Category Archives: Law School

The Florida Bar has released the bar pass rate scores for first-time test takers in the July 2006 bar exam. As you can see from the table below UM did “well” compared to other law schools in the state:

FSU, 88.1
University of Miami, 85.7
University of Florida, 81.2
Stetson, 81
Florida International, 79
Florida Coastal, 75.4
Nova Southeastern, 74.9
Barry, 72
St. Thomas, 63.1
Florida A&M, 56.3

Non-Florida law school graduates, 71.6

Our “good” score this year means that this is an appropriate time to post on why bar pass scores are much less meaningful as indicators of law school quality than they may seem — there’s less chance it will seem like sour grapes.

Let me start by saying that there certainly comes a point where a substantially lower bar pass rate than other schools in the state is a sign of a problem that a law school should work to fix. Most people come to law school in order to become lawyers. If they can’t pass the bar, at least on second try, in most cases they have wasted large amounts of time and money. If this is happening to a substantial fraction of the class, and it isn’t happening nearly as much in other law schools in the same state, then something is wrong either with the teaching, the work ethic, or with the admission policy. Note that the latter may not be the school’s direct fault: as there are more and more law schools it becomes increasingly likely that some schools simply are unable to attract enough students with enough discipline or talent, which puts pressure on the school to either teach to the bar, or to flunk a greater fraction of the entering students.

We’d love everyone to pass; realistically, not everyone studies hard enough for an exam that is three parts memorization, two parts issue spotting, and one part legal reasoning. How low is too low a bar pass rate? Reasonable people could disagree as to exactly where that line is. In part, the answer varies by state, since different bar examiners score in different ways. It’s also important to note that in recent years many states (including Florida) have substantially raised the minimum score needed to pass the bar. Thus today’s scores in Florida are not comparable to scores a decade ago, as people are failing now who would have passed then.

That said, there are two sets of reasons why bar pass scores don’t tell you as much as you might think they do.

First, the scores quoted above — the only ones readily available to us or anyone — reflect only in-state takers. The more you run a national program, the more your students take bar exams in the other 49 states (and the District of Columbia) where they hope to practice. Quite commonly, these out-of-state test takers include many of the best and most motivated students — it takes more work and often better grades to get a job far from where you studied. So, for the better law schools there is an element of selection bias in the in-state data that is relatively absent for the schools whose students have less chance of out-of-state work.

Second, law schools differ enormously in the extent to which they teach to the bar exam. Any law school with even minimal pretensions to grandeur is going to concentrate on teaching legal reasoning, legal theory, legal history, and just about anything other than the rote learning that occupies the bulk of the bar exam. And, the more you run a national program drawing students from all over, the less you want to teach them even predominantly the law of one state where so many of them will not be practicing. (Indeed, I’d argue that even if you knew that all your grads would practice in one state you would still need to teach national principles since most practices will involve issues that cross state boundaries.) A three year bar review course may raise your pass rate, but it will not train nearly as good or as flexible lawyers as a program that stresses critical thinking and analysis.

The downside of a quality program is that it fails in substantial part to teach to the bar — an exam which at best tests a small fraction of the things that it takes to be a good lawyer, and which many would say doesn’t even do that. And that means the students will have to take a cram course after they graduate to memorize all the rote rules they didn’t learn in law school. Better a six-week cram course than a three-year one, I’d say. (Indeed, my law school, Yale, was notorious for teaching nothing relevant to the bar at all, a reputation that only somewhat exaggerated the reality. A consequence was that I actually enjoyed a lot of the bar review course as it contained concepts and material wholly new to me — spendthrift trusts! what a concept! But I digress.)

In summary, and strange as it may seem, a very high bar pass rate is not necessarily the sign of a great law school; it may even be the sign of too much emphasis on cramming, and not enough on learning to think like a lawyer. Conversely, there comes a point where the bar pass rate is so low that it is a sign that the law school is doing something wrong — admitting the wrong people, failing to create the right work ethic, not teaching some fundamental principles of law, or something — but unless one is flirting with that uncertain point, one really shouldn’t make too much of relatively small annual fluctuations in a school’s bar pass rate or of relatively small differences between schools.

This week, it seems like every law blogger is offering his or her own (although actually, it’s usually “his”, hmm) list of the ‘hierarchy of legal scholarship’ [1], [2], [3]. I think there’s quite a lot to be said for Eric Muller’s Hierarchy of Legal Scholarship, but it’s just too darn complicated.

So here’s mine:

0 – Lousy articles which get the facts wrong

1 – Lousy articles

2- Good articles

3 – Articles which would have been really good except they go on too long

4- Really good articles (bonus for a snappy title)

5 – Supremely good articles (very rare)

Not only is this much simpler, but I expect it will command wide agreement.

Yesterday’s post on class cancellation got interesting responses here and elsewhere; like Dr. Steven Taylor, I think the best was by former guest blogger Jon Weinberg, who wrote

I don’t think that the conflict is between teaching classes (doing my job) and attending conferences (self-centeredly blowing off my job). Attending conferences (either to present papers, or just to learn stuff that feeds into my teaching or writing) is my job, just as teaching is. Being a member of a scholarly community — including the part of that community that isn’t in Detroit — is a big part of what the university pays me to do.

I do think I need to add one clarification to what I wrote: when I ‘cancel’ a class, whether for Yom Kippur or a conference, I almost always reschedule it (one rare exception was last year, when we lost so much time due to having two hurricanes — but even there we clawed back to within 30 minutes or so), so we’re really talking about rescheduling rather than canceling classes.

I didn’t make this clear because it never occurred to me that there was another serious option. From some of the discussion that I’ve seen elsewhere, however, I gather that in some places ‘canceled’ means ‘canceled for good’. I think that’s much more problematic. And at some point, very quickly, you might even fall below the number of class hours required by the ABA.

Prof. Bobby Chesney asks if it’s ok to cancel a class for a conference. Will Baude, Yale Law student, channels Felix Frankfurter and says that it would be something akin to a violation of a ‘sacred trust’:

So I think a very strong presumption against sacrificing class even further to one’s other professional ambitions is at the very least an ideal. I would like to hope that is not too much to ask for.

It’s probably close to what I would have said when I was a student there.

Where you stand depends on where you sit. It’s easy to say that stuff when you are at a school which is on the East Coast corridor, and where most people will come to you, and where the school’s name will get faculty invited to things, published, and noticed even they don’t show up. Out here in the provinces, if we want to attract top faculty and have them participate actively at a national and international level, we have to assure them they will not become unpersons for eight months of the year.

We think, perhaps self-servingly, that it’s in the students’ interest to be taught and supervised by people who are involved in new and important things things in an active way. But when it’s a long way to that meeting, it’s not a day trip (and ever more so in these days of uncertain and encumbered air travel). So we have to compromise the ideal or pay an unacceptable price. Note also that most of us teach more hours per year than they do at Yale, so we have fewer days of the week free. Plus if you are lucky enough to be in demand, conferences sometimes book you a year in advance — well before you know your teaching schedule…

I do everything I can to avoid canceling classes, but I would guess I average about one to two days canceled a semester to give a paper at a conference or to participate in state, national, or international law reform activities. Should I have said no to the Chief Justice of the Florida Supreme Court when he asked me to serve on a committee on privacy and court records? Even though, modesty aside, I was probably the legal academic in the state who knew the most about the computer and privacy issues? I’d have loved to avoid that chore, but it seemed like something I ought to do. Even if it meant rescheduling a class or two. Was it just “professional ambition” to accept invitations to give papers at big conferences in my field at Yale or Harvard or Stanford? No doubt in part; but I also learned a lot by going and met some great people, some of whom are still my teachers. Part of that, I hope, filters into the classroom.

I agree that too much of a good thing would be bad; and I think the event has to be pretty important before I’d cancel a class. But if Miami didn’t have a policy that gave me some flexibility, my work would be a lot poorer for it, and so too would some of my teaching.

Makeups are unpopular with students, and rightly so; and what’s acceptable could easily grow into what’s oppressive or unfair. We do have a makeup time in our schedule when no one has classes, which should make it theoretically easier. In practice there’s always someone with an internship or something, so it’s never perfect. But I think the tradeoff is far more complex than Mr. Baude suggests — especially outside New Haven, Cambridge, and at most a handful of other schools. On balance, I think I and my students benefit from the number of things that my colleagues and I do — much of which, given our geography, would not be possible if we had a more rigid rule on rescheduling classes.

I have to add that almost invariably our students are unbelievably gracious about it (at least to my face) when I explain to them what is going on and why I’m rescheduling a class. And I appreciate it.

Our neighbor, the St. Thomas University School of Law, has been sued over expelling students. It seems to be a fraud claim: that the school admitted students it knew wouldn’t pass and/or that it had a plan to flunk a greater percentage of the class than advertised in order to raise its bar pass rate:

A former law student has filed a federal class action against St. Thomas University School of Law of Miami, claiming that it is illegally accepting and then expelling more than 25% of its first-year class to boost its flagging bar pass rates.

Filed in U.S. District Court for the District of New Jersey, the complaint alleges that the private law school unlawfully dismissed Thomas Joseph Bentey and as many as 80 students from the incoming class of 2005 because they failed to maintain a 2.5 grade point average.

The action further alleges that in 2003 the school began a scheme to accept large numbers of students-and their tuition dollars-only later to dismiss or pressure the withdrawal of almost 30% of its first- and second-year students. The case could include hundreds of former students as plaintiffs if the court grants class action status.

The associate dean for student and alumni services at St. Thomas law school called the lawsuit “illogical.”

“Why would you admit people and dismiss them early if you’re trying to get their resources?” said George Sheldon.

I have to say that this is the first case of its kind I’ve heard of. Usually law schools get sued for not admitting people. Or students say they want to sue when they fail the bar, or learn that the school doesn’t even try to teach them the dull parts of the bar exam but wants them to take an expensive cram course after graduation.

I would have thought judges would tend not to be sympathetic to this sort of claim, especially the class action part (as to be a class action you need to show that the facts are the same for each member of the class — but each exam is different) — but I am not ready to predict that it won’t get to discovery, especially as an individual claim for the named plaintiff alone.

I can confidently predict, however, that it’s not going to affect my grading.