter is tested on state bar exams (i.e. contracts, torts, property, etc.) as possible in order to improve their chance of passing state bar exams…. Many law schools mandate that low-ranked law students take these courses in their second and third years of law school in the belief that doing so increases the ability of those students to pass state bar examinations.

To test this theory, Rush and Matsuo documented every student’s courseload for five different graduating classes at the St. Louis Law School, analyzing the number of bar topic courses taken against bar passage rates the first time the students sat for the exam. Their results were unequivocal: no relationship existed between law school courseloads and the passage rate of students ranked in the first, second or fourth quarters of their law school class, while only a weak relationship existed for students who ranked in the third quarter. Overall, Rush writes, “students in the upper two quartiles passed the exam at an extremely high rate and those in the fourth quartile failed at a high rate, regardless of which classes they took in law school.” The researchers repeated the test in 2007 using data from the Hofstra University School of Law, with identical results (which do not appear in the study).

Whether these results should be taken as ammunition for students trying to weasel out of bar-covered courses or as a hint to law professors to start shifting their teaching focus towards practical information remains to be seen. But the study does support a conclusion that most law students and lawyers already know: no matter what you took or how well you did in law school, the bar exam is an experience all its own.

[Disclosure: I took and passed the New York bar exam on the second try in 2005, having taken a total of four courses in law school that overlapped with the thirty-plus topics on the bar and graduating somewhere in the middle to lower half of my law school class.]


Katwoman

This isn't surprising to me. I took (and passed) the California bar in 1994 after doing well in a good law school. Taking the bar review course was a revelation - oh, THAT'S what my incomprehensible economic-theory-obsessed contracts professor was pontificating about? Too many professors are incapable of conveying the pragmatic fundamentals before moving on to the so-called theoretical level that often serves more to obfuscate and confuse than to enlighten. You can't teach quantum physics when you haven't bothered to teach algebra first.

Bali

Many lawyers from countries other than the US take the CA bar exam. This is because passing the CA bar allows you to practice in several US states. Now, given that the US Bar exam tests an individuals understanding of American laws and the constitution -arguably lawyers from countries other than the US don't fare too well. This could be one of the reasons why the CA failure rate is inflated.

Smedley Underfoot

I just took the NY Bar. A classmate of mine, taking it at the same time, used to work in certification testing for a major industry. She said that, having studied testing theory, both the NY Exam and the multistate were poorly designed if what you were trying to do was test knowledge and comprehension of the law.

If your goal was to make sure your passage rate was less than 60%... it was well designed for that.

Conor

California breaks down their bar exam results on their website with great detail, which provide some insight in to who is passing and failing the exam. They have the results broken down by first time takers pass rate, repeaters pass rate, pass rate broken down by race and gender (for those self-reporting)and by school attended.

The pass rate is much higher during the July examination than it is during the February examination, at least comparing July 2006 with February 2007.

Here are some highlights:

July 2006 General bar exam takers (excluding attorneys sitting from other states):
-Overall pass rate: 51.8% (4,616 out of 8,908); -First-timers pass rate: 67.4% (4221 out of 6261); -Repeaters pass rate: 14.9% (395 out of 2647).

February 2007: General bar exam takers (excluding attorneys sitting from other states):
-Overall pass rate: 36.8% (1,900 out of 5,167); -First time takers: 53.1% (829 out of 1,560); -Repeaters: 29.7% (1071 out of 3,607).

As you can see, the repeat exam takers drag the average down significantly. FWIW, the best group passage rate for July 2006 were students from U. of Texas (22 out of 23, or 96%). The best rate amongst demographic group was white males from ABA approved schools within California: 79% (2,486 total passing).

I studied this data pretty closely when I was studying for the bar exam.

Here are the links:

http://www.calbar.ca.gov/calbar/pdfs/admissions/Statistics/JULY2006STATS.pdf
http://www.calbar.ca.gov/calbar/pdfs/admissions/Statistics/FEBRUARY2007STATS.pdf

Read more...

htb

What I'd like to know is why the test is run as one enormous, energy-sucking, health-destroying exam instead of in phases. Couldn't you take the multiple choice section at one time, and the essay section a week (or a month) later? If you don't score high enough on the multiple choice section, they don't even grade the essays. So why should you have to write essays that they're just going to dump in the trash?

Garbanzo

My wife, who's an attorney, has always maintained that a reasonably intelligent person could embark on a year of self-study, take the leading bar prep courses, and pass the bar. Would love to try, but it seems the pesky bar associations require you to actually have a JD before trying this. Seems like protectionism to me...

Charles Paul Hoffman

Garbanzo -

In New York, you can get around having a JD by doing completing one year of law school and doing an apprenticeship with a licensed lawyer. From what I recall, there are about 5 people who take the bar this way each year. While practically all of them fail, I am not sure if they embarked on the extensive studying you refer to.

Let us know how it works out for you... ;)

Jeff

Garbanzo,
Come to Virginia. I'm pretty sure you can still take the bar exam here without going to law school.

Angryman

I disagree with #1. You absolutely can (and I would argue should) teach Quantum Physics before you teach Algebra. Just don't expect students to pass an Algebra test after having only studied Quantum Physics. Nothing wrong with rambly higher level theory stuff in law school unless there is an expectation that this is preparation for the bar.

gobuffs

The bar exam can be likened to a game between the multi-state test creators and the multi-state test preparation folks--with both sides being funded by those prospective attorneys who must take the test. When the passing rate gets too high, the test making firm increases the difficulty, prompting a corresponding adjustment from the test preparation companies.

When I took the bar (a long time ago), it was accepted that the test had nothing whatsoever to do with assessing your ability to practice law
and very little if any connection to measuring what you had learned in law school. It was/is a "hoop" that must be passed through in order to become a lawyer.

The bar exam process certainly does weed out obvious incompetents and frauds. However, its real value for government/society may lie in creating the appearance/perception about the existence of an "ability based filter"--which in turn creates a certain trust/prestige for attorneys and for the legal system. Average citizens probably don't know or care that the bar exam may not measure anything other than the ability to pass a bar exam, but they do like to see a government imprimatur of approval like "passed the bar exam."

I wouldn't know, but can the same be said of the board certification process for doctors?

Read more...

whrlygrlz

The bar exam has nothing to do with the knowledge, skills and professionalism necessary to be a good lawyer. It's all about creating barriers to entry to preserve the livelihoods of those already in possession of bar membership. People may do extremely well in law school and fail the bar exam. People may do very poorly in law school and pass the exam. The sooner we move to a system where, after a common first year core curriculum, students focus on skills acquisition, professionalism, and practice-based training, the better the crop of lawyers we'll be turning out. But the bar exam has nothing to do with being a good lawyer.

Mike

htb:

Louisiana actually does something along those lines. Their bar exam is a M-W-F affair, with three essays each day on various subjects.

You need to pass seven of those nine essays, with at least two being in the Civil Law, I think. If you don't get the seven you need, you "conditionally fail" and come back and just answer a couple of essays to get your seven.

PErsonally, I think that the entire exam being "one enormous, energy-sucking, health-destroying exam" is part of the challenge. Most exam takers would have no problem passing otherwise.

UCLA 02

When I graduated UCLA in 02, one of the assistant deans gave a pep talk to 2Ls and 3Ls about the bar, and noted a pretty heartening statistic--that UCLA grads with a certain GPA and who had taken "X" number of bar courses (8 or 10 as I recall) had a 100% pass rate on the CA bar going back something like five years. Richard Sander (the law prof more well known for his analysis of "progressive" admission policies and post-law school success) did the study. It may be published somewhere. Of course, California only tests twelve subjects, or something, not the 30 like NY does.

DJH

"People may do extremely well in law school and fail the bar exam. People may do very poorly in law school and pass the exam."

Intriguing that you write this without blinking despite the entire post being centered around a data point to the contrary. Since you apparently missed it: "students in the upper two quartiles passed the exam at an extremely high rate and those in the fourth quartile failed at a high rate".

Your larger point about the disconnect between the exam and the skills demanded by the profession may be sound, but this is an exceptionally poor way to argue the case.

sygyzy

How much does it cost to take the exam in Virginia? New York?

Anon

Does California break out the passage rate between those who went to accredited ABA law schools versus those who went to the CBA (California only) approved law schools? I'd like to see that data...

Caleb Powers

The bar exam is largely an exercise in re-learning things that were learned during the first year of law school. In my years of practice, though, I came to understand why they test in many of these areas: tort law, contract law, and other basic legal principles underlie all areas of law and must be understood in order to effectively practice law.

I agree with whomever said that a reasonably intelligent person could take a year of private study, and take a couple of bar review courses and pass the bar exam. This would be more formal training than generations of lawyers ever had. However, as evidenced by some of the people who have actually gone to law school and passed it, passing the exam doesn't mean you know enough to be a lawyer. The way you learn to practice law is by doing it, hopefully with people who know more than you do. A newly minted lawyer is, as one of my partners said once, a menace to society.

Read more...

Garbanzo

#7 is right (see http://www.nybarexam.org/barexam.htm), but it appears there is still a multi-year investment of time involved. Upon further study, it appears that only Vermont exempts you from any law study or apprenticeship in order to take the bar. Now to begin working on getting board certified without an MD...

Alexander Hoffman

I don't buy this dismissal of coursework, if you base it on these two studies.

1) The course doesn't matter for the top of the class.

2) The coursework doesn't matter for the bottom of the class.

3) Coursework matters in the group that might or might not pass.

So, it makes a difference in the group that is near the line? Well, that makes a lot of sense. In fact, that is what I would expect. In fact, it matches what schools are accused of doing in response the proficiency standards demanded by NCLB. They are said to focus their efforts on those students near the line, to maximize their impact.

Well, the 3rd quartile is near the line. That's where the impact of taking these classes shows up.

CC

It certainly is true that a JD may not be required to pass the bar just as an MBA is not required to become a CEO.

Realistically though, whose going to hire a lawyer who doesn't have a law degree?