May 31, 2017 | By Kylie Larkin — The recent article by Professors Robert Anderson IV and Derek T. Muller, “The High Cost of Lowering the Bar,” (SSRN) is featured in today’s Wall Street Journal article, “California’s Tough Bar Exam, Long a Point of Pride, Faces Pushback,” and the TaxProf Blog. The article considers the reevaluation of the bar exam by the State Bar of California.
Via the Wall Street Journal:
A study released this week by two Pepperdine University School of Law professors, Robert Anderson IV and Derek Muller, concluded that California lawyers with lower bar exam scores were more likely to be disciplined or disbarred during their careers, based on limited publicly available data.
The complete WSJ article may be found at www.wsj.com (subscription required)
The TaxProfBlog feature may be found at taxprof.typepad.com
Abstract of “The High Cost of Lowing the Bar”:
The pass rate on the July 2016 California bar exam was the lowest since 1984. The resulting outcry from California law school deans has prompted the State Bar of California to reexamine the bar exam. The deans at schools accredited by the American Bar Association complain that the California bar exam’s passing score is too high and fails too many prospective attorneys.
But lowering the score may have significant costs. The bar exam is designed to be a test of minimum competence. Lowering the cut score means students who performed worse on the bar exam practice law. That may result in lower quality attorneys practicing in California. The California deans are skeptical that the higher cut score has a meaningful consumer protection role. The deans argue that the bar exam does not adequately measure professional competence and that the high California passing score is not necessary to ensure adequate professional responsibility and minimum competence in the practice of law.
In this Essay, we present data suggesting that lowering the bar examination passing score will likely increase the amount of malpractice, misconduct, and discipline among California lawyers. Our analysis shows that bar exam score is significantly related to likelihood of State Bar discipline throughout a lawyer’s career. We investigate these claims by collecting data on disciplinary actions and disbarments among California-licensed attorneys. We find support for the assertion that attorneys with lower bar examination performance are more likely to be disciplined and disbarred than those with higher performance.
Although our measures of bar performance only have modest predictive power of subsequent discipline, we project that lowering the cut score would result in the admission of attorneys with a substantially higher probability of State Bar discipline over the course of their careers. But we admit that our analysis is limited due to the imperfect data available to the public. For a precise calculation, we call on the California State Bar to use its internal records on bar scores and discipline outcomes to determine the likely impact of changes to the passing score.