The High Cost of Lowering the Bar
Law Review Article
cut scores, minimum competence, bar performance impact, lawyer discipline
The culmination of a law student’s educational journey is taking and passing a state bar exam, the final step to professional licensing as an attorney. The passage of a bar exam, once an arduous but almost guaranteed rite of passage for a law school graduate, has transitioned to a genuinely precarious proposition over the last decade. In July 2018, nationwide performance on the bar exam reached the lowest level since 1984. In one of the largest and most heavily affected states, California, the pass rate on the July 2018 bar exam was 40.7%, reaching a 67-year low. The final step in the process of becoming a lawyer has now become uncertain for more law graduates than at any time in recent memory.
The steep decline in bar pass rates over the last decade has prompted many states to consider lowering the bar exam passing score (often called the “cut score”). The Supreme Court of California commissioned a series of studies from the State Bar of California to reexamine the bar exam. In 2017 the California Supreme Court ultimately decided to leave the passing score in place at that time. But the continuing declines in pass rate in 2018 in California and across the nation have reignited the debate. The controversy has caused many to wonder that the role and even purpose of the bar exam is, and the Supreme Court of at least one major state (Texas) has asked for a task force report about whether to effectively abolish the bar exam by adopting a “diploma privilege.”
The process of licensing lawyers through the use of a written bar examination is one that took hold in the early twentieth century and gained momentum through the creation of the National Conference of Bar Examiners around mid-century. The bar exam is designed as a test of minimum competence of prospective lawyers. It tests legal reasoning, and bar exam scores correlate with other measures of legal ability. Like any test, it is not perfect. Scrutiny of its imperfections has highlighted a rift between the licensing authorities and law schools. But much of this debate centers on generalizations without evidence about the effect that changes to the bar exam may have.
To help provide evidence for a more meaningful debate, we have examined the relationship between bar exam scores and career discipline rates. In this Essay, we present data suggesting that lowering the bar examination passing score will likely increase the amount of malpractice, misconduct, and discipline among lawyers. Using a large dataset drawn from publicly available California State Bar records, our analysis shows that bar exam score is significantly related to likelihood of State Bar discipline throughout a lawyer’s career. We investigate these claims by collecting data on disciplinary actions and disbarments among California-licensed attorneys. We find support for the assertion that attorneys with lower bar examination performance are more likely to be disciplined and disbarred than those with higher performance.
Although our measures of bar performance have only modest predictive power of subsequent discipline, we project that lowering the passing score would result in the admission of attorneys with a substantially higher probability of bar discipline over the course of their careers. But we admit that our analysis is limited due to the imperfect data available to the public. And we do not infer a causal relationship between low cut scores and high discipline rates. For a precise calculation, we call on state licensing authorities to use their internal records on bar scores and discipline outcomes to determine the likely impact of changes to the passing score.