Document Type

Article

Publication Date

2020

Publication Citation

70 Journal of Legal Education 126 (2020)

Abstract

In 2019, nearly 70,000 people took the bar exam. More than forty percent failed. Given the existing scores required to pass those exams (the “cut score”), nearly 30,000 test-takers otherwise qualified to practice law were lost to the profession. Had the cut score been lower, many would now be lawyers. So it goes every year, with staggering costs. Legal educators devote substantial resources to teaching tens of thousands of people legal skills that never get put to use in law practice. A national crisis in access to justice grows more entrenched. Applicants invest three years and countless thousands of dollars in legal education, then hit a roadblock on the path they had charted to upward mobility and a professional career. The exclusion disproportionately affects the members of underrepresented and disadvantaged groups who stand to benefit most from entry. Concurrently, the profession’s dire need to diversify goes unaddressed, perpetuating the lack of representation and inclusion for broad swaths of the public.

The reasons that the legal profession advances for refusing to lower bar exam cut scores do it little credit. Legal regulators typically defend cut scores as measures of minimum competence, disparate racial impacts notwithstanding. But the bar exam has never been job-validated and fails to meet the substantive antidiscrimination standards imposed on most employment tests. This anomaly leads some critics to suggest that racism and anticompetition are the true drivers of heightened cut scores. More should be expected from the profession entrusted with the rules for reducing discrimination, promoting equity, and ensuring fairness. A common defense for retaining or raising cut scores is that doing so prevents lawyer malfeasance. But the bar exam is not designed to weed out unethical people. Even if it accidentally predicted discipline, it could be inappropriate to use it for that purpose. And either way, use of the exam distracts attention from more effective, less discriminatory approaches, such as behavioral systems and regulations for practicing lawyers.

This paper enters this scholarly and regulatory conversation by testing whether lawyers’ bar exam scores predict misconduct. If they do not, this would weaken the case against lowering bar exam cut scores to promote diversity and access to the legal profession. Importantly, the paper’s aim is not to identify the best way to prevent lawyer misconduct; many better alternatives exist. It is instead a paper about bar exams, lawyer discipline, and the fundamental flaws of a particular strategy that limits diversity.

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