The falling bar passage rates in California have prompted many law school deans to look for possible causes of the decline other than the drop in incoming predictors of law students. One argument I hear often is that the primary problem isn't admitting weaker students, it's that the bar exam has somehow become more difficult. Often, these arguments are based on misunderstanding of how the test is scored (such as the false notion that the exam is graded on a "curve" etc.)
In reality, the essay portions of the bar exam are scaled to the MBE, and the MBE is "equated" to ensure that scores are comparable from year to year as explained on the California Bar website here. As a result, the exam does not become more or less difficult depending on the mix of takers in a particular administration. The combination of scaling and equating means that unless the passing score is changed, the difficulty does not change (the LSAT does the same thing). The process is designed to ensure comparability from year to year. In theory, a passing grade thirty years ago is the same as a passing grade today. I say "in theory" because, of course, it's possible for the equating process to go awry.
One way to test whether the fall in passing rates is attributable to decreased admission standards or an exam "gone awry" is to compare the performance of recent law graduates to those who graduated earlier. Although this comparison is difficult to conduct directly, there is an important piece of information bearing on this question that hasn't been discussed in the existing commentary. Recent law school graduates are not the only ones who take the California bar. Lawyers seeking admission in California from other states take it as well. There are two versions of the exam for lawyers: the General Bar Exam, which is the same full bar exam taken by recent graduates, and the "Attorney's Exam" which omits the MBE portion, as explained here. As a result, hundreds of attorneys take both versions of the exam every year, providing a comparison group to the recent law school graduates.
The chart below compares the pass rate over time of the three groups (recent graduates of ABA schools, Attorney's Exam takers, and attorneys taking the General Bar Exam).
The plot shows that the attorney examinees have passed at pretty much the same passing rates every year from 2007 to 2018. Although there are a few bumps up and down, the rates do not move in tandem with those of recent graduates. In contrast, the passing rate for graduates of ABA law schools has declined significantly since 2008. Indeed, recent graduates historically have outperformed attorneys taking the General Bar Exam, but in recent years the two lines have converged.
If the decline in passing rates were the result of changes to the difficulty of the bar exam, we should see the passing rates for attorney applicants declining in tandem with those for new law graduates. Indeed, if the MBE were specifically responsible, we should see that pattern for the recent graduates and the attorney General Bar Exam takers, with no decline for the Attorney Exam takers (as the Attorney Exam doesn't include the MBE). Instead, the data shows no changes for either category of attorney takers but a substantial reduction in the passing rate for recent graduates.
This is one more piece of evidence that the bar passage crisis is the result of admission decisions made by California law schools, rather than any changes to the bar exam itself.
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