10 July 2007

Failure of Objective

Yet again, the organized bar has proven that it doesn't know its head from a hole in the ground, joined by the idiots now running the Bush Administration's test-happy ideocrats. In an article posted today, Leigh Jones describes the current kerfluffle over the relationship between bar-exam passage rates and ABA accreditation of law schools. (The ABA acts as the accrediting agency for law schools under a longstanding delegation by the Department of Education.) As is usual in this particular dispute, everyone is missing the point: That the bar exam, as constructed, doesn't do a damned thing to ensure the intellectual competence of new lawyers.

In its testing-happy mode, the Department of Education is demanding that the ABA require law schools to have a greater proportion of students pass the bar exam.

For schools already accredited but undergoing a periodic review, the proposal would require them to meet one of two criteria. Under the first, they would need to show that in at least three of the most recent five years, first-time test takers passed at no more than 10 points below the first-time bar passage rates for graduates of other accredited law schools taking the bar in the same jurisdiction. Also under the first criterion, schools in which more than 20 percent of their graduates take the bar exam for the first time in other jurisdictions would need to demonstrate that at least 70 percent of their first-time test takers passed during the two most recent bar-exam periods. As an alternative to the first criterion, schools would need to demonstrate that 80 percent of their graduates who took the exam anywhere in the country passed within three attempts, within three years of graduation.

"ABA Moves to Tighten Bar Passage Standards," National Law Journal (10 Jul 2007) (fake paragraphing removed for clarity). How many ways does this beg the underlying question(s)? In no particular order:

  • Initially, note the irony that the Bush Administration's Department of Education is acting in a way to take more power away from states in two areas "traditionally" committed to states — education and regulation of the legal profession. Ironically, this particular effort is yet another argument for national, not state, regulation of attorneys; if the supposed "state's rights" maroons and ideologues who actually make policy in this administration think it important to establish more measurable national standards...
  • Under the proposed rubric, almost no law school in either California or Washington State could qualify under the second standard, because so many of the graduates of those schools take the bar in those states... which have pass rates of around 50%. Conversely, it's extremely unlikely that some states with notoriously high bar passage rates will help. Then there's the "Wisconsin issue" — graduates of the University of Wisconsins and Marquette law schools are exempt from their own state's bar exam.
  • Well over 85% of the bar exam is drawn from material covered in the mandated first-year courses. Why, then, hasn't the legal profession followed the medical profession's lead and moved to a national exam covering that material shortly after it is actually studied, similar to the two-part medical boards? I suppose part of it is that most law schools are revenue-positive, meaning that they want students to continue. More subtly, this is probably part of the national-versus-state control issue.
  • Unfortunately, Jones's article mentions only administrative opposition to the ABA/DOE proposal. (Don't kid yourselves — in this instance, I have no doubt that the ABA is doing little more than tinkering with and then parroting the DOE's privately communicated directives.) I find it hard to believe that a large group of law-school deans would limit their criticism to the administrative minutiae of "passage rates."

Ultimately, though, what I find disturbing about Jones's article is that it never questions whether the bar exam, or bar exam passage rates, measure a damned thing about attorney competence. (Unfortunately, the traditional law-school exam format isn't much better... but that's for another time.) And that's for a very simple reason: With very, very rare exceptions — almost all of which concern either criminal law or trial practice — a lawyer's emphasis cannot be on coming up with "the answer" right now, but with persuasive advice that meets all of a client's needs.

For example, assume that a client comes to an attorney asking whether there's a way to get out of a particular contract (not so hypothetically, an especially abusive vanity publishing contract). What is ultimately in the client's best interest? The bar-exam answer is to look at the contract, figure out what it says and whether it is theoretically enforceable, and give essentially a multiple-choice response. That, however, ignores the relative financial and emotional situations of the parties; the power of potential publicity; jurisdiction; choice of law; counterclaims; and a wide variety of other considerations. No bar exam question ever even considers the possibility of an "efficient breach," and that's just within the contract itself. Since I've both engaged in and inherited more than one of these, I think my opinion that the "book answer" is usually wrong should get at least some weight.

The irony that today's law.com news summary also includes an article on developments in the antitrust case against the "market leader" in bar review preparation courses is just too delicious.