Time to rethink the California bar exam, San Diego Dean Stephen Ferruolo testifies

The downturn in bar exam passage rates in California has triggered an important debate about the future of legal education. The bar passage rate in July 2016 hit a 32 year low of 43%. One ABA accredited law school, Whittier, had a pass rate of only 22% which, in part, may have triggered the recent decision of Whittier trustees to close the school. I discussed that event in a Guest Column for the Daily Journal recently.

Earlier this year, the Standing Committee on the Judiciary of the California State Assembly held a hearing on the bar passage issue. The video is archived here. Anyone interested in getting a good overview of the issues can benefit from listening to the discussion.

But it was the testimony of Stephen Ferruolo, the dean of the University of San Diego’s Law School, that really caught my attention. Dean Ferruolo shared his full statement to the committee with me and you can read it here. (The dean’s testimony begins at 57:54 on the video archive.)

The conclusion I drew from his testimony and the discussion that ensued with the legislators is that the current form of the California bar (including the new 2 day version that starts this summer) is, in essence, an outdated regulatory barrier to needed innovation in legal education. Because of the exceptionally large number of subjects tested as well as because of the bias towards multiple choice questions (now heightened with the 2 day bar) law school curriculum is being distorted in a way that creates a disconnect between what is taught in law schools and what it is new lawyers need to know to be successful.

The bar exam should reflect whether or not students have absorbed the critical knowledge and methodologies needed to be a successful lawyer. Instead, it tests methods and information that are likely irrelevant to most practicing lawyers. If the exam were reformed along the lines suggested by Dean Ferruolo, it would allow for a more flexible curriculum that is reflective of the ever changing needs of the legal profession. A reduced number of tested subjects that emphasized the methodologies lawyers need to learn and evolve over a career, instead of rote memorization, would enable law schools to offer the wider array of specialized and experiential courses that are seen as relevant by legal employers. This more focused exam might also help law faculty in their essential role as legal academics: to generate and distribute new (and relevant) knowledge about the law.

Here is the essential paragraph from Dean Ferruolo’s remarks that summarizes his view:

“At a time when legal practice is becoming more specialized and employers (both in the private and public sectors) seek law school graduates with specialized training, experience and practical skills, there is an increasing disconnect between what is needed to pass the bar exam and what is needed to get a job and practice successfully. Depending on how you count, the essay part of the California Bar exam currently tests students on 13 or 14 subjects (in contrast to the seven subjects taught on the MBE). That means prospective lawyers are being tested on too many subjects, including subjects that are arguably irrelevant and unnecessary to the areas that they are ever going to practice. Further, as a result of the declining bar passage rates, students, out of rational fear, are being motivated to take classes on subjects tested on the bar exam, rather than those courses that will be useful for them in their professional careers. And law faculties, like my own, similarly out of fear, are increasingly encouraging (or requiring) students to take those and other bar exam skills courses, knowing that these will do little to train students for the actual practice of law. This intense preoccupation on passing the bar is reducing the quality, the relevance and the value of legal education. As one dean has written, ‘It puts pressure on schools to spend more time on [teaching] rote memorization and to teach to the exam, instead of focusing on critical analytical and other lawyering skills.’ We and our students have become slaves to a testing regime that is not protecting the legal profession but damaging it.”

As an example, Dean Ferruolo provided one striking anecdote in his presentation. His law school now requires that its students complete a 4 credit course to prepare for the MBE in their third year if they fall below a certain GPA level. A substantial number of students (up to 90% of USD students, according to Dean Ferruolo, will end up taking the class), therefore, have to give up the opportunity to take specialized courses that will be directly relevant to their practice area once they get over the Bar barrier. The review course is “completely useless,” he said, for any other purpose than passing the exam. Students should be using that time to prepare for their careers, not preparing for the test, he testified. He suggests that adoption of the Uniform Bar Exam would be a useful first step since it reduces the number of tested subjects in half.

The problem with the bar exam is exacerbated in California by the very high “cut score” that appears to have been arbitrarily imposed by the California State Bar. Thus, to pass the California bar test takers must score 144 or higher on the Multistate Bar Exam (MBE) while in New York the cut off point is 133. California law school deans recently appealed to the California Supreme Court to lower the cut score temporarily but the Chief Justice rejected their request instead handing the issue back to the source of the problem: the State Bar. (A call to the State Bar was not returned.)

Dean Ferruolo also makes the point that the current California approach harms California law schools in particular. While some commentators, including me, have noted that with repeated opportunities to take the test passage rates in California do move up, he notes that this nonetheless leaves another problem unsolved. A key part of the ranking methodology used by US News and World Report is the employment rates 10 months after graduation.

While it is conceivable for a top student who graduates from a Berkeley or Stanford to be employed by a major law firm, fail the July Bar, and nonetheless be allowed by the firm to take the test again in February and still keep their job, that is likely the exception.

Many students, however, must wait until the July results come out to get a job and, because California’s results take until November, this means a costly delayed job hunt. Of course, if they fail the first time, they have to take the exam again in February once again delaying the job hunt.

As Dean Ferruolo writes:

“This is not good for California law schools. Because of the weight this employment number is given in law school rankings, California law schools are at a major disadvantage relative to competitor schools in other states. Moreover, this is not good for California. Lower rankings make it harder for our schools to recruit and retain the students we need to attract to California and want to be the future members of the California bar.”

Finally, of course, as the law school deans noted in their letter to the Supreme Court and as testimony from a law student representative to the Assembly dramatically expressed, repeating the exam one or more times means “many of these students lose jobs or employment opportunities and months of income. Each of these students will incur substantial costs, often including newly incurred debt, to pay for further administrations of the exam, to take additional bar preparation courses, and to pay their costs of living while focusing on test preparation.” Since there is some evidence that students from disadvatanged backgrounds, in particular, need more than one chance to pass the exam, there is a potentially discriminatory impact as well.

It is time, in other words, to rethink the California bar exam.

This is a project that should be led, not by the State Bar, but by an independent commission co-chaired by prominent, experienced and independent representatives of both the profession and the academy. (I nominate Dean Ferruolo for one of the co-chair positions.) The commission should include experienced members of the bar, including practicing lawyers and judges, as well as experienced law school faculty.

[Note to my loyal readers: this is Post #1000!]

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