Unintended consequences are common. One develops a great idea; it takes form; it is discussed and debated; and, finally, it takes effect. But it may result in unintended consequences, it's always been fascinating to think about those unintended consequences. I've extensively discussed unintended consequences of matters such as LSAT administration, accommodated LSAT test-taking, and distortions in law school admissions.
The American Bar Association has moved closer to approving a new accreditation standard. At least 75 of law graduates from an institution must pass the bar exam within two years. It is a much simpler rule than the previous standard, and it holds schools to a higher standard.
Might there be unintended consequences? Many schools right now currently fail that standard. Professor Brian Leiter rightly wonders if schools will focus more on bar prep than other aspects of legal education. It is also likely that many schools will seriously reconsider their class sizes, admissions standards, academic dismissal rates, and transfer students.
But it's also worth noting that not all state bar exams are created equal. Perhaps nothing makes that point so clearly as looking at the passing scores required for the Uniform Bar Exam, a standardized bar exam with a single score, and varying scores required for admission in different states. A 260 will pass in Minnesota or Alabama, while a 280 is required to pass in Alaska or Idaho. My colleague Rob Anderson has identified the varying degrees of difficulty of many states' bar exams. And California is at the top--I've identified how California bar test-takers are more capable than test-takers in other states, but they fail at higher rates because of the difficulty of the bar.
So take a state like California. It is very likely that a number of schools will face serious difficulty meeting this standard--the first time rates for many schools are well below 50%, much less 75%, and even students who retake the test may make it a challenge for the total to pass the 75% threshold.
Some schools may begin to "export" students to jurisdictions with easier exams and higher pass rates--perhaps incentivizing them with stipends on the condition they take the exam in an easier jurisdiction.
But that's a potential unintended consequence that is school-centered. Might there be bar-centered consequences?
Suppose the state bar of California suddenly finds that four or five of its law schools are at risk of losing ABA accreditation. While some may praise that outcome, it's not clear that the state bar would do so. It might be inclined to lower its standards to increase pass rates (more in line with other states) and keep its schools in the ABA's good graces. Other states with particularly difficult bar exams, or with law schools that have significant political clout, may do the same.
Of course, this is speculative. And I make no claim as to whether such decisions would be good or bad--one could think some state bars are too difficult and that the pass rates should be increased, or one could think that the bar should not lower its standards. Instead, it's simply to identify some of the potential consequences that may come about from proposals like this. Only time will tell whether such consequences actually arise.