Marooned: An empirical investigation of law school graduates who fail the bar exam

Journal of Legal Education

Volumn 60, Issue 1, 2010, Pages 3-40

  Yakowitz, Jane ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 80052426189     PISSN: 00222208     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (55)

1. See 1995 Statistics, The Bar Examiner, Vol. 65 No. 2 (May 1996), available at www.ncbex.org/uploads/user-docrepos/650296-1995-Statistics.pdf
2. 1998 Statistics, The Bar Examiner, Vol. 68 No. 2 (May 1999), available at www.ncbex.org/uploads/user-docrepos/680299-1998statistics.pdf
3. ; 2005 Statistics, The Bar Examiner, Vol. 75 No. 2 (May 2006), available at www.ncbex.org/uploads/user-docrepos/2005stats.pdf.
4. The national bar passage rate slid steadily from 70 percent in 1995 to 64 percent in 2005. At the same time, minority enrollment during this period has increased. Black law school enrollment at ABA-accredited law schools has outpaced law school growth by a 3:1 ratio since 1980. ABA Statistics, available at http://www.abanet.org/legaled/statistics/stats.html.
5. But note that between 2005 and 2008, national bar passages began to increase again, reaching 71 percent by 2008. 2008 Statistics, The Bar Examiner, Vol. 78 No. 2 (May 2009), available at www.ncbex.org/uploads/user-docrepos/2008- stats.pdf.
6. The 1993 National Survey of College Graduates is available through the National Science Foundation at www.nsf.gov/statistics/sestat/.
7. The LSAC Bar Passage Study ("BPS") data and documentation are available at www.law.ucla.edu/sander/Systemic/Data.htm.
8. The "After the J.D." data and documentation are available by request from the American Bar Foundation, www.americanbarfoundation.org/ publications/AftertheJD/AJD-Data-Access.html.
9. Harry J. Holzer & David Neumark. Affirmative Action: What Do We Know?, 25 J. Policy Analysis and Mgmt. 463 (2006).
10. Andrea A. Curcio, A Better Bar: Why and How the Existing Bar Exam Should Change, 81 Neb. L. Rev. 363 (2002);
11. Society of American Law Teachers Statement on the Bar Exam, 52 J. Legal Educ. 446 (2002);
12. Lorenzo A. Trujillo, The Relationship Between Law School andthe Bar Exam: A Look at Assessment and Student Success, 78 U. Colo. L. Rev. 69 (2007).
13. See, e.g., Richard Sander, A Systemic Analysis of Affirmative Action in American Law Schools, 57 Stan. L. Rev. 367 (2004);
14. Jesse Rothstein & Albert Yoon, Affirmative Action in Law School Admissions: What Do Racial Preferences Do?, 75 U. Chi. L. Rev. 649 (2008);
15. Ian Ayres & Richard Brooks, Does Affirmative Action Reduce the Number of Black Lawyers?, 57 Stan. L. Rev. 1807 (2005);
16. Richard Sander, A Reply to Critics, 57 Stan. L. Rev. 1963 (2005). These articles represent literature rising out of the mismatch debate.
17. Deborah J. Merritt, Lowell L. Hargens & Barbara F. Reskin, Raising the Bar: A Social Science Critique of Recent Increases to Passing Scores on the Bar Exam, 69 U. Cin. L. Rev. 929, 965-67 (2001). The authors cite Stephen Klein &
18. Roger Bolus, The Size and Source of Differences in Bar Exam Passing Rates Among Racial and Ethnic Groups, The Bar Examiner, Vol. 66 No. 4 (Nov. 1997), available at www.ncbex.org/uploads/user-docrepos/660497-Klein-Bolus.pdf, for the proposition that states with lower cut scores have smaller racial group disparities. But Klein and Bolus also explain that poor test reliability can cause racial disparities to drop (because, at the extreme, completely random outcomes would eliminate differences entirely). They do not advocate for lowering standards or test reliability. Moreover, a California Bar study performed by Stephen Klein found that if California lowered its cut score by small increments, the racial gap would enlarge rather than decrease;
19. minorities would pass the bar at higher rates, but whites would pass the bar at much higher rates. Stephen Klein and Roger Bolus, Comparisons of Eventual Passing Rates in the 1985 and 1986 Cohorts, PR-88-6 (1988), available at www.seaphe.org/topic-pages/california-bar-lawsuit.php.
20. Joe Baker & Brian Jorgensen, Leaving the Law: Occupational and Career Mobility of Law School Graduates, 50 J. Legal Educ. 16 (2000).
21. In the course of performing my own research, I have verified many of Baker and Jorgensen's results.
22. See, e.g., After the J.D., The University of Michigan Law Alumni Data Set 1967-2000; Chicago Lawyers Survey, 1975;
23. Chicago Lawyers Survey, 1994-1995; Survey of Lawyers in the Metropolitan New York Media Market, 1989; National Survey of Lawyers' Career Satisfaction, 1984-1990.
24. Many other databases and statistical studies are available on the American Bar Association website, http://new.abanet.org/centers/diversity/Pages/ statistics.aspx.
25. Interview with Richard Sander on After the J.D. study design deliberations on this point.
26. 15bias calls into question research results that rely on this data as an accurate record of bar outcomes. See, e.g., Richard O. Lempert, David L. Chambers & Terry K. Adams, Michigan's Minority Graduates in Practice: The River Runs Through Law School, 25 Law & Soc. Inquiry 395 (2000).
27. "A caution in these data is that the earliest pass information for 967 (approximately 4 percent) of these students was obtained only from public lists of passing applicants published by jurisdictions unwilling to provide bar passage information for this study. Public lists do not include names of failing examinees. Thus, including those 967 students in counts of those who passed the first time could slightly inflate the reported first-time pass rates." Linda F. Wightman, User's Guide: LSAC National Longitudinal Data File 10 (1999), available at www.law.ucla.edu/sander/Systemic/Data.htm.
28. Questions about post-secondary degrees, employment settings, and licensing allow us to identify law school graduates and practicing attorneys. The licensing question in combination with questions about the reasons for taking a job out-of-field helped us identify subjects who probably failed the bar.
29. Stephen Klein's psychometric studies are available at http://www.seaphe.org/topic-pages/california-bar-lawsuit.php.
30. See 2005 Statistics, The Bar Examiner, supra note 1, at 25-26.
31. Stephen Klein, A Comparison of Initial and Eventual Passing Rates on the California Bar Examination, PR-87-5 (1987), available at www.seaphe.org/topic- pages/california-bar-lawsuit.php. I am quoting the statistic from the 1977 cohort because this cohort had the opportunity to take the bar up to seven more times. The cohorts from later years had correspondingly fewer opportunities to retake the bar exam.
32. LSAC National Longitudinal Bar Passage Study User Guide, at 4-5 (available upon request).
33. Wightman, User's Guide, supra note 15, at 4-5.
34. U.S. Census Report Table 599, available at www.census.gov/compendia/ statab/tables/09s0599.pdf.
35. The ABA provides a precise number of J.D. degrees awarded by ABA-accredited schools between 1981 and 2007. Using the first of the methods described here, there are about 100,000 never-passers younger than age fifty (that constitutes 10 percent of the 1.03 million J.D.s awarded in the period). J.D. and LL.B. Degrees Awarded 1981-2006, available at www.abanet.org/legaled/ statistics/stats.html.
36. See 1996 Statistics, The Bar Examiner, Vol. 66 No.2 at 15, 17 (May 1997), available at www.ncbex.org/uploads/user-docrepos/660297-statistics1996.pdf
37. 1997 Statistics, The Bar Examiner, Vol. 67 No.2 at 17, 19 (May 1998), available at www.ncbex.org/uploads/user-docrepos/670298-1997statistics.pdf. The Bar Examiner does not report eventual bar-passage rate, so if bar-takers are becoming more persistent and making more attempts, these two trends might not actually be in conflict.
38. Stephen Klein & Roger Bolus, The Size and Source of Differences in Bar Exam Passing Rates Among Racial and Ethnic Groups, supra note 8, at 12;
39. Stephen Klein, An Analysis of the Relationships Between Bar Examination Scores and an Applicant's Law School, Admissions Test Scores, Grades, Sex, and Racial/Ethnic Group, 79-1P (1979) (showing in Table 4 Regressions that adding race and gender to the set of controls do not improve the explanatory models as long as LGPA, LSAT, and school tier are included);
40. Stephen Klein & Roger Bolus, Analysis of July 2004 Texas Bar Exam Results by Gender and Racial/Ethnic Group (2004), available at http://www.ble.state.tx.us/one/analysis-0704tbe.htm [hereinafter Texas Bar Study].
41. Andrew Mroch et al., Impact of the Increase in the Passing Score on the New York Bar Examination: February 2006 Bar Administration at 81 (2006), available at www.nybarexam.org/press/press.htm [hereinafter New York Bar Study].
42. Id. at 47; Stephen Klein, Research on the California Bar Examination: A Ten Year Retrospective, PR 82-5 (1982), available at www.seaphe.org/topic-pages/ california-bar-lawsuit.php. After controlling for admissions credentials, the differences were minor; women performed better on the essays and worse on the multistate bar exams.
43. Stephen Klein, An Analysis of the Relationship Between Initial Score and Eventual Pass/Fail Status on the California Bar Examination, 81-9PR (1982), available at www.seaphe.org/topic-pages/california-bar-lawsuit.php (finding that 4 percent of males made no subsequent attempt at passing a bar after failing once, compared to 2 percent of females).
44. Parental education is the only variable tracking socio-economic status in the survey.
45. Jonathan D. Glater, Aspiring Lawyer Finds Debt is Bigger Hurdle Than Bar Exam, N.Y. Times, July 2, 2009, available at http://www.nytimes.com/2009/07/02/ business/02lawyer.html. This is no doubt an anomalous case. The bar applicant has more than $400,000 in education loans. Perhaps the Bar had some reason to believe the bar applicant would be at a heightened risk for commingling his client's funds with his own, or had some other reason to believe the risks to clients were unacceptably high in this case. Still, since much of the debt seems to have accumulated while the bar applicant studied for multiple sittings of the bar examination, the state did play a role in the creation of this conundrum.
46. I have compared the college GPA of never-passers in the bar passage study sample to the college GPAs of four-year college goers in the Department of Education's High School and Beyond study, a national longitudinal study of high school students who graduated from college around 1992, available at http://nces.ed.gov/surveys/hsb/.
47. See also Stephen Cole & Elinor Barber, Increasing Faculty Diversity 120 (2003).
48. The Bar Passage Study asked for the size of monthly loan repayments in $100 intervals. The median never-passer fell at the end of the $301-$400 category
49. Baker & Jorgensen, supra note 9, at 23 (Table 3).
50. The 1990 Census's fertility information is incomplete, so most J.D.s did not have data for 1990 that could be compared to the 1993 survey. But of those who did, 7 percent reported
51. children in the 1990 Census and reported not living with their children in the NSCG survey. This is most likely explained by separation or divorce, or by adult children leaving the home.
52. Linda Loury & David Garman, College Selectivity and Earnings, 13 J. Labor Econ. 289, 297 (1995). Loury and Garman focused on differential labor market outcomes for black and white college graduates, and found that an additional GPA point raised earnings by about 9.5 percent for whites, and by about 25 percent for blacks.
53. See http://www.nyls.edu/news-and-events/releases/bar-pass-rate.
54. Other law schools and legal educators are using quantifiable measures of improvements in learning and post-graduation success to assess their law schools. See, e.g., the Law School Survey of Student Engagement, available at http://lssse.iub.edu/html/about-lssse.cfm
55. William Henderson, Measuring Outcomes: Post-Graduation Measures of Success in the U.S. News & World Report Law Schools Rankings, 83 Ind. L. J. 791 (2008).