MBE scores drop to 34-year low as bar pass rates decline again

On the heels of some good news in recent administrations of the July bar exam comes tough news from the National Conference of Bar Examiners: the Multistate Bar Exam (MBE) scores have dropped to a 34-year low, their lowest point since 1984.

For perspective, California's "cut score" is 144, Virginia 140, Texas 135, New York 133. A bar score of 139.5 is comparable to 2015 (139.9) in recent years. One would have to go back to the 80s to see comparable scores: 1982 (139.7), 1984 (139.2), & 1988 (139.8).

I’d hoped that perhaps qualifications of students have rebounded a bit as schools improved their incoming classes a few years ago; perhaps students are putting more effort into the bar than previous years; or other factors. That appears to not be the case this year.

That said, MBE scores may be slightly less predictive of what will happen with actual bar pass rates. the NCBE has pointed out that the rise of the Uniform Bar Exam has led to a number of test-takers transferring scores to new jurisdictions rather than taking a second jurisdiction’s bar—and, presumably, those who pass in one jurisdiction are much more likely to pass in another jurisdiction (accepting that cut scores can vary in some jurisdictions). The UBE points to a few thousand such transfers last year, at least some of whom may have taken the bar exam. But put against more than 40,000 MBE test-takers, the effect, while real, may be small.

Instead, we’re left to watch as results come in state by state. Tracking first-time pass rates (from jurisdictions that share them so far—ideally, ABA graduates would be a better measure, but this works reasonably well for now), declines have been pretty consistent: New Mexico (-14 points), Indiana (-3), North Carolina (+1), Oklahoma (-8), Missouri (-7), Iowa (-3), Washington (-3), and Florida (-4). But in many of these jurisdiction, pass rates were worse in, say, 2015 or 2016.

We’ll know more in the months to come, but it looks like another year of decline will cause some continued anguish in legal education. The increased quality of law school applicants this year will help the July 2021 bar exam look much better.

Note: I chose a non-zero Y-axis to show relative performance.

A few thoughts on the tempest in Randolph County, Georgia

When election officials in Randolph County, Georgia engaged in the routine practice of election administration, they probably didn’t anticipate a campaign of fearmongering littered with falsehoods to be waged against them.

Randolph County is a rural county with about 4300 registered voters spread over nine precincts. About 55% of registered voters are African-American. Most of the voters—about 60%—are concentrated in just two precincts. Those precincts are 63% African-American, and coincidentally 63% of voters in those two precincts preferred Hillary Clinton in the 2016 presidential election.

There are seven other precincts spread around the county, but they are smaller, and in some cases much smaller. One of those precincts, for instance, has just 73 registered voters.

Keeping polling places open on Election Day can be costly. Voters increasingly vote before Election Day, casting absentee ballots or participating in early voting. Many don’t vote at all. Election officials also noted that these polling places require costly upgrades to make them compliant with disability access laws. They proposed closing these seven of the least-used districts.

Before 2013, election changes like these would have needed prior approval from the Department of Justice under the Voting Rights Act. The Supreme Court in 2013 held that “things have changed” in the South, and that seeking prior approval was no longer needed. Critics of the Supreme Court’s decision have hastily pointed to this episode as demonstration that things haven’t changed and that voter suppression pervasively rears its ugly head in the South. The facts show otherwise.

The American Civil Liberties Union began a public relations campaign demonizing county officials. It led with sinister charges” “7 of 9 precincts” or “75% of polling places” would be closed. “Precincts with 40% of the county’s voters” sounds much less dire, even if that’s more truthful.

The ACLU then claimed that these were racially motivated closings, noting that the county’s population is a majority African-American. But that, too, is a misleading charge. The seven precincts that will close are mostly white and just 42% African-American. Those precincts supported Donald Trump in 2016 with 55% of the vote.

If this is a sinister plot by white officials to suppress African-American voters, it’s the most incompetent plan one could develop. The precincts that will close disproportionately affect white voters and Republicans.

Do the closures affect African-Americans? Certainly. They also affect white & Hispanic voters. But claims of "suppression" suggest that election officials targeted African-Americans, a tough claim to make given that white voters face the brunt of the closures.

Individual precinct closures may disproportionately affect African-Americans. Consider the proposed closure of one precinct with 318 registered voters there, 96% African-American. Then again, we can pick out other precincts, too. There’s one precinct that's 89% white that will close (just 73 registered voters); another that's 83% white will close (just 103 voters).

These facts didn’t stop the ACLU from cherry-picking the 318-voter precinct. They found an uncritical media eager to help spread the misinformation. The Associated Press repeated a series of allegations levied by the ACLU against Randolph County election officials, reading more like a press release than journalism.

This isn’t to say that Randolph County election officials did a very good job. They proposed shuttering these polling places weeks before a statewide general election, and these sites had been used just weeks earlier in the primary election. A longer lead time with better communication to the public might have prevented the fallout.

It might be the case that some voters do have a harder time getting to the polls, or that some voters have to switch to early voting or absentee voting. Those are difficult tradeoffs every election administrator must face, Randolph County included. One hopes they’ve thought through this process more carefully than their action plan suggests.

But administrative mistakes hardly rise to the level of voter suppression, the conscious and deliberate effort to prevent African-American voters from participating in the political process.

That said, the right result was reached--given the lack of information and late notice, it was a welcome decision when the county opted not to close polling locations this fall.

That said, it's worth emphasizing that the political process worked well--no litigation, no order from a judge. Indeed, even in the absence of Section 2 of the Voting Rights Act, a rural county's poll closures became national news. Perhaps for the incorrect hyperbolic reasons described above--but a non-judicial solution nonetheless.

In these anxious political times, fearmongering seems to be the weapon of choice among partisans. But careful attention to detail reveals that the allegations of nefarious plots in Randolph County appear to be no more than less than ideal choices by government officials acting in good faith. Let’s hope that the rhetoric cools ahead of Georgia’s 2018 election.

The demise of the stand-alone law school

Most law schools accredited by the American Bar Association are affiliated with a university. In the last quarter century, we've seen the slow demise of the stand-alone law school. Few are left.

In 1995, Michigan State acquired the Detroit College of Law.

Penn State in 1997 announced a similar plan to create a law school by acquiring the Dickinson School of Law. (Penn State would eventually have law schools at two sites, then split them into two separate law schools under the Pennsylvania State University system.)

In 2010, the Franklin Pierce Law Center affiliated with the University of New Hampshire.

Western Michigan University associated with Thomas M. Cooley Law School in 2014.

William Mitchell College of Law merged with Hamline University School of Law to become Mitchell | Hamline, formally affiliated with Hamline University in 2015.

The recent announcement that the University of Illinois at Chicago would merge with John Marshall Law School is the latest.

(I exclude for-profit schools from this analysis, which come with their own complications. But in 2012, Western State became a part of Argosy University. Savannah Law School recently announced its upcoming closure.)

I also anticipate that someone will point out omissions or errata in my assuredly-incomplete list....

At this point, then, there are only a handful of stand-alone law schools left. The recent news over tenure at Vermont Law School shows that without a university affiliation, weathering tough times can be a significant challenge for stand-alone law schools. How many might remain after the next quarter-century?

Apart from Vermont, there are California Western (in San Diego), Thomas Jefferson School of Law (in San Diego), South Texas College of Law Houston, New England Law | Boston, Brooklyn Law School, New York Law School, and Appalachian School of Law. (Again, please correct any omissions or errata!) (I originally included the University of California Hastings, but given its affiliation with the UC system, perhaps it's simply different in kind and should not be included....)

At this pace, we might expect another couple of closures or mergers in the next few years. And it's simply a demonstration that legal education is changing, and old stand-alone law schools are slowly becoming a thing of the past.

Note: this post has been updated thanks to helpful Twitter feedback and helpful comments!

Amicus Curiae Brief In Support of Neither Party in Baca v. Colorado Department of State

I'm pleased to share a brief I filed in Baca v. Colorado Department of State, a Tenth Circuit case concerning the power of state legislatures to cabin the discretion of presidential electors. You can view the brief here. It's part of a larger project on some archival research on original practices of the states concerning presidential electors--but, alas, the litigation calendar does not await the academic one!

From the Summary of Argument:

The text of the Constitution offers little about the scope of state authority to regulate presidential electors. And there is little judicial precedent about the proper scope of authority of states regulating presidential electors. See, e.g., Ray v. Blair, 343 U.S. 214 (1952). But there are extensive practices in states and in Congress—including practices at the time of the ratification of the Twelfth Amendment—that may help this Court determine the liquidated meaning of these constitutional provisions. Cf. The Federalist No. 37, at 236 (James Madison) (J.E. Cook ed., 1961).

These state and congressional practices reveal three conclusions. First, presidential electors have no right to anonymity when casting their ballots. Second, states have the power to replace presidential electors and levy fines on presidential electors, even after those electors have been selected. Third, Congress holds the power to scrutinize and even reject the electoral votes. In 2017, however, Congress counted Colorado’s electoral votes, and this Court has been asked to revisit a decision reserved to the judgment of Congress. When this Court decides this case, it should interpret the Twelfth Amendment through the practices of the states and of Congress.

"A Future Justice Kavanaugh and Executive Privilege"

Over at Law and Liberty, I have a piece on Judge Brett Kavanaugh and his views on executive privilege. It's titled A Future Justice Kavanaugh and Executive Privilege. From the opening:

If a prosecutor one day decided to indict President Donald Trump, a future Justice Brett Kavanaugh might not be the one to stop it.

Media reports, like this one over at the Washington Post, or this take over at Vox, concerning Kavanaugh’s views on executive power are too quick to assume that he would shield the executive branch during criminal investigations. His writings paint a very different portrait.

Kavanaugh, currently a judge on the District of Columbia Circuit, is a widely discussed candidate to replace Justice Anthony Kennedy on the United States Supreme Court. Kavanaugh has worked extensively in the White House for President George W. Bush. That might lead one to believe that he has a strong view of executive power. But it’s an earlier career experience that may have shaped Kavanaugh’s views, and they are not views that tend to defer to executive power.

Forthcoming article: "The Democracy Ratchet"

Over at SSRN, I've posted a draft of The Democracy Ratchet, forthcoming in the Indiana Law Journal. Comments welcome! The abstract:

Litigants seeking to lift burdens on the right to vote and judges adjudicating these claims have an unremarkable problem—what is the benchmark for measuring the nature of these burdens? Legal theories abound for claims under the constellation of rights known as the "right to vote." And when a legislature changes a voting practice or procedure, courts may have an easy benchmark—they can consider what the right to vote looked like before and after the enactment of the new law, and they can evaluate a litigant’s claim on that basis. Recently, federal courts have been relying on this benchmark for the principal causes of action litigants might raise after a new law has been enacted—a Section 2 challenge under the Voting Rights Act, a freedom of association claim subject to the Burdick balancing test, and an Equal Protection analysis derived from Bush v. Gore. And frequently, courts have found that new laws that eliminate once-available voting practices or procedures fail.

I describe this new practice as the Democracy Ratchet. But it is only recently that a convergence of factors have driven courts to (often unwittingly) adopt the Democracy Ratchet more broadly. So while a legislature can expand such opportunities, courts scrutinize cutbacks on such opportunities with deep skepticism—deeper than had no such opportunity ever existed. The ratchet tightens options, squeezing the discretion that legislatures once had.

This Article seeks to solve the puzzle of how courts have scrutinized, and should scrutinize, legislative changes to election laws. Part I identifies recent instances in which federal courts have invoked a version of the Democracy Ratchet. It identifies the salient traits of the Democracy Ratchet in these cases. Part II describes why the Democracy Ratchet has gained attention, primarily as a tactic of litigants and as a convenient benchmark in preliminary injunction cases. Part III examines of the history of the major federal causes of action concerning election administration—Section 2 of the Voting Rights Act, the Burdick balancing test, and the Equal Protection Clause. In each, it traces the path of the doctrine to a point where a version of the Democracy Ratchet might be incorporated into the test. It concludes that these causes of action do not include a substantive Democracy Ratchet. Part IV turns to determine how the Democracy Ratchet might be used. It concludes that the Democracy Ratchet is best identified as an evidentiary device and a readily-available remedy for courts fashioning relief. It then offers suggestions for its appropriate use. Part V identifies some concerns with existing use of the Democracy Ratchet and instances in which it may be incorrectly used. It offers guidance for courts handling changes to election laws. Part VI concludes.

Federal Judicial Clerkship Report of Recent Law School Gradates, 2018 Edition

I've regularly posted judicial clerkship statistics on this blog. This year, I offer something slightly different: "Federal Judicial Clerkship Report of Recent Law School Gradates, 2018 Edition," a report I've posted on SSRN.

This Report offers an analysis of the overall hiring of recent law school graduates into federal judicial clerkships between 2015-2017 for each law school. It includes an overall hiring report, regional reports, overall hiring trends, an elite hiring report, and trends concerning judicial vacancies.

A preview of overall placement:

There's also been a decline in total law school federal clerkship placement, likely attributable in part to the rise in federal judicial vacancies:

For these and more, check out the Report!

My thoughts on Gill v. Whitford at SCOTUSblog: "No closer to consensus"

I had the opportunity to participate in a symposium on Gill v. Whitford at SCOTUSblog last here. Here's my entry. It begins:

Gill v. Whitford began as a blockbuster election-law case and ended (this time) as a federal-courts decision with a hint of trial strategy and evidence. It also left open the possibility of a transformational view of the First Amendment for future partisan-gerrymandering cases.

In 2016, a three-judge federal court found that Wisconsin’s state legislative map drawn in 2011 was an unconstitutional partisan gerrymander. Many hoped that the Supreme Court could provide a majority opinion articulating a standard for lower courts to handle such claims — past attempts at securing a majority had been elusive. But it wasn’t meant to be.