I find students from the lower tiered and unaccredited schools less developed writing skills, analytical skills, and their ability to really get a sense of what’s happening in a bar exam fact pattern may not be as well developed as someone who attended a better law school. They just simply haven’t had the exposure that a student in a higher ranked, more traditional law school might have had. Still, this is not wildly different than what we’ve seen, for example, in Georgia over the years, with the state-accredited schools like John Marshall and Atlanta Law a few years ago before they were fully ABA-accredited schools, or in California where we’ve got the state accredited and the correspondence law schools. We see students out of all of those schools who pass all the time. So I’m not entirely convinced that the problem really
is that we’ve got a lower performing group of bar takers. Does it have some impact? Well, undoubtedly. But not enough to show these overall big drops in scores.
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A Harder Test?
The second possibility is that the test itself got harder. Now, that feels intuitively like it should be right but I don’t think it is. When we look across the board (and we teach Florida, Georgia, California, Texas, New York, New Jersey and the UBE so our sample size is pretty large), when we see all of those scores, we’re not seeing big drop off at all in our student scores. In other words, we are not really dealing with a whole of folks about whom I would say, “That exam is just too difficult and they can’t do it.” Specifically, the addition in 2015 of civil procedure on the multistate I think was actually in that positive and statistically it turned out that way for our students, at least in the jurisdictions that we are currently getting reports on. The reason for that result, in my view, is that federal civil procedure and federal jurisdiction are rule based. Because they’re rule based, I think, if I had my choice, I would rather have seven questions in civil procedure than seven questions in the property or Constitutional law. Anyway, as we look at what’s going on in the world of exam itself, is the exam tougher? Well, I don’t think it’s necessarily tougher and the feedback from my New York students after the July exam was not that the exam was tougher. Certainly, there were a few subjects that were a little more challenging and not as expected as usual, the big five or six essay topics didn’t all show up on the test so I think that in reality, the test was slightly harder. But again, it was not substantially harder.
Are the Graders Worse?
If it’s not the bar takers, if they’re not stupid or the test is not harder, what else could be happening? I think the third option is that the grading of the exam is becoming more difficult. Look, here’s the real problem with how the bar exam is graded. Essays are graded, for the most part not by bar examiners but by hired individuals who come in to read a certain number of essays on a particular question. They’re trained and they’re taught how to work through those essays and how to give them calibrated scores but the reality is that the people that are doing this work are across the country, not particularly well qualified or well paid. In fact, the average pay to be a bar exam grader, brace yourself, is $3.10 an essay. I got more attention for my cup of coffee this morning than you got on your bar exam when it was being graded in most states.