Brooklyn Law School unhappy with its bar passage rate

Graduates of the Brooklyn Law School (BLS) have traditionally done well on the Multi-state Bar Exam (MBE).  In July 2013, 94% of its first-time exam takers passed the MBE. In July 2014 the BLS passage rate fell to 84%, still respectable by national standards.  Not good enough though, according to Dean Nicholas W. Allard.  Dean Allard blames not BLS or its students, he blames the National Conference of Bar Examiners for making the MBE too difficult. He wants an audit of the MBE.

BLS is not alone. First time takers of the 2014 MBE did worse than first-time takers in 2013 around the country.  My own law school, University of Denver, saw 87% of its graduates pass the MBE in 2013 and 84% in 2014.  The University of Colorado scores were 91% in 2013 and 82% in 2014.  BLS and both Colorado schools are well above the national average.

In an Op-ed in the National Law Journal Dean Allard says he believes too much power rests with the National Conference of Bar Examiners. You’d have to register to read it all, but TaxProf has the salient parts. Here is an even shorter “salient parts:”

Trying to improve the broken bar-exam system for licensing lawyers has been for too long like tilting at windmills while singing “The Impossible Dream.”

There is a disconnection between what the bar exam tests and what the American Bar Association and law schools require students to learn. Graduates must enroll in costly cram courses, forgo gainful employment for almost three months and incur collectively hundreds of millions of dollars in costs and lost income to survive the semiannual culling of the herd. Nor does the bar exam, which relies heavily on questions developed and scored by the National Conference of Bar Examiners, measure what one needs to know to be an effective lawyer.

Last July’s historic nationwide drop in the bar passage rate brought into sharp focus the urgent need to overhaul a system that ill serves the public, the profession and certainly the graduates of our law schools. Over the past several months, fellow deans across the country have asked for a complete, credible and accurate explanation of the July 2014 results. We still are waiting.

I’m may be not qualified to criticize Dean Allard or BLS, which is a top law school that has produced a stellar record of graduates who went on to become names familiar to nearly all in the legal profession. However, I think he is wrong.

First of all, the purpose of the bar exam is to protect the public from anyone below a certain level of mental acuity and diligence from becoming lawyers.  The purpose of the MBE is to establish a nationwide standard for one day of a two-day exam, the second day typically devoted to the parochial laws of the state in which the applicant intends to practice.  If one thinks of the lawyers one knows or has encountered one quickly realizes that you don’t have to be genius to be a lawyer.  There is already a serious question of how well the MBE and state bar exams are protecting the public from incompetent people gaining a law license.

Moreover, and here I may be wrong, but I don’t think the MBE was suddenly made more difficult. If one applies Occams Razor, the simplest of competing explanations for any phenomenon will usually be the correct one. Law school enrollment is down nationwide because jobs for law school graduates have been shrinking for several years. It is likely that law schools are lowering their admission standards in order to keep enrollment up.  Lowering admission standards can be done without writing it up into a proclamation of intent.  There is a lot of discretion involved and it is being exercising by human beings. Human nature is such that we are not always fully conscious of changes we make in how we exercise our discretion.  Especially when a certain outcome is desired, in this case keeping a steady flow of income to your law school in order to keep your job.

Law schools have been pumping out droves of new lawyers for years. This is one of many factors that have resulted in too many lawyers chasing too few jobs.  It was inevitable that the potential pool of new law school applicants would take notice and decide to pursue a different career path. Law schools are having a hard time coping with the new reality.

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