California grads are not less qualified

The California bar exam is especially difficult. The pass rate is always one of the lowest in the nation, and in July only 62 percent of graduates of ABA-accredited schools taking it for the first time succeeded. In addition, the test is three grueling days (though this will go down to two next July) and the results do not arrive until nearly Thanksgiving, leaving many recent California law graduates in extended employment limbo as they wait for results.

These low pass rates are not because California law graduates are less qualified than their peers in other states. In fact, on the multi-state portion of the exam, California test takers - even including the roughly 7 percent of exam-takers from non-ABA accredited schools - had a mean score several points above the national average. We also know from data provided by the California Bar that there is a quite substantial correlation between performance on the multi-state portion and performance on the other parts of the exam. So there is zero evidence to suggest that California's bar exam takers - especially those from ABA-approved schools - are weaker in aggregate than the pool elsewhere.

This means the California bar exam is extra tough by design. Basically, to pass the bar in California, students are being required to do the equivalent of running a seven-minute mile instead of the eight- or nine-minute mile required elsewhere.

Quite a few graduates who failed the California bar would, therefore, have passed had they taken the exam in another state. With the same degree of preparation and the same caliber performance, some fraction of California test-takers would have succeeded in Massachusetts (with a first-time pass rate of nearly 80 percent) or New York (82 percent). In the last two years, for example, the pass rate for UCLA Law graduates taking the New York bar has been 100 percent and 93 percent, respectively.

This state of affairs invites an important question: Would those students who failed in California but would have passed elsewhere actually make worse lawyers than their fellow test-takers who fell just on the other side of California's curve?

Count me dubious.

The reality is that the bar exam tests for only a subset of what it takes to be a good lawyer. Analytic prowess, attention to detail, clear writing and concrete legal knowledge certainly matter and I grant that the bar exam provides some measure of these skills. But resilience, listening skills, creativity, good judgment and emotional intelligence matter too. So do abilities in oral advocacy, counseling clients, negotiation, business judgment, and leadership, yet the bar exam tests none of these. No doubt some of those who ran the bar exam race fast enough to have passed in New York, but not quite in California, could in fact have become extraordinary lawyers.

To be sure, many of these "near miss" California graduates can likely improve their test performance enough to pass next time around. But they will have lost months of their lives and spent thousands of extra dollars in the process, and in many cases, their employment prospects may also have dimmed. This would perhaps be justifiable if we truly believed that this higher score threshold produced more effective lawyers. But I fear that the difference between the New York threshold and the California one may have as much to do with effective lawyering as shaving 30 seconds off one's time running a mile.

Moreover, an atypically high passing threshold creates unfortunate incentives for California law schools. Law schools can, should and do go beyond traditional doctrinal training to provide soon-to-be lawyers with a significantly broader toolbox, including increased hands-on experiential training and problem-solving experience. At UCLA, I suppose we could design our program to increase at the margins our students' (generally strong) pass rate. But we would be doing that to the detriment of their legal education, and by reducing forms of learning that will help them achieve excellence in the profession over the longer haul.

So we have a responsibility to ask hard question about precisely what evidence supports the claim that forcing California lawyers to run extra fast in order to pass the bar actually improves the quality of lawyers. How valid is a correlation between our current "pass" threshold and minimum lawyering competence? What legitimate justifications warrant making our state's test extra hard?

This higher standard comes at substantial and obvious costs, not least to those students who invested three years of their lives and substantial expense in their legal education, and would in fact have passed the bar virtually anywhere but California. The onus therefore ought to be squarely on the State Bar's Committee of Bar Examiners to justify the benefit of this higher standard.

California's plans to reduce its bar exam from three days to two offers all who are concerned about legal training in California the perfect opportunity to ask these questions in a candid way - and to consider creating a minimum bar pass standard more closely aligned to other states.