Taking the Bar Exam (Updated)
[Guest post by DRJ]
Most aspiring lawyers take the bar exam the summer after they graduate from law school. It’s stressful to wait and wonder if all the years of work you’ve put into college, law school and the bar exam process will pay off with a license to practice law. In addition, many are working in law firms or other employment so failing the bar would not only be embarrassing but might cost their jobs.
I’m reasonably certain there was no procedure to appeal a failing grade when I took the Texas bar exam almost 30 years ago. The test results were reported as “pass/fail” with no number grade and copies of the questions and answers were not available. Aspiring lawyers who took the bar exam back then had to accept whatever the exam results showed.
It seems things have changed since then:
“South Carolina’s top court changed the grades for 20 people — including the children of a prominent state lawmaker and a longtime circuit judge — who initially flunked the test required to practice law in South Carolina. The S.C. Supreme Court in last week’s order said the wills, trusts and estates section of the July exam would “not be considered” in determining a test-taker’s overall score, though the justices gave no reason for their decision.
Affected students included the daughters of state Rep. Jim Harrison, R-Richland, chairman of the powerful House Judiciary Committee; and Circuit Judge Paul Burch of Pageland. Both Burch and Harrison acknowledge contacting officials about the test results, but say they did not lobby for their children and did nothing improper.
The court said on its Web site Friday that it decided to throw out the results of the wills, trusts and estates section after it learned of a “scoring error.” The nature of the error remained unclear, as did the identity of the person who brought the matter to the court’s attention.”
The rules of the SC Board of Law Examiners prohibit contacts regarding an applicant or his/her scores:
“In both cases, Harrison said, he asked if the wills, trusts and estates section of the exam had an unusually high failure rate. An unusually high failure rate may be a sign of a faulty question, or faulty grading, he said.
He said that because he was not lobbying for a grade change for an individual, but only bringing a questionable situation that involved a group of students to the attention of authorities, he did nothing that violated the Supreme Court rule that prohibits contact.
The rule says that an applicant “shall not, either directly or through an agent, contact any member or associate member of the Board of Law Examiners or any member of the Supreme Court regarding the questions on any section of the bar examination, grading procedures or an applicant’s answers.”
Apparently several people who failed the test used Facebook to compare notes about the exam sections. One student left a comment when their efforts to have the tests re-graded were successful:
“Harrison said comments his daughter posted on the Internet social-networking site Facebook regarding the “hard work” she and her friends had done to get their grades changed had been misinterpreted.
“We worked really hard last week to make this happen and I’m just relieved that it’s all over and I can move on,” Catherine Harrison had posted recently.
Harrison said his daughter was referring not to any improper lobbying efforts, but to vigorous telephone and e-mail efforts to contact other students to discover if an unusual number of students had failed the section.”
Mistakes happen and I’m glad this one was corrected. However, I’m sure this has happened in the past and/or in other places and it wasn’t fixed. If this were my child, I would have told him to do a better job on the test next time so he wasn’t so close to a failing score.
Update 11/18/2007 @ 9:00 PM: Here’s a story involving the Puerto Rico Medical Examiners Board:
“In August, a federal grand jury indicted 88 men and women after an investigation into members of Puerto Rico’s Medical Examiners Board who allegedly altered failing test scores to certify unqualified doctors. Almost three months later, federal agents carried out another round of raids across the U.S. territory, arresting dozens more as part of the scandal.
Among those arrested were two ex-board presidents, one of whom allegedly changed failing grades as political favors for a friend. Authorities say more arrests could be on the horizon.”
I’m not saying there was fraud or wrongdoing in the SC bar exam case but it’s gotten so expensive to get professional degrees, I wonder if this has resulted in more pressure on the bar licensing organizations from applicants and others.
— DRJ
DRJ,
This article is related to what you are describing.
http://www.cbsnews.com/stories/2007/11/08/60minutes/main3475200.shtml
Things have changed indeed in the last thirty years – not all for the good I’m afraid.
[Interesting article, VOR. Apparently it’s a big problem at all levels. Our son’s college sent emails to the parents warning them of the damage done to students when parents are over-protective. It even has a name: helicopter parents, because we’re always hovering over them. — DRJ]
voiceofreason (102869) — 11/18/2007 @ 2:55 pmWhat a great article that is ! I teach medical students, a pretty high achieving bunch. When I took the SAT in 1956, we never learned our score. Maybe I was just naive and there were other, more savvy, kids who knew but I didn’t and we had no opportunity to inquire. I’ve wondered what my score was because I ended up a National Merit Scholar but to this day I don’t know the score. The same occurred with my MCAT test in 1961. That is the medical school SAT. Now they all know the scores and decide whether to take it again. There were no SAT prep courses when I was in high school. My youngest daughter (still in high school) took one and is going to retake her SAT unless she gets early admission to a college.
That’s reasonable. There is no reason why a kid can’t know the score they got. But this other stuff is frightening. Most of my kids were ahead of the curve on all the “no lose” philosophy. Plus the sports they compete in (running and sailing) are pretty hard to fake how well, or badly, you do. I pity the corporate managers who have to herd these clueless people around. The high achievers take care of themselves. But this isn’t Lake Woebegone. Not everybody is above average.
Mike K (86bddb) — 11/18/2007 @ 3:43 pmIt wouldn’t happen in medicine.
corwin (6a5dd5) — 11/18/2007 @ 4:58 pmAre there any prerequistes to taking a bar exam? Can anyone go and take the exam?
j curtis (8bcca6) — 11/18/2007 @ 5:03 pmJohn F. Kennedy Jr. failed his bar and retook it under unusual circumstances as I recall.
He was working for the DA’s office.
lonetown (d1b0ac) — 11/18/2007 @ 5:20 pmj curtis,
I don’t know about every state but I don’t think you can take the bar exam unless you’ve been to law school. There was a time when you could take the bar exam if you had apprenticed with a licensed lawyer. I know an attorney who went to 1 year of law school, apprenticed for 2 years with a lawyer, and then took the bar exam. He’s in his late 70’s and still practicing, but he’s the only one I know that did it that way.
DRJ (973069) — 11/18/2007 @ 5:22 pmDRJ, if you have a minute could you please clarify:
I’m not following the thought that this was a mistake. When Harrison said, “An unusually high failure rate may be a sign of a faulty question, or faulty grading” these were possibilities, not fact, right? If so, hasn’t the court, by making the adjustments and passing the 20, put themselves in a compromising position – even moreso as there is no disclosure?
And, from the article the pass rate was initially 78% – is this considered low?
Why wouldn’t these students be treated like anyone else who doesn’t pass the bar and have the option to take it again?
“Of the 552 students who took the test, 428, or 78 percent, initially passed, according to results posted Oct. 26 on the Supreme Court’s Web site. The 20 people affected by the Nov. 2 order represent 16 percent of the 124 applicants who flunked.”
Dana (f0e0e7) — 11/18/2007 @ 5:36 pmJfk’Jr.failed his exam more than once.One of my two attorney brothers told me NY has a tough exam.Mrs Clinton failed her DC exam when she first took it.It wasn’t something she publicized.I don’t know whether any states let someone take the bar without graguating law school;Delaware used to do that.(I read of that in an autobiography of Bill Veeck-s in wreck)
corwin (6a5dd5) — 11/18/2007 @ 5:37 pmMnemonically -and other ways -gifted Corwin
Dana,
I’ll have to guess based on my experience with the Texas bar exam because that’s what I’m familiar with, but I suspect it works about the same in other states.
Bar exam questions and answers are prepared by different attorneys for different sections because not everyone is an expert in every area. Thus, one or more people prepare the criminal law section, others prepare the wills/trusts section, and so forth. The bar exam committee reviews the entire test but I doubt they question the substance of most questions and answers unless something looks really off. Instead, they trust the experts they’ve delegated the job of writing each section.
As a result, some sections may be harder than others. If a particular section shows irregularities during grading, the bar examiners may make grading adjustments. My impression was they do this for the next exam but not for the existing exam unless something is clearly incorrect or there was a severe irregularity.
Here’s an example: If most of the test-takers get 80% of the questions correct on every section but one and in that section they get 50% of the questions correct, that suggests the problem is the section and not the test-takers. It may mean the control answers were wrong or it may mean the questions were confusing. It could also mean the test-takers were not very good at that subject but that seems unlikely given the consistent performance on other sections.
Is that what you were getting at or did I miss your point?
DRJ (973069) — 11/18/2007 @ 6:04 pmYes, this is what I was getting at, DRJ. Thanks.
Would you also address whether you believe this compromises the court by making the grade adjustment on the existing test, their lack of disclosure, and the fact that people already involved in law brought up the issue? Thank you.
Dana (f0e0e7) — 11/18/2007 @ 6:18 pmCourts are supposed to listen to people. And find solutions to the problems of individuals. Especially when the problem is of the making of the Court’s own agent.
nk (09a321) — 11/18/2007 @ 6:33 pmDana,
NK is right that the bar examiners should be responsive. That’s good, because my guess is they’ll have to be very responsive in the future. Incidents like this open the door to future complaints and objections. Of course, the bar examiners have a monopoly over the bar exam and they can deal with future complaints as they see fit.
Unfortunately, in this situation it’s hard not to wonder if the examiners were more responsive to a judge and especially to a Judiciary Committee chairman than they might be to regular citizens. Frankly, that bothers me more than whether they altered 20 grades to a passing score.
DRJ (973069) — 11/18/2007 @ 7:09 pmDRJ,
Interesting. So we don’t have to worry about any Abraham Lincoln types coming about from their own self-determination anymore?
j curtis (8bcca6) — 11/18/2007 @ 7:09 pmjc,
I imagine even Abraham Lincoln had to satisfy a court of his competence and good character to practice before it. If the ABA has obtained a near-monopoly in having only the graduates of its approved law schools eligible to be licensed, well, that’s the result of competition in a free market isn’t it?
nk (09a321) — 11/18/2007 @ 7:23 pmIt used to be in California that a law school degree was not required to take the bar. Maybe that is not still the law. There used to be a story (possibly apocryphal) about the secretary of a bar prep course professor who sat through a half dozen of his classes and then took the bar and passed it.
Mike K (86bddb) — 11/18/2007 @ 7:33 pmI know that, in my day, California did not require an ABA-approved law school for eligibility to take the bar exam. I don’t know if that’s changed.
nk (09a321) — 11/18/2007 @ 7:36 pmYou’re right that things need to change and the bar exam needs more transparency and accountability, but this isn’t necessarily a story to celebrate. The Supreme Court of S.C. has not been open about why it did what it did, and the S.C. bar has been asking very probing questions. It may be that they did this only out of favoritism, and if no prominent people’s children had failed those sections, I doubt this would have happened.
PatHMV (0e077d) — 11/18/2007 @ 7:41 pmThank you, DRJ. If they want to ease people’s minds about their decision, it would seem an explanation would of the ‘scoring error’ would provide that.
“scoring error.” The nature of the error remained unclear, as did the identity of the person who brought the matter to the court’s attention.”
Dana (f0e0e7) — 11/18/2007 @ 7:49 pmWhen I was taking BAR/BRI, we asked our instructor whether the Illinois bar exam was free of “the fix”. He said all evidence pointed that it was because otherwise powerful people who had flunked it twice (Mayor Daley for one) would not have. I think that the politically-powerful and well-connected know how to pick their battles and conserve their political capital. They would not waste it on something that could be cured with a little more studying and a re-taking of the exam and also create the danger of a scandal that would haunt their children’s careers forever.
nk (09a321) — 11/18/2007 @ 8:00 pmTexas requires a JD from an approved domestic or foreign law school or from an unapproved law school if certain practice requirements are met.
California (click on Eligibility about halfway down on the left) accepts a JD from approved ABA or non-ABA law schools, internship with a lawyer for 5 years, internship with a judge, education in an approved correspondence school, or a combination of the foregoing.
For an easier summary, here’s an ABA chart that shows what each state requires for admission to practice law. The state rules vary tremendously. For instance, only 7 states allow attorneys to take the bar exam after studying in a law office: California, Maine, New Mexico, Vermont, Virginia, Washington, and Wyoming.
DRJ (973069) — 11/18/2007 @ 8:03 pmFWIW, I so enjoyed my experience taking the California bar exam that I just had to do it a second time. Ah, memories….
Steve Smith (56a0a8) — 11/18/2007 @ 10:20 pmHow is this rule consistent with the right to petition the government for redress of grievances?
I hope you’re being sarcastic here and I just missed it. A government-enforced monooply is the very opposite of a free market.
Milhouse (f10fb3) — 11/19/2007 @ 4:10 amI think the rule is intended to prohibit improper communications and attempts to influence individual bar examiners and judges. It does not prohibit a formal petition addressed to the Court with notice to other interested parties. It could have been drafted better, but as long as it can reasonably be construed the way I’m construing it and applied accordingly it passes constitutional muster.
I don’t know that I am being sarcastic. Isn’t a monopoly the incontrovertible definition of success in a free market? I don’t see it as a government imposed monopoly by virtue of the fact that it’s customers are governmental entities or that those governmental entities are monopsonies. I am free to try to persuade the various supreme courts to accept my evaluations of law schools, or to allow other manners of licensing or no license requirement at all for that matter.
nk (09a321) — 11/19/2007 @ 5:31 amYou can’t get away from the fact that practising law without a license is a crime; if you do so you won’t be driven out of business by the market, you’ll be dragged off by force. And that’s the exact opposite of a free market. A free market monopoly has no laws to enforce it – and therefore never lasts very long. Governments are not the customers here – clients are, and it’s the government that prevents people from serving those customers without the ABA’s say-so.
Milhouse (f10fb3) — 11/19/2007 @ 7:41 amWhat other interested parties? Who has an interest in whether a person passes or fails, except that person and the board? If the person has a grievance, because she failed a test that she ought to have passed, the obvious first thing to do is complain to the people who run the test, and ask them to look at the section in question and see whether there’s not something wrong with it. Which in this case appears to have happened. This seems like the perfect example of what the right to petition is all about.
Milhouse (f10fb3) — 11/19/2007 @ 7:46 amMilhouse #24,
You might as well argue that driving a car is government-enforced monopoly.
And that’s not the issue here, anyway. The ABA is a private organization which sells a product, its evaluation of law schools. Its customers are attorney licensing agencies, actually, the top courts of the several jurisdictions. They have chosen to buy the ABA’s product to the exclusion of everyone else’s. It’s a natural monopoly created by the market. I know no law that forbids Milhouse’s Bar Association.
#25,
The right to petition does not include calling a judge at his home to argue your traffic ticket. You do it in open court with the cop and the prosecutor present. And that’s all the rule quoted in the post says in my opinion.
nk (09a321) — 11/19/2007 @ 8:19 amThe Stanford Daily reported on the results of the July 2005 California bar (http://daily.stanford.edu/article/2006/1/10/sullivanFailedCalifBarExam):
“Among those who failed was Stanford Law School Professor and former dean Kathleen Sullivan. Having previously passed the bar in New York and Massachusetts, Sullivan is a noted constitutional scholar who has practiced law for 25 years, making numerous appearances before the U.S. Supreme Court. She decided to take the California bar exam after joining a legal firm as an appellate specialist, but found that she was pressed for time to study.”
Satta (db5846) — 11/19/2007 @ 9:20 am