The short answers are: 'it depends' and 'probably.' Why? Because students, circumstances, and bar results have changed in the last decade.
Traditionally, because of the general difficulty of state bar exams, a majority of law school graduates had chosen to take some form of external bar preparation course. Despite the rigors of law school and the emphasis on legal analysis, culminating in writing essay exams, state bar exams were found to be difficult to pass.
Why the System is Flawed
Within the traditional setting, law schools had emphasized the precepts of IRAC (Issue, Rule, Analysis, Conclusion), and thus concentrated their classes on these precepts to culminate in training students to be very adept at approaching, analyzing, and writing essay exams. For bar exam takers, this left a gap - the dreaded multiple choice questions called the MBE.
As a result, commercial companies targeted law graduates with bar preparation courses. Although most companies advertised overall bar preparation courses (MBE, essays & performance exams), the courses emphasized how students could approach and answer the MBE questions. Obviously, this was the logical extension for these bar preparation courses since those students were already well immersed in essay writing from their three years in law school.
With regard to teaching how to master the MBE, some of these companies were good, and others... not so much. However, because of these courses, many students were able to successfully navigate the morass of those dreaded MBE questions. To this day, those companies who continue to offer external bar preparation courses have remained true to their original academic/business plan. Thus, their course emphasis remains on the MBE questions.
During the past decade, circumstances have changed. First, as widely reported in publications such as the New York Times, Los Angeles Times, the ABA Journal and others, law school enrollment has been on a steady decline. As a result, many law schools have lowered entrance requirements. This change, coupled with other academic and societal changes, have helped create a different environment for the law student today.
As a consequence, bar pass rates in many states (e.g., California, New York and several others) have been on a steady decline. As reported in the JD Journal in October 2015, “law schools have lowered their admission standards. Fewer people are applying to law school. In order to keep up enrollment numbers, schools are admitting students with low LSAT scores they previously would have rejected. In 2014, schools saw the result of their action - bar pass rates were the lowest in decades.” In fact, as also reported in the JD Journal in November 2017, the ABA has sanctioned ten law schools for lowering their admission standards.
The trend of lower pass rates continues, and law school deans are concerned for a couple of reasons. First, a published high pass rate is a marketing incentive to attract new students to their school, and if it is declining, students will look elsewhere. In addition, for those schools accredited by the ABA, there lurks a proposal to increase the accreditation standards for a school to maintain a 75 percent pass rate - a rate in which not many schools currently enjoy.
In California, the second largest state in terms of bar examination takers, law school deans thought they had a solution. They came together and proposed to the State Bar to lower California’s bar pass cut line from its current of 1440 to anywhere from 1350 to 1390. This proposal created quite a controversy and, consequently, the State Bar commissioned several studies and conducted opinion polls of lawyers, students, and the general public.
A detailed report was developed and forwarded to the State Supreme Court for their decision. In the report, the State Bar recommended keeping the cut pass line at 1440 and commission more studies, while the committee of law school deans recommended reducing the cut pass line. As for the public opinion polls, more than 80 percent of current attorneys supported keeping the current cut line or increasing it, while almost 55 percent of the general public were in accord, with only about 20 percent of current law students wishing to keep the current cut line.
In addition, the California State Bar Board of Trustees has recently declared “public protection” as one of the most important missions of the State Bar, and “public protection” was also at the forefront of the discussion concerning lowering the bar examination pass cut line. Given the “public protection” issue, coupled with the State Bar recommendation, and the public opinion polls, the California Supreme Court moved very quickly after receiving the report and decided not to lower the cut line.
In making its decision, the Supreme Court stated, “The court … encourages the State Bar and all California law schools to work cooperatively together and with others in examining:
1) Whether student metrics, law school curricula and teaching techniques, and other factors might account for the recent decline in bar exam pass rates
2) How such data might inform efforts to improve academic instruction for the benefit of law students preparing for licensure and practice; … [e]xamination of these matters could shed light on whether potential improvements in law school admission, education, and graduation standards and in State Bar testing for licensure, combined with effective regulatory oversight of legal education, could raise bar exam pass rates and thereby reduce financial hardship for exam takers, and boost the availability of competent and effective attorneys across all demographics and for all Californians.”
However, an interesting fact did emerge from all of this analysis - generally, the decline in the bar pass rate is not due to lower scores on the MBE. In fact, the pass rate for just the MBE questions has remained relatively steady over the last twenty years.
It was determined that the lower bar pass rates were due to a higher failure rate on the essay questions and to a lesser extent the performance exams.
This revelation started the blame game. As discussed in recently published periodicals, some authors attribute poor essay writing to the lowered standards in law schools. Others point the finger at the general knowledge and writing skills of “those Millennials.” And others say it is a combination of both.
Frankly, I do not see any positive outcome in expending energy on pointing fingers. Time would be better spent on finding a solution. From my point of view, the best solution would be one which both resolves the problem of the lower bar pass rate and preserves “public protection.”
In examining the problem a little closer, what has surfaced are four factors which are causing the lower essay and performance exam scores:
1) Students are having difficulty following the call of the question
2) They are not spotting a sufficient number of issues in the fact patterns
3) They are having trouble applying the law to the facts and analyzing them
4) Their grammar and spelling is not up to par
The last factor, some call the “millennial” factor. This is because, today texting, tweeting, Instagramming and emailing are the most common forms of writing. As a result, good composition writing is rapidly becoming a lost art, especially the ability to express logically and critically what’s at issue. Concerning the first three factors, they are skills which traditionally were developed in law school.
The merging of these events has demonstrated a need for remedial law school tutoring, but most importantly better and different bar preparation courses which stand on their own, separate from the law school academic work and provide all the skills necessary to pass the bar examination. This is a solution which would satisfy both the lower pass rate and the public protection aspects of the problem.
What We Have Done as a Result
As a result, over the last several years, I have developed a new and unique system to address all of these new issues, and started a new company to bring these materials to law students. The company, Side Bar, has now introduced both bar examination preparation and remedial law school course programs based upon new principals never before offered to the law student. Each of the programs are separate and all-inclusive. They are 100% online, self-paced, and contain no lectures to attend or listen to.
The Side Bar programs include new methods for learning and retaining the law, while teaching new methods of how to master:
- Writing essay exams
- Performance exams; and the
- MBE multiple choice questions
- Including tips never before released
The bar preparation course, in addition to having a comprehensive MBE program, delves deeply into the art of essay writing and walks students through a step-by-step process broken down by subject, giving the students the requisite skills to write quality essays and ultimately pass the bar examination.
ThoughtCo. How to Pass the Bar Exam https://www.thoughtco.com/how-to-pass-the-bar-exam-2154761
New York Times. A Steep Slide in Law School Enrollment Accelerates. https://dealbook.nytimes.com/2014/12/17/law-school-enrollment-falls-to-lowest-level-since-1987/
ABA Journal. What Do Falling Bar-passage Rates Mean for Legal Education--and the Future of the Profession? http://www.abajournal.com
Los Angeles Times. Fewer Law School Graduates Pass Bar Exam http://www.latimes.com/local/education/la-me-bar-exam-20141208-story.html
Above the Law. To Cut Or Not To Cut (The Bar Exam Passing Score) https://abovethelaw.com/2017/07/to-cut-or-not-to-cut-the-bar-exam-passing-score/
JD Journal. 10 Law Schools Sanctioned by the ABA https://www.jdjournal.com/2017/11/27/10-law-schools-sanctioned-by-the-aba/
State Bar of California. Final Report on the 2017 California Bar Exam Standard Setting Study of the State Bar of California https://www.calbar.ca.gov/Portals/0/documents/communications/CA-State-Bar-Bar-Exam09122017.pdf
In re California Bar Exam, Supreme Court case # S244281 https://newsroom.courts.ca.gov/news/supreme-court-issues-letter-relating-to-in-re-california-bar-exam
Above the Law. California Supreme Court Issues Decision On Bar Exam Cut Score. https://abovethelaw.com/2017/10/california-supreme-court-issues-decision-on-bar-exam-cut-score/
The Wall Street Journal. California Bar Exam to Stay Difficult, State’s Highest Court Rules https://www.wsj.com/article_email/california-bar-exam-to-remain-one-of-nations-most-difficult-court-rules-1508428572-lMyQjAxMTE3NDI0MDMyOTAwWj/