Most of the law school graduates who took the Michigan bar exam in July got good news last week. 61% passed. First-time takers, as usual, fared better -- 71% passed. The breakdown by law school can be found below the fold. While the passers can now get on with the next formidable task, the business of being a lawyer, many others are left to struggle with the need to try again.
The Michigan stats are consistent with nationwide trends -- lower passage rates in a declining pool of bar applicants. According to Bloomberg Business, the average score on the multiple-choice portion is at the lowest level since 1988. The mean score was 139.9, down from 141.5 the year before.
The overall decline in passage rates has been explained by Erica Moeser, the CEO of the National Conference of Bar Examiners, as predictable based on a recent overall decline in the test-taking aptitude of law students as measured by LSAT scores. Moeser's explanation has been sharply criticized within the legal academy. This Legal Whiteboard post is a good representation of the criticism.
Underlying the controversy about whether recent multi-state bar exams have been fair is the larger question of whether the bar admissions process is the right gate-keeping mechanism for assuring essential quality in the provision of legal services. Interest in the question is fueled by a weak labor market that has given rise to widespread concerns that the market is flooded with law school graduates who have cleared the bar exam hurdle but are unemployed and not "practice-ready." Whatever the actual magnitude of that phenomenon, would brainstorming outside of conventional conceptions and assumptions lead us to a radically different way to assure the public that legal practitioners are qualified for the work? The State Bar's 21st Century Practice Task Force is taking on that challenge.
In a provocative post at 2Civility, Michelle Silverthorn (MLaw '08), Diversity and Education Director at the Illinois Supreme Court Commission on Professionalism, asks the ultimate question: "Should We End the Bar Exam?" Most of us who have survived the bar exam probably react to that suggestion the same way Marines might react to the idea of abolishing boot camp. But Silverthorn's questions should not be ignored:
Which is it? Is the bar exam a protectionist enterprise that overburdens minority and low-income students, or is it a legitimate method of creating minimal standards that protect American consumers?
But more importantly, does the answer even matter? We are now solidly in a world where people are relying more and more on peer reviews and less on professional evaluations. Would it be sufficient to have the “market” decide which lawyers are qualified and which are not? Perhaps we should invest our bar exam resources in creating a robust peer review and disciplinary system. (Peer review alone would be insufficient; in his “consumer protection” response to Mendenhall, Professor Scott Fruehwald cogently explains why.)
Finding the best possible answers to these questions is only part of the puzzle of solving the best legal future challenge. The range of issues being addressed by SBM's 21st Century Practice Task Force can be found here. To both the 61% of July's test-takers we now welcome into our profession, as well as the 39% who must try again, we commit our best effort.