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The High Cost of Lowering the Bar

16 Pages Posted: 1 Jun 2017 Last revised: 13 Oct 2017

Robert Anderson IV

Pepperdine University School of Law

Derek T. Muller

Pepperdine University - School of Law; University of Iowa - College of Law

Date Written: May 30, 2017

Abstract

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.

Keywords: Bar Exam, California, State Bar, Occupational Licensing, Attorney Discipline, Legal Education, Data

JEL Classification: J44, K00, K1, K10, K2, K23, K4, K49, Y1, Y10

Suggested Citation

Anderson, Robert and Muller, Derek T., The High Cost of Lowering the Bar (May 30, 2017). Available at SSRN: https://ssrn.com/abstract=2977359

Robert Anderson IV

Pepperdine University School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

Derek T. Muller (Contact Author)

Pepperdine University - School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States
310-506-7058 (Phone)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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