Just lowering ‘cut score’ ignores other factors

I agree with Howard Miller on one point: The bar exam is to test minimum competence to practice law. I disagree with everything else he says. ("Bar exam blues," Nov. 21.) Full disclosure: I was graduated from USC Law School and I passed the bar exam (a long time ago); neither my kids nor they spouses have or will go to law school.

Having a minimum standard of competence is fair. As I understand it, the "cut score" of the bar exam establishes that minimum. Setting the level is inherently somewhat arbitrary. But California has a long track record for determining minimum competence to practice law. To suggest the minimum should be reduced because there is an increase in the fail rate ignores other factors. An increase in fail rate may indicate that some law schools have lowered their admission standards -- this prompts a school-by-school pass-rate analysis. It may indicate that (regardless of a change in admission standards) more people who really don't have the requisite analytical and/or writing skills are getting into and through law school. Using the cut score of another state is arbitrary (which states should California mimic -- I'll venture to guess that the raw score number in New York and Texas suggested by Mr. Miller is lower than California); and it does not consider the comparative ease or difficulty of the questions on the test in the other state -- very difficult questions and/or more complexity in California's plethora of laws may justify a lower cut score in one state compared to easier questions in another state.

To suggest the minimum level should be reduced because it is "fair" ignores the effect on others of being "more fair" to graduates. If the standard of minimum competence is lowered it may be "fair" to the law school graduates but not fair to the law firms that hire and pay them with the reasonable expectation they can will do what was historically minimally competent work only to find out two years later the work product is not very good and their money is wasted. It is certainly (IMHO) not fair to those who pay for the legal services.

I feel bad for people who may have spent $100,000 and three years of their lives to go to law school. But to reduce the minimum level of competence for that reason is akin to allowing people to buy a license to practice law.

I recognize that aspects of what I say here can be criticized as just as "squishy" as what Mr. Miller says. But one thing not open to criticism is the old saying, "life isn't always fair."