Virtually all the deans of law schools in California, of ABA-accredited and California-accredited schools, have come out in favor, at multiple stages, of lowering the cut score for the California bar exam. The score, 144, is the second-highest in the country and has long been this high. Given the size of California and the number of test-takers each year, even modest changes could result in hundreds of new first-time passers each test administration.
The State Bar, in a narrowly-divided 6-5 vote, recommended three options to the California Supreme Court: keep the score; lower it to 141.1; or lower it to 139. As I watched the hearing, the dissenters seemed more in favor of keeping it at 144. At least some of the supporters seem inclined to support the 139 score, or something even lower, but recognized the limitations of securing a majority vote on an issue. Essentially, however, the State Bar adopted the staff recommendation and offered these options to the California Supreme Court.
The Court could adopt none of these options, but I imagine it would be inclined to adopt a recommended standard, and probably the lowest standard at that, 139. (The link above includes the call from the Supreme Court to evaluate the appropriateness of the cut score, a hint, but hardly definitive, that it believes something ought to be done.)
What surprised me, however, is that there would be such unanimity among law deans, because the impact on legal education could be quite significant--and not benefit all institutions equally. Put another way, I understand the obvious short-term benefit for all institutions--some number of law school graduates who previously might have failed the exam would pass, redounding to the benefit of the institution and those graduating classes.
But that, in part, assumes that present circumstances remain the same. Invariably, they will not. Let me set up a few things that are likely to occur, and then game out some of the possible impacts these changes might have on legal education--all on the assumption that the cut score drops from 144 to 139.
First, the number of passers will increase fairly significantly. About 3480 people passed the bar when 8150 took it in July 2016 bar exam. That included about 3000 first-time passers among 5400 first-time test-takers. Bar test-takers are also up significantly this test (in part likely because of the reduction from three days to two). We should expect that number in this cohort to rise to about 4100 passing--and probably more this administration, given that there were more test-takers. We may expect more out-of-state attorneys, or people who'd failed and given up, to start attempting the test again. Statistics also indicate that the greatest increase in new attorneys will tend to be racial minorities, who have historically passed the bar exam at lower rates.
The change will also disproportionately benefit California-accredited schools: while ABA-accredited schools on the whole would see a 17% increase in pass rates, California-accredited schools would see about a 70% increase in pass rates. (Granted, far fewer graduates from these schools take the bar--only about 100 passed the July 2016 bar exam.)
Additionally, we know that this year's test-takers scored better nationwide. If that trend translates to California, too, we would expect a few hundred more on top of that figure. And we may also expect an increase of test-takers to linger for a long period of time if more people are attracted to California because of it has a modestly easier test to pass.
This obviously, in the very short term, primarily benefits those students who scored between a 139 and a 144, but would have failed the bar exam, and schools with those student populations. In the slightly longer term, it will benefit students who scored less than a 139 and on repeat have a much higher chance of securing a 139 than a 144.
About 700 to 800 (or potentially even more, depending on the volume of test-takers) extra attorneys into the system per July, and some smaller number of extra attorneys per February, should slowly exert changes to attorney prices in California, as Professor Michael Simkovic has reasoned. More lawyers means more competition, which means that prices should drop, particularly among attorneys catering to more price-sensitive clients (no one thinks Vault 100 law firms will start slashing California salaries!). It's worth noting, too, that this change may be more gradual at first--there has been a drop in test-takers overall, so the increase in pass rates may not be as dramatic unless (or until) test-taking volume rebounds to previous highs. (For instance, in the July 2013 exam, nearly 5000 passed the exam among 8900 test-takers.)
Professor Robert Anderson and I also indicated that we would expect more attorneys who would face discipline. Currently, we estimate those who score a 144 on the bar exam ultimately face a career likelihood of facing discipline at around 9%. (This compares to the overall likelihood of about 5% at 35 years since admission to the bar.) Those with a 139, we project, would likely face a career likelihood of facing discipline at around 12%. The entering cohort would have a somewhat higher likelihood of facing career discipline at some point a 35-year career.
Finally, some law schools will disproportionately benefit, typically those schools at the lower end of the performance—but not whose student bodies perform at the very bottom among law schools. If the cut score is lowered from 144 to 139, schools who had a significant “middle” of the curve, with the bulk of their graduates scoring in a range around 135 to 145, should see the bulk of improvement.
The chart below illustrates a very rough projection of the improvement in performance of each school from the July 2016 bar exam if the score had been lowered to 139. This is very rough because many factors, particularly the distribution of the students at each school, and should be taken only as rough estimates—any figure could easily be a few percentage points higher or lower; and complicating the estimate is that the July 2017 results would, of course, look different. I’m simply trying to fit the projection to last year for some reference.