May 27, 2005
More on the Bar Exam and Barriers to Entry
Posted by Christine Hurt

Dan Solove at PrawfsBlawg has more to say on bar exams and argues that they are poor barriers to entry.  Instead, law schools should weed out incompetent attorneys before they get in debt for a degree that they cannot use.  I definitely agree with this normatively, but I doubt this would ever happen, even if we abolish the bar exam.  As I said before, in the competitive law school market, law schools want to admit people and get their tuition.  They want them to be happy in law school and give money after they leave.  Flunking 1/3 of the class does not meet any of these goals.

Under the current situation, most people that apply to law school get in to some law school, and most people that begin law school graduate from law school.  Hardly anyone fails out of law school these days.  So, almost everyone that decides that they want to go to law school becomes a J.D. 

The bar exam weeds some of these people out.  Of course, at the majority of schools, 85-90% of all graduates pass the bar the first time they take it.  But, if you look at the USNW rankings, there are a fair number of schools with bar passage rates in the 50-60% range or even lower.  Dan seems to argue that those schools should have either not graduated or not admitted those students (or those students who don't pass the second or third time).  I wholeheartedly agree. 

I think it is outrageous to admit students to a law school with the implicit promise of their being able to practice law and then not be able to deliver that.  Of course, it's hard to know whether the students could not pass the bar because (1) they did not have the aptitude for law but were admitted to a school scrambling for applicants and tuition dollars; (2) their law school did not prepare them for the bar exam; or (3) the students from that school were not competitive in the job market and did not obtain jobs where their employers would pay for bar prep courses.

I know a lot of professors who say that the market should take care of this.  If certain law schools graduate students who will not practice law because they can't pass the bar, then people will stop apply to that law school and will stop paying tuition to them.  That does not seem to be happening.  There will always be someone who is willing to pay money to go to a law school with a 30% bar passage rate because no one believes that she will be in the other 70%.  I have no idea why this is.

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