A few days ago, my colleague Derek Muller and I posted a draft of a paper on SSRN entitled, The High Cost of Lowering the Bar. The paper analyzes a large dataset of lawyers in California and argues that the current proposal to lower the required passing score for the California Bar Exam would result in an increased rate of discipline and disbarment among the newly admitted lawyers with lower bar exam scores. We wrote the paper to provide an important consumer protection angle on the seemingly inexorable push by California law school deans to make the bar exam easier to pass.
The response to the study was almost immediate. The Wall Street Journal referenced our study in a larger article about the California Bar Exam and the Daily Journal wrote an article about our piece the next day. In the Daily Journal article, one of the most vociferous advocates for making the bar exam easier to pass, Dean David Faigman of UC Hastings, blasted our analysis as "about as irresponsible a product of empirical scholarship [he] could imagine for putting out for public consumption" and said, "God forbid anybody of policy authority should rely on that manuscript."
I thought that language was a bit intemperate for the dean of a law school, but it's standard operating procedure for Dean Faigman. After the July 2016 bar exam results were published, he attributed his school's performance to unspecified "shameful" and "unconscionable conduct" of the State Bar. Apparently what he meant by the shameful and unconscionable conduct was that the State Bar had administered the bar exam in exactly the same way as it always has since the 1980s. Dean Faigman likes to go public with over-the-top statements that are indefensible, so I can't take it too personally.
However, I do want Dean Faigman and others to understand that our analysis, far from being irresponsible, was actually an exercise of scholarly responsibility. An important public policy decision (lowering the bar exam passing score) is being evaluated right now, and the decision will affect the public for decades. My colleague and I identified a previously unnoticed risk associated with the proposal pushed by Dean Faigman and others, and called for the State Bar to analyze it. This is exactly what a responsible scholar would do given the very short amount of time that is left before a decision is made.
Because I do hope that Dean Faigman and others like him will come to agree that our analysis was an exercise of responsibility rather than a lack thereof, I have outlined below a few reasons why we published the piece when we did. I hope that Dean Faigman will agree that we have indeed acted responsibly in protecting the public interest. I especially hope that the State Bar will perform the data analysis we call for before acceding to the lobbying efforts of the California law deans who created the bar exam crisis in the first place.
First, the relationship between bar exam score and subsequent discipline that we identify is true, although we cannot identify the exact magnitude. Dean Faigman did not deny the core conclusion of our piece, that lawyers with lower bar exam scores are more likely to be disciplined. He attacked our methodology and data, but did not deny that the relationship we identify is accurate. Indeed, he would be unwise to make such a claim, as we are not the first to identify this connection. The very same thing was found in a Connecticut study sponsored by the Law School Admissions Council that did have all of the individual detailed data on the lawyers in the study. The authors of that study did not draw much attention to the bar exam-discipline connection, but it was there, buried "Model 4" of Table 8.
Second, about the lack of data that Dean Faigman criticizes... He's right that the publicly available data is not the best data to make precise estimates of the impact of lowering the bar exam passing score. Indeed, that was the whole point of our analysis--to call for the State Bar to analyze the data that we do not have access to. Our paper had one simple objective: to identify a risk associated with lowering the passing score and to encourage the State Bar to analyze the risk using its internal data. We say very clearly in the paper that "[t]he only way to make precise estimates of the impact of changing the passing score is for the California State Bar to use its internal records on bar examination scores and discipline outcomes to determine the likely fallout... Accordingly, we strongly recommend the State Bar undertake that analysis prior to changing the passing score." How is calling for an analysis of data unavailable to researchers irresponsible? Still, even the data we used, however, is more than enough to make the convincing claim for a connection between bar exam score and discipline.
Third, we did not have the option of accessing the State Bar's data. The State Bar is extremely reluctant to release data to researchers in general, in the past necessitating lawsuits to dislodge the information related to important issues of public policy. And even if the State Bar were willing to consider our request, there simply isn't time. Students are sitting for the bar in less than two months, and the deans are pressuring the State Bar to change the passing score for that test. If we had waited, the State Bar would have proceeded with its analysis without information about this important risk that (to the best of my knowledge) nobody else has identified in the context of this debate.
Finally, one of the concerns identified about our analysis by thoughtful scholars such as Deborah Merritt of Ohio State, is that low bar exam scores are not actually causing discipline, but rather merely correlated with it. The causal factors are likely others, such as the fact that lawyers who receive low scores on the bar exam also tend to come from less competitive law schools, have lower law school grades, and therefore end up in solo-practice settings or other environments where compliance with ethical rules is more challenging. I believe that Professor Merritt and other critics with similar concerns are (partially) correct about the causal arguments. It is not the failure to know Property and Torts and other subjects tested on the bar exam that causes most discipline. Discipline is likely the result of a combination of (1) the personal characteristics that cause a person to prepare inadequately for the bar exam, and (2) the practice settings where those lawyers end up, as well as other factors. But we are not claiming a causal connection between bar exam performance and discipline, as a causal relationship is not necessary to conclude that lowering the bar exam score will increase the rates of discipline.
Moreover, the fact that lawyers with low bar exam scores end up in less sophisticated practice settings, and those practice settings may be the causal factor in higher discipline rates is reason for more concern not less. The practice settings identified are those with the most vulnerable, least sophisticated clients, who are most easily exploited by lawyer misconduct or inattention. Sophisticated corporate clients who can look out for their own interests often hire large law firms where they are not at risk from lowering the bar exam score. It is the least sophisticated clients who need a trustworthy lawyer the most who will be victimized.
I would like to think that our law dean critics could be persuaded that our analysis is offering important, previously unavailable information to an imminent public policy decision. But I will settle for other, more disinterested observers finding our analysis valuable. And most of all, I hope that the media and the public will keep the pressure on the State Bar to investigate the risk of increased discipline, as the State Bar alone controls the most relevant data.
Re: California February 2016 Bar Exam - California Love Part 2 (Don't discuss specific questions)
Postby vingonza » Mon Mar 07, 2016 3:14 pm
I have been lurking on these boards for a while. The February exam was my first time attempting a repeat, sadly I was a victim of PT A in July. I have found everyone's insight to be helpful in preparation, re-assuring during the 3-day stretch of actually taking the bar, and effective for post-bar stress. It is nice to see the thoughts of people who actually know what it is like to take the bar.
I also want to give a shoutout and thank you to a male human for creating magicsheets/approsheets and for your encouraging emails throughout the process. If your name unfortunately does not appear on the pass-list this May, I would strongly encourage and recommend purchasing magicsheets/approsheets as supplements for memorizing rules (they destroy leansheets).
That being said, having been a couple weeks since the exam, I thought I would chime in on how I thought the bar went for me (mainly for purposes of getting some things off my chest).
Essay 1 (Wills/Trusts):
Did this essay first and put in about an hour and 10 mins into it. Did not discuss much on the first trust since it was essentially not going to control, just general discussion mentioning that the outcome would depend on whether the second trust effectively revoked the first one and that the first trust was revocable. Only brief discussion on wills stating that the will was valid. Talked about formation of valid trust as to the testamentary trust since validity of that trust had not been pointed out in the essay. Went into duties of the trustee, remedies, etc.
What I missed:
One big issue I realized I missed was the remedy of Constructive Trust (due to time I merely discussed briefly removal of trustee and damages). I hope that does not hurt me too much on what I believe was an otherwise competent essay.
Score Prediction: 60
Essay 2: (Torts)
Did this essay last, had about 45 mins to do it, which showed a bit towards the end in my analysis (not too bad though). Started with preliminary heading covering the rest of the essay in that insanity (belief of aliens) is not a defense to intentional torts, etc. After that I believe I hit all the main torts mentioned previously in discussion. Did not think negligence was an issue, but mentioned it very briefly in one line with short rule stating that a claim brought in negligence would not succeed. One thing I mentioned that nobody else has mentioned previously is false imprisonment during the time the chainsaw was being held up (victim believed that they could not move during that short time). It is a stretch, but I remember doing a practice essay where false imprisonment was discussed during a brief moment of a robbery where a robber held up a gun to someone, so I thought it was worth at least a mention.
What I missed:
I missed a trespass to land claim against the person claiming defense of others. Also missed trespass to chattel transferred intent (only discussed battery transferred intent). Hoping that these hiccups are not big enough to render a below passing score to what I believe was an otherwise competent essay.
Score Prediction: 65+
Essay 3: (Professional Responsibility)
Did this essay second and spent about an hour and 5 mins on it. Not much to say about this essay since I don't remember it well. All I know is that I thought I destroyed it with really good rule statements and distinctions between CA and FED.
What I missed:
Mentioned withdrawal within one of the analysis of the issues rather than having a separate heading going more into detail in the requirements of mandatory or permissive withdrawal, which hopefully does not affect score too much.
Score Prediction: 65+
PT A (objective memo to supervising attorney)
I thought the facts of this PT were not too difficult to digest when reading, which was much appreciated. As I was writing I ran into some amount of confusion as to how to fit the facts into the cases and organization, but I think I did an ok job in the end (for sure not a 50 score that I got on PTA in July). Mentioned in the conclusion the punishment handed out in one of the as a good guideline for suggested punishment in this case.
Score Prediction: 60
I did ok on the July MBE (scaled 1429 which i think is somewhere around 130/190 raw). After the July MBE i remember feeling that it was difficult, but I also remember that I recognized a fair amount of questions and thought I did ok on them. After this February MBE I felt good about it. There are some questions that I know I got wrong that annoy me such as the 1st amendment funeral sign one, but for the most part, looking at the consensus of the questions discussed on the original board before being taken down, I got most of the tough ones correct. I believe that the MBE was easier and I believe I had to have performed better on it than July.
Score Prediction: Hoping for 135+ raw
Essay 4: (Contracts/Remedies)
Did this essay last, had about 45 mins to do it. As I read it, like many others, I was just trying to figure out what it was about. When I got to the end, i saw rescission and reformation and knew that it was a remedies question. I had good rule statements and discussed the proper defenses, but I believe my analysis was lacking due to running out of time. I made sure to put in a preliminary issue section in which I discussed what law governed (common law) and the rule for valid contract and just said that there was a valid contract.
What I missed:
I do not believe I missed any issues and I thought my rule statements were immaculate, but time started to run out, and it started to show on some of my analysis, which started to get brief although still competent. I think I incorrectly concluded on the laches defense because I failed to remember until it was too late that it had been a few months since the plaintiff brought the action (6 months if I remember correctly).
Score Prediction: 55-65 depending on how much a grader reads into it. At first glance It would be a 65, but if the grader reads the analysis towards the end, it could drop. (hoping they play the stoplight game trying to grade and assign a score before the light turns green).
Essay 5: (CA Evidence)
Did this essay second, put in about an hour and 5 minutes, then went back and revised a bit in the middle of writing the remedies essay (remembered some points I should have included). I pretty much just talked about hearsay and exceptions. I thought the email would constitute double hearsay, but then realized that the email should come in since it was proving that a defamatory statement had been made rather than proving the truth, etc. Talked about authorization, spontaneous statements, contemporaneous statements (in regards to the statement of the affair that was overheard), etc. This essay had become a bit hazy in my memory.
What I missed:
One big issue I neglected to mention was Statement Against Interest and I didn't realize it until it was too late. However, i mentioned contemporaneous statement and vicarious admission (which are both a stretch). Also did not really mention anything coming in for non-hearsay purposes other than the email contents. Hopefully I don't get dinged too much by a grader.
Score Prediction: 60-65
Essay 6: (UCC Contracts)
I did this essay first, and dedicated about 1 hour 10 mins to it. I did not think it was too difficult other than organization and flow, which I tend to struggle with sometimes in contracts essays that are not too straightforward. I did the opening statements of UCC controlling then formation (really brief on consideration since it was clear). I mentioned the disclaimer and said it was valid in this case. Was a bit confused as to whether it was a conditional acceptance, but made sure to touch upon this. Then got into discussion on damages (and how the disclaimer on the incidental damages was valid). I also mentioned in my analysis that the facts tended to show that the two had dealt with each other in the past. Ended up concluding that the supplier did not do anything wrong and should have had the ability to cure since they had no reason to think that what they supplied was defective and they did not know that the purchaser was relying on the product to avoid closing down.
I did NOT talk about torts defects in depth as some people mentioned since that analysis is a bit too in depth and I didn't think it was necessary considering the time crunch of the question.
What I missed:
Maybe could have done better analysis of the damages portion. Time started to push me towards the next essay and made me wrap up on this essay, however, I still believe I hit most of the points that were required to have a passing answer.
Score Prediction: 65+
PT B: (Memorandum of Points and Authorities in Opposition to Motion to Modify and Motion to Exclude Testimony)
I was a bit nervous for this PT going into it, knowing that a mess up on this could very well determine pass or fail. I was hoping it was not an In Re Sia or equivalent kind of PT (which I tried during preparation only to find myself stopping and yelling profanities at). I was pleased to see that I was able to understand was was going on during the reading. I started with the pleading heading and conclusion, making it look pretty. I believe that I put together a competent analysis, underlining all the parts I wanted the grader to see were included. Although I think I nailed this PT, there were some points of confusion during writing. For example, as I was reading the initial motion to modify by the petitioner, I was unsure as to whether they wanted us to follow the headings within that motion and argue against them or not. I ended up following the headings that I thought respondent had a good argument against. There ended up being one heading that did not follow, which I think was something like "Any mistake that took place was not mutual, but unilateral because..." I also ended up running a bit low on time during the analysis of the last point, but I was able to put something decent together. The statement of facts was mostly derived from the interview, with some mention of the assets and motion. The interview had most of the important facts relating to the arguments that were to be made IMO.
Score Prediction: 65+
All in all, i really hope that I did enough to pass. I do not find myself telling others that I think I passed like I did the first go around. In July I truly believed I had passed after assessing my performance, but when results came in, the section that ended up killing me was the PT. Had I just done below average on the PT (getting a 60 rather than a 50), I would have passed (according to the bar exam calculator). It was a tough pill to swallow, and I took time to be depressed over the weekend, but then came up with a new study plan and actually did several PT's to ensure that it would not cause me to fail again. Another thing that helped me on the PT was experience from actually drafting pleadings at work, etc. This time around I believe I performed better on the essays, better on the MBE, and FAR better on the PT's. Therefore, I am cautiously hopeful and optimistic that I passed.