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Tuesday, April 19, 2016

The obligation of law schools towards law students

A question I have thought about a lot recently is what obligation law schools have to refuse to accept certain applicants on the grounds that they are unlikely to pass the bar exam. 

This may not be a big concern at first and second tier schools, but it is a real issue for third and fourth tier schools.  While my sense is that most third and fourth tier schools (including my own) have significantly reduced the size of their entering class in the last couple of years in the face of reduced demand for our services, the applicant pool has been reducing in size even quicker.  The net result is that to fill even our reduced class size, we have taken applicants with lower entering indicators than was the case in 2009 or 2010.  While the correlation is not perfect, there is a correlation between entering indicators, particularly LSAT scores, and likelihood of passing the bar exam.  The net result is that as indicators have dropped many third and fourth tier law schools have seen their bar passage rates drop as well. 

I know already that the comments (if any) are likely to be dominated by people saying that law schools have an obligation not to take students who cannot pass the bar.  Let me state quite clearly that I agree.  Law schools should not take students who have no likelihood of passing the bar.  Conversely, there is no problem with taking students who will almost certainly pass the bar.  But those are the easy answers.  The harder problem is what to do about the students in the middle – those students who are neither very likely to pass the bar nor very likely to fail the bar.

Assume for the moment that we could make an estimate of a student’s likelihood of passing the bar based on their LSAT score.  This estimate would be uncertain as LSAT scores are a crude indicator of the aptitude for law school and the bar exam.  We might, for example, end up with an estimate that someone with an LSAT score of 147 has approximately a 70% chance of passing the bar.  The problem, of course, is that you either pass the bar or you don’t and most of the students with an LSAT of 147 will pass, even though about 30% will not.  There is no way, as far as I can tell, to identify in advance which 30% will fail.  (This may seem obvious, but if we could tell with perfect accuracy which students would pass and which would not, then we should just refuse to enroll students who will not pass the bar.  The reality is not so easy.)

The question then is what likelihood of bar passage is too low for us, in good conscience, to enroll a student.  I don’t believe there is an objectively correct answer to this question.  We could set the bar quite high.  For example, we might say that no law school should enroll any student who has less than a 90% likelihood of bar passage.  This would have several consequences, not all of them good.  First, it would likely result in 90% of the students graduating from law school passing the bar.  This is obviously a benefit to the change.  Fewer students would feel the adverse consequences of failing the bar.

But there would also some consequences that are undesirable.  First, it would deny many students who want to go to law school the ability to do so.  This is a non-trivial problem.  Some people really want to become lawyers.  (As an aside, I have had a number of students tell me that they have known since they were children that they wanted to be lawyers – in many cases very specific kinds of lawyers.)  A system that says to them, I am sorry your indicators are too low for you to enroll seems in many ways to be a system that has taken paternalism too far at the expense of the individual’s freedom to decide their own course in life.  Moreover, while I have no data to support this hypothesis, I suspect that students with low indicators but a strong desire to succeed in law school are likely to over-perform their indicators.  It would be doubly unfair to exclude such students if their real likelihood of bar passage is higher than their LSAT score suggests.

Such a system would also adversely affect many students who we want to encourage to go to law school.  My own school, the John Marshall Law School, prides itself on being a “school of opportunity.”  Historically, we have offered a route into the practice of law for many, like immigrants, women and minorities, who might not otherwise have been able to attend law school.  Perhaps unsurprisingly, these marginalized groups have also tended to have lower indicators.  The result is that any attempt to limit enrollment based on indicators would disproportionately affect groups who have been historically disadvantaged.  This result seems unfair and undesirable.  We need more lawyers from these historically disadvantaged groups, not fewer.

As I said before, I don’t think there is an objectively correct solution to this problem.  I suspect how you answer it depends on how you fall on a scale from paternalist to individualist and on how much risk you are willing to tolerate.  My question to you is assuming that law schools should have an obligation to refuse to enroll students because their likelihood of bar passage is below some threshold, where would you place that threshold (i.e., what percentage chance of passing the bar should be the minimum)?

Personally, I do think law schools should refuse to enroll students if their likelihood of passing the bar is too low, but I am not certain where to draw the line.  I tend to feel it should be around the 70% level.  For me, this level balances the personal consequences to the individuals who fail (which are obviously significant) against the right of the individual to make their own choices and society’s interest in a more diverse and inclusive bar.  But reasonable minds may differ.

Posted by Stuart Ford on April 19, 2016 at 06:18 PM | Permalink


I agree that positives you outline exist and are important but there are also negatives. There'd certainly be differential loan rates, but also some significant number of people wouldn't be able to get loans at all. This information function of underwriting -- a hands off self interested third party saying this just isn't a good bet -- is lost in the current system. Consider in comparison mortgages, where even subsidized FHA or veteran's loan simply won't be issued if the appraisal comes back for significantly less than the agreed on purchase price.

Posted by: Ben Dov | Apr 20, 2016 3:14:28 PM

I tentatively agree. If all loans for law school were provided by private loan organizations, I can see them wanting to adopt different interest rates for students with different sorts of indicators. That makes sense as they would want a higher rate of return to loan money to students with less likelihood of passing the bar and being able to pay the loan back.

This highlights why federal loans are so essential. Imposing higher interest rates on students with lower indicators will disproportionately effect minorities and those lower down the socio-economic scale. That is socially undesirable. I think we need more lawyers from these groups. This suggests that federal loans provide an important social good by facilitating law school attendance for these students.

Posted by: Stuart Ford | Apr 20, 2016 2:33:22 PM

I don't suggest that such a thing would ever come to pass, but offered it as a thought experiment consider how admissions would change if law schools had more skin in the game.

Separately, if there was a truly private market in lending without the federal involvement, I'd expect significant underwriting, including factors such as LSAT score.

Posted by: Ben Dov | Apr 20, 2016 2:19:09 PM

Unlike restaurants and car dealers, law schools (at least most of them) are non-profits. We owe an ethical duty to both our students, the legal profession and to society as a whole. We do not have any imperative to show a profit. So yes, I do think that we have some sort of obligation to consider what is in our students' best interests that a restaurant and car dealer do not have.

I would also note that there is a large and growing body of evidence that people are not particularly good at making these sorts of risk vs. reward decisions because they tend to over-estimate their likelihood of success while simultaneously under-estimating the consequences of failure.

We can do great harm by enrolling students who want to become lawyers but have little chance of passing the bar. I think we have some sort of obligation to consider that potential for harm in our decision-making.

As I noted in my original post, how you feel about this probably depends where you fall on a scale between paternalist and individualist. Apparently, I fall more toward the paternalist side of the scale than you do. Differences like these are why it is probably impossible to reach an objectively correct answer to this question.

Posted by: Stuart Ford | Apr 20, 2016 1:18:26 PM

@ Stuart -- "I think that law schools have some sort of obligation to consider what is in the applicant's best interest."

I understand there is an incentive for the school to make its statistics appear competitive, but I find that paternalism offensive. How could the school possibly know what that interest is? The students are adults and should be treated as such.

If you ran a restaurant, would you deny serving fattening food to chubby people? Do you advocate dealers be prohibited from selling cars to people who might not pass the driver's exam?

Posted by: Phil | Apr 20, 2016 11:49:41 AM

PaulB. I think you are referring to Standard 316. To be honest, I was unaware of the rule. And I don't know enough about the law schools you mention to know whether they have violated the rule (there are many exceptions in Standard 316). I also don't really know much about how the ABA handles violations of the Standards. Sorry.

Posted by: Stuart | Apr 20, 2016 12:27:22 AM

Anon. I would be open to evidence that failing to pass the bar is not necessarily a net negative for most law students. Most of my reasoning is predicated on the assumption that it is a net negative. If there was good evidence that going to law school was a net positive even for those that failed the bar, I would probably be willing to enroll students with a lower likelihood of bar passage. I would need to see the evidence first.

Posted by: Stuart | Apr 20, 2016 12:18:00 AM

Sadly Real. I do think our decisions should be motivated by more than just whether we have provided to the applicant the information necessary to make an informed decision. I don't think caveat emptor is a motto that I would be happy to use to enroll students in law school.

Posted by: Stuart | Apr 20, 2016 12:15:31 AM

Ben. I don't think that asking law schools to foot the bill is the most likely response to a withdrawal of federal loans. Instead, students would most likely turn to private loans. Most of those students who went to law school would probably still be able to go to law school, but at slightly higher interest rates because the loans were no longer backed by the government. I suspect the result would be an increase in the cost of law school and a slight decrease in the number of people able to afford law school. But I doubt it would change things greatly. I think it would be harder for poor people to go to law school and that is probably a net negative. Also, the decision about who gets to go to law school would essentially be made by private companies motivated only by a desire to make a profit. I am not sure that would be a positive change.

Posted by: Stuart | Apr 20, 2016 12:11:59 AM

Phil. That is not an objection I was expecting. I guess I disagree that the only thing that ought to matter is what the applicant wants. I think that law schools have some sort of obligation to consider what is in the applicant's best interest. Enrolling students who have little chance of passing the bar is for most students probably not going to be in their interest. I don't think this consideration should be predominant, but neither should the only concern be what the applicant wants. I also think that law schools have an obligation to consider our obligation to the legal profession and to society as a whole. Enrollment decisions should be based on a balancing of these factors.

Posted by: Stuart | Apr 20, 2016 12:07:22 AM

Keep in mind that the best data available suggests there is a premium to earning a JD even at the bottom tier. That premium is NOT dependent on passing the bar and confirms Phil's anecdotally based view that law schools provide legal education as well as a possible path to a career as a licensed lawyer.

Posted by: Anon | Apr 19, 2016 11:29:29 PM

Isn't there an ABA rule that in order to remain accredited that its law school graduates must be no lower than 15 percentage points below the state's average? How about actually enforcing this rule? Here in CA, schools like Whittier, Golden Gate, and Thomas Jefferson continually fall below this modest target. Taking away accreditation from places like this would be a great start.

Posted by: PaulB | Apr 19, 2016 9:46:56 PM

I've never understood the constant suggestions that law schools internalize all of the risk of students they admit. A career path is a risky thing, and law schools have insufficient information to judge whether a candidate - even one with an LSAT of 145 - will eventually pass the bar. I get that government subsidization may cause oversubscription, but the solution is competition in the lending rates market, not shifting of risk from buyer to seller.

The economist in me says that no duty is owed, other than non-falsity of information. Students with low scores are adults and know they will face long odds of passing the bar. They can also demand to see bar passage numbers and/or correlations before committing to a particular law school.

The realist in me says that the economist in me has to go hide, because the ABA (and a whole big angry mob) says that schools are not supposed to admit people who do not appear capable of passing the bar. So, folks like Phil are the outliers, and law schools ought to admit students only if they believe they are capable of passing the bar. And, given the lending source, it's a sensible rule at that. And LSATs are not the only indicator - there are other things you can look at to help determine if that is true.

Posted by: Sadly Real | Apr 19, 2016 8:18:08 PM

Let's ask the question another way: what if anything would change about your school's admission policy if rather than the federal government lending tuition to anyone you admit, the school itself had to lend admitted students their educations?

What if the obligation to pay was held in abeyance unless and until a student passed a bar exam?

Posted by: Ben Dov | Apr 19, 2016 7:28:37 PM

"Law schools should not take students who have no likelihood of passing the bar." I could not disagree more. A school exists to provide an education in the law. Period.

The state bar exists to provide a path to the practice of law.

There are a lot of people who wish to obtain a legal education, but who have no desire to practice. I am one of them. While I probably could have passed the bar (I graduated first in my class in a lower-tier school and my peers with similar grades all passed), I attended law school for other reasons. So did a lot of my classmates: engineers, realtors, accountants, professors, political activists, etc.

Law schools would do themselves a huge favor if they stopped pretending they were a vocational program and started acting like....well....schools.

Posted by: Phil | Apr 19, 2016 6:57:43 PM

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