Despite improvement in MBE scores, bar exam rates appear to be falling yet again

I blogged earlier about the slight improvement in MBE scores, which, I thought, might lead to an increase in the overall bar pass rates. But I was in a wait-and-see mode, because, while MBE scores typically track bar pass rates, we needed to see results from jurisdictions to see if that would be the case this year.

It appears, however, that even though MBE scores rose, bar exam pass rates are declining again.

I continue to track overall pass rates (rather than first-time or first-time ABA rates) because that's often the only data many jurisdictions disclosed--but first-time pass rates are often much better. These are most of the jurisdictions that have publicly disclosed overall pass rates.

Bar pass rates have improved slightly in a couple of jurisdictions--Kansas rose from 76% to about 79%, and West Virginia from 69% to about 71%. But there are some declines--and some fairly significant ones--elsewhere. Missouri's fell from 84% to 79%--it was 91% in 2012. Indiana's dropped 13 points, from 74% to 61%. Washington's dropped 15 points, from 86% to 71%--it was 90% in 2012.

Assuming all things are equal, an increase in the mean MBE scores would have meant an increase in the bar pass rates. But why are seeing declines in many many jurisdictions?

My initial theory--unsupported by any evidence!--would be that the best students were sufficiently worried about the bar exam and studied more than ever. That would mean that the scores of people already inclined to pass the bar exam improved--and that wouldn't have any impact on the pass rates. It would shift up the mean score of the MBE without affecting the overall pass rates. And, if the quality of students law schools have been graduating has continued to decline, then we might expect to see overall pass rates decline.

It's also possible that these jurisdictions are outliers and we'll see improvement in pass rates in places like New York and California. (The small decline in the pass rate in Florida, however, is not a good sign on this front.)

In short, there was some excitement and enthusiasm about the uptick in the MBE scores. But if that uptick isn't translating into improved bar pass rates, law schools need to be seriously considering responses to continued declines in the months ahead.

(It's worth noting that I chose a non-zero y-axis to demonstrate the relative changes in performance; overall, a majority of test-takers continue to pass the bar in each jurisdiction.)

Law school graduates are clerking for federal judges at a (mostly) steady rate

Today is the day after Labor Day, which, in an earlier era, was a kind of holiday for third-year law students, who would send materials to federal judges who were hiring under "The Plan." After that cartel failed, federal judges hire at their own pace--often, ever-earlier.

An ongoing question about this practice lingers: do judges prefer graduates, or do they prefer clerks with some work experience? Because graduates were not subject to The Plan, were they a more popular choice until The Plan died? Or has there been a trend toward hiring clerks with some work experience?

When I looked at the data two years ago, it looked like there was no significant trend over four years. With another two years' worth of data, I thought I'd check again. The following totals are from the ABA employment summary reports and include all full-time, long-term (which includes one-year positions) positions as federal judicial clerks. (Please note that "federal" is undefined in the ABA guidelines--it might include magistrate judges, Article I courts, and other miscellaneous positions).

There's been a small trend downward in the total graduates placed into federal clerkships, but only time will tell if it's a trend or just a little noise. One reason may be credentials--as there are fewer incoming law students, there are fewer graduates at elite schools, or fewer graduates who possess the credentials that a judge may want. If judges choose not to dip lower into a graduating class, those judges may be inclined to move toward clerks with work experience. On a percentage basis, 1188 clerks for the Class of 2015 is much higher than the 1259 for the Class of 2013 simply because the total number of graduates has shrunk significantly--from 46,116 in the Class of 2013 (2.73% employed as federal clerks) to 39,418 in the Class of 2015 (3.01% employed as federal clerks).

Finally, the data has far more potential noise than just the concerns listed above. If there is an increase in new judges, or judicial vacancies, that changes the demand for all clerks, across both new graduates and clerks with work experience.

Why weren't bar exam pass rates an existential crisis in the 1980s?

I blogged about the small improvement in Multistate Bar Exam ("MBE") scores in the July 2016 administration of the test. We won't know what first-time pass rates from ABA-accredited law schools are for some time, but it's fair to assume we should see a small improvement nationally.

The drop in test scores--likely partially caused by a decline in the quality of the applicant pool over the last several years--has caused quite an uproar, particular as the ABA considers clamping down on schools with relatively low pass rates.

But if you look at MBE scores from the 70s and 80s, the peak time for Baby Boomers to be completing legal education, you'll notice that their scores are fairly comparable to the scores in the last two years.

So if MBE scores look a lot like they did back then, why is there such a commotion about them? Perhaps a few reasons.

First, expectations have changed. Gone are the days with the mythic "look to your left, look to your right" fears of dismissal. There is an expectation that virtually all law school enrollees complete their JD, and another expectation that those who secure the JD and take the bar will pass the bar. The challenges are no longer deemed to be the failure rates in law school or the bar exam, but in the process that one must "survive." A dip in bar pass rates,

Second, the fiscal consequences have changed. Indebtedness of students at graduation is quite high (for many), especially when law school loans are coupled with undergraduate loans (and sometimes credit card debt). Indebtedness has outpaced inflation over the decades. For students pressed with this debt, the prospect of failing the bar exam--and likely delaying or losing job opportunities--is more significant.

Third, the bar looks different today, and pass rates may differ despite similar MBE scores. Perhaps the sample size is just a little smaller in the 1980s--and perhaps these jurisdictions with the MBE had disproportionately lower pass rates. There's little question that states that have administered their own bar exams (like Louisiana) can have more inconsistent results. Consider a recent example from Oklahoma, which adopted the Uniform Bar Exam and saw pass rates plunge so significantly that it modified the passing score. Perhaps, then, the MBE score in the 1980s was not as indicative of overall pass rates--but that's more a lack of data on my end.

It's good to see the MBE score improve slightly. In an absolute sense, unfortunately, the pass rates will not approach what they were a few years ago. But while bar pass rates are historically low, the history is worth reflecting upon.

July 2016 bar exam scores improve slightly but remain near all-time lows

The good news for recent law school graduates? The July 2016 pass rates for test-takers will likely increase slightly nationally. As Deborah Merritt recently shared, the mean Multistate Bar Exam score rose from 139.9 in July 2015 to 140.3 in July 2016. Professor Merritt offers a few reasons why scores improved slightly, and I won't add to her good thoughts (despite other possible reasons that may come to light later!).

Given that bar exam scores hit a 27-year low last July, this is surely good news--particularly as the incoming predictors of law students across the nation continued to decline between the entering classes in 2012 and 2013. But there is an important matter of perspective: a 140.3 is still near all-time lows.

The July 2016 score is the second-lowest since 1988 (the lowest being July 2015), and still well off the mark of even the July 2014 score, much less the July 2013 score. In an absolute sense, the score is not good. Indeed, while modest improvements in the bar passage rates in most jurisdictions will be good news for those passing students and for law schools looking for any positive signs, they will not approach the pass rates of three or four years ago.

We should see pass rates from states like North Carolina and Oklahoma soon. As the fall wanes, we'll see more individual jurisdictions and more results from specific schools. And perhaps we'll see if dramatic changes occur in a few places or at a few schools--or whether the change is small and relatively uniform everywhere.

Fictional Attorney of the Month: Sally Carrera

Pixar's Cars might not always be at the top of adults' favorite Pixar films, but it's always at the top of Pixar's licensed goods for kids. But who can resist the story of a sleepy town of misfits tucked away on historic Route 66?

Sally Carrera, a sporty Porsche, seems out of place in a town that time forgot. But she explains that she was once a high-profile attorney in Los Angeles until she felt burned out on the legal profession. She went out for a drive, and when she ended up in little Radiator Springs, she couldn't go back to life in the fast lane. She fell in love with the quiet, rural life and chose to leave legal practice behind.

That doesn't mean she forgot about law. The film's hero, Lightning McQueen, ends up lost in Radiator Springs and wrecks the town. The local judge is prepared to let him go and get him out of town, but Carrera delivers a impassioned oratory to persuade the judge to make him fix the street--and wins. Not bad for a retired California lawyer.

Illinois presidential electors include many loyal to candidates other than Trump & Clinton

Parties have begun to nominate their slates of presidential electors for November's election. Illinois is one of the first to do so. What's perhaps most striking? Many electors showed loyalty to candidates other than Hillary Clinton and Donald Trump in the primaries.

I've suggested that a "Trojan Electoral College" might mean slates of presidential electors who are not truly supportive of the candidate being selected, given the record unpopularity of these two candidates (but with a particular emphasis on Mr. Trump).

Consider Illinois's Republican slate. Several GOP electors were delegates in the 2016 Illinois primary--but none were delegates for Mr. Trump. Karen Hayes (Cruz), Judy Diekelman (Kasich), Lee Trejo (Rubio), and Fred Floreth (Paul) all supported other candidates, and not a single Trump delegate made the Illinois GOP presidential elector slate.

Additionally, NPR reports that at least two electors were supporters of Bernie Sanders in the primary.

It might be, of course, that these electors would set aside their primary preferences and support the general election candidate, particularly once they've pledged to support that candidate. But it's not obvious that these slates of electors are filled with die-hard supporters. Instead, they are party faithful, who may long to exercise independent judgment this December.

"Natural Born" Disputes in the 2016 Presidential Election

I've posted a draft of a new article, "Natural Born" Disputes in the 2016 Presidential Election, forthcoming in the Fordham Law Review. Here is the abstract:

The 2016 presidential election brought forth new disputes concerning the definition of a "natural born citizen." The most significant challenges surrounded the eligibility of Senator Ted Cruz, born in Canada to a Cuban father and an American mother. Administrative challenges and litigation in court revealed deficiencies in the procedures for handling such disputes. This paper exhaustively examines these challenges and identifies three significant complications arising out of these disputes.

First, agencies tasked with administering elections and reviewing challenges to candidate eligibility often construed their own jurisdiction broadly, but good reasons exist for construing such jurisdiction narrowly given ample political and legal opportunities to review candidates' qualifications. while litigation in federal court usually led to swift dismissal on a procedural ground, challenges in state proceedings sometimes led to broad—and incorrect—pronouncements about the power to scrutinize the eligibility of presidential candidates. Third, decision makers repeatedly mused about how useful it would be if the Supreme Court offered a clear definition of a "natural born citizen." This suggests that executive and judicial actors are uncomfortable with non-federal judicial resolution of a constitutional claim like this one.

Finally, this Article offers a recommendation. After three consecutive presidential election cycles with time-consuming and costly litigation, it may well be time to amend the Constitution and abolish the natural born citizen requirement. Amending the Constitution is admittedly no simple task. But perhaps an uncontroversial amendment would find broad support in order to avoid delays and legal challenges seen in recent presidential primaries and elections.

Where are they now? Supreme Court clerks, OT 2006

Following up on posts on a ten-year retrospective on the Supreme Court clerks from October Term 2003, October Term 2004, and October Term 2005, here's what the clerks from October Term 2006 are doing. This list is probably unreliable and has not been fact-checked in any way, except for the links provided (and these links often aren't the best source material).

Chief Justice John G. Roberts

Felicia H. Ellsworth (Chicago 2005 / Boudin), partner at WilmerHale

George W. Hicks, Jr. (Harvard 2005 / J.R. Brown), partner at Bancroft

Keenan D. Kmiec (Berkeley 2004 / Sentelle / Alito (3d Cir.)), partner at Hunter & Kmiec

Paul J. Nathanson (Harvard 2004 / Silberman / Niemeyer), AUSA, E.D. Va.


Justice John Paul Stevens

Nicholas J. Bagley (NYU 2005 / Tatel), professor at Michigan

Chad Golder (Yale 2005 / Garland), AUSA, E.D. Va.

Jamal Greene (Yale 2005 / Calabresi), professor at Columbia

Lauren Sudeall Lucas (Harvard 2005 / Reinhardt), professor at Georgia State


Justice Antonin Scalia

Daniel A. Bress (Virginia 2005 / Wilkinson), partner at Kirkland & Ellis

Louis A. Chaiten (Northwestern 1998 / Sutton), partner at Jones Day

Joshua S. Lipshutz (Stanford 2005 / Kozinski), partner at Gibson Dunn

Hashim Mooppan (Harvard 2005 / Luttig), partner at Jones Day


Justice Anthony Kennedy

David W. Foster (Harvard 2005 / Kozinski), partner at Skadden

Lisa Marshall Manheim (Yale 2005 / Leval), professor at University of Washington

Eric E. Murphy (Chicago 2005 / Wilkinson), Solicitor General of Ohio

Mark R. Yohalem (Harvard 2005 / Rymer), AUSA, C.D. Cal.


Justice David H. Souter

Boris Bershteyn (Yale 2004 / Cabranes), partner at Skadden

David S. Han (Harvard 2005 / Boudin), professor at Pepperdine

Bryan W. Leach (Yale 2005 / Cabranes), CEO at Ibotta

Daniel B. Tenny (Michigan 2005 / Tatel), civil division, appellate, DOJ


Justice Clarence Thomas

John D. Adams (Virginia 2003 / Sentelle), partner at McGuireWoods

David A. Bragdon (Virginia 2002 / S. Williams), AUSA, E.D.N.C.

Adam Conrad (Georgia 2005 / Sentelle), partner at King & Spalding

Brandt Leibe (Yale 2005 / Luttig), partner at King & Spalding


Justice Ruth Bader Ginsburg

Kate Andrias (Yale 2004 / Reinhardt), professor at Michigan

Scott Hershovitz (Yale 2004 / W. Fletcher), professor at Michigan

Daphna Renan (Yale 2004 / H. Edwards), professor at Harvard

Arun Subramanian (Columbia 2004 / Jacobs / G. Lynch (S.D.N.Y.)), partner at Susman Godfrey


Justice Stephen Breyer

Jaren Janghorbani (Columbia 2004 / Jacobs / K. Wood (S.D.N.Y.)), partner at Paul Weiss

Tacy F. Flint (Chicago 2004 / Posner), partner at Sidley

Stephen Shackelford (Harvard 2005 / Boudin), partner at Susman Godfrey

Thiru Vignarajah (Harvard 2005 / Calabresi), Deputy Attorney General of Maryland


Justice Samuel Alito

Michael S. Lee (BYU 1997 / Alito (3d Cir.) / Benson (D. Utah)), Senator from Utah

Christopher J. Paolella (Harvard 1999 / Alito (3d Cir.)), partner at Reich & Paolella

Matthew A. Schwartz (Columbia 2003 / Alito (3d Cir.)), partner at Sullivan & Cromwell

Gordon D. Todd (Virginia 2000 / Beam), partner at Sidley


Justice Sandra Day O'Connor

Justin Driver (Harvard 2004 / Garland), professor at Chicago


A few thoughts:

Law professors continue to flow from a few justices. Nine members of this class went on to be law professors, the same number as last year. Six of those came from two justices, Stevens and Ginsburg. (And it's worth noting that while Ginsburg placed three professors this year, it doesn't match the full four-professor slate from OT 2003!)

More partners, and more boutiques. There were 19 law firm partners this time. Last year, a number were in an "attorney" or "counsel" role, but that doesn't seem to be the case for this class. Additionally, two clerks (Kmiec and Paolella) went on to start their own boutiques.

A Senator! A CEO! That's right, Senator Mike Lee of Utah is the first elected official I've run across in the last several years of doing this. Additionally, Bryan Leach is the CEO of a startup, another first in my review of Supreme Court clerks.

Public interest as government work. Usually, there are a couple clerks in a more policy-oriented public interest position, but this year it's pretty much limited to AUSAs, with an SG and a DAG thrown in for good measure.