Michael Simkovic and Paul Horwitz have a few thoughts on passing, failing, and retaking the bar exam. I had a few things to add--though, I admit, less specifically about their issues identified!

First, I've blogged extensively about the decline in bar pass rates and the expectation that the declines will continue. A few caveats are in order. Much the top line data I use this cycle is based on overall pass rates; first-time test-taker rates are almost always higher, and first-time test-taker rates at ABA-accredited law schools higher still. But the data we have so far from most jurisdictions is limited to overall pass rates (though, some do disclose more specific information); when the more granular is released this spring, I'll discuss that, too. At the same time, the decline even in overall pass rates is a sign of the decline in overall graduate quality.

First-time pass rates are often the gold standard for a number of reasons. The first, perhaps to most school's chagrin, is the factor in U.S. News & World Report that evaluates a school's first-time pass rate in relation to the jurisdiction's overall rate. But importantly, of course, schools prefer bar pass rate success, and that's most easily identified with first-time pass rates. (Professors Simkovic and Horwitz have some more thoughts about the value or importance of those kinds of things, or about certain schools that are perhaps more vulnerable, which I'll reserve for the time being.) And, loan repayment is expected to begin shortly after graduation, which makes bar passage--and turning one's efforts toward a career is perhaps one of the most important things, particularly if one fails the bar and must take into account opportunity costs of taking time to retake or losing potential time and income in a legal career, or consider the sunk cost of legal education and a prior bar failure, or other such matters.

We have little data, however, about what happens once someone fails the bar exam. There are few longitudinal studies of a specific batch of test-takers. Many jurisdictions simply lump all "repeaters" in a single data set; those who indicate the number of the attempt don't indicate when the previous attempt took place.

But one intriguing study from Texas followed the July 2004 bar exam. The data sets aren't as intuitive as the visuals, so I've offered a couple of ways of interpreting what happened to the folks who took the July 2004 exam--and what happened to them over the next four administrations of the exam.

The overwhelming majority of the 2293 first-time test takers passed on the first attempt. But what happened to the other 474? A majority of that remainder passed on subsequent attempts, but a number dropped out with each subsequent round. 62, for instance, never tried again after the first failed attempt. But 224 passed on the second time around. You can see from the graphic that several more dropped out with each subsequent attempt, until the fourth attempt had just 23 test-takers--and 13 of those passed on their fourth try.

Visualizing the outcomes by each administration offers the following perspective, a kind of narrowing filter:

The study further examined the scores of the test-takers. In each subsequent administration of the test, the scores of the test-takers improved. (On average, of course--some had declines, and some improved far more than the average test-taker.)

Understandably, single-attempt test-takers had by far the highest scores on the first attempt--even though they included 61 test-takers who failed the bar and would never attempt the bar again. And, perhaps predictably, those who only took the bar twice had higher scores on the first attempt than those who would go on to take the bar three or four times. But it's notable that in each group, the results improved. Granted, there's some self-selection in the sense that a few dozen who failed an exam would drop out of the next attempt. And, presumably, those motivated to study with greater discipline are those who are going to take the bar on subsequent occasions. But the suggestion from the scores is that continued time and effort to learn the law will ultimately lead to success--over time.

There are different issues about whether these results are good or bad, or whether retaking the bar exam upon failing is a good or bad idea depending upon circumstances, or whether there are other costs with retaking the bar exam in lieu of other options, and so on--many things that have been discussed elsewhere and will continue to be discussed. But, I find these data points of some interest to track what actually happens among those test-takers from a single administration, and using the data as a starting point for considering what to do with changes in pass rates.