Are Lawyers Getting Dumber?

Yes, says the woman who runs the bar exam

Natalie Kitroeff

Photographer: Meredith Jenks for Bloomberg Businessweek

Last August, the tens of thousands of answer sheets from the bar exam started to stream into the National Conference of Bar Examiners. The initial results were so glaringly bad that staffers raced to tell their boss, Erica Moeser. In most states, the exam spans two days: The first is devoted to six hours of writing, and the second day brings six hours of multiple-choice questions. The NCBE, a nonprofit in Madison, Wis., creates and scores the multiple-choice part of the test, administered in every state but Louisiana. Those two days of bubble-filling and essay-scribbling are extremely stressful. For people who just spent three years studying the intricacies of the law, with the expectation that their $120,000 in tuition would translate into a bright white-collar future, failure can wreak emotional carnage. It can cost more than $800 to take the exam, and bombing the first time can mean losing a law firm job.

When he saw the abysmal returns, Mark Albanese, director of testing and research at the NCBE, scrambled to check his staff’s work. Once he and Moeser were confident the test had been fairly scored, they began reporting the numbers to state officials, who released their results to the public over the course of several weeks.

In Idaho, bar pass rates dropped 15 percentage points, from 80 percent to 65 percent. In Delaware, Iowa, Minnesota, Oregon, Tennessee, and Texas, scores dropped 9 percentage points or more. By the time all the states published their numbers, it was clear that the July exam had been a disaster everywhere. Scores on the multiple-choice part of the test registered their largest single-year drop in the four-decade history of the test.

“It was tremendously embarrassing,” says Matt Aksamit, a graduate of Creighton University School of Law, who failed Nebraska’s July bar exam last year. “I think a lot of people can relate to what it’s like to work hard for something and fall short of what you want.” (Aksamit took it again in February and passed.)

Panic swept the bottom half of American law schools, all of which are ranked partly on the basis of their ability to get their graduates into the profession. Moeser sent a letter to law school deans. She outlined future changes to the exam and how to prepare for them. Then she made a hard turn to the July exam. “The group that sat in July 2014 was less able than the group that sat in July 2013,” she wrote. It’s not us, Moeser was essentially saying. It’s you.

“Her response was the height of arrogance,” says Nick Allard, the dean of Brooklyn Law School. “That statement was so demonstrably false, so corrosive.” Allard wrote to Moeser in November, demanding that she apologize to law grads, calling her letter “offensive” and saying that the test and her views on the people who took it were “matters of national concern.” Two weeks later, a group of 79 deans, mostly from bottom-tier schools, sent a letter asking for an investigation to determine “the integrity and fairness of the July 2014 exam.”

Photographer: Meredith Jenks for Bloomberg Businessweek

Moeser wasn’t swayed. She responded in December, saying she regretted offending people by characterizing the students as “less able”—but maintained that they were relatively bad at taking the exam. In January, Stephen Ferruolo, the dean of the University of San Diego School of Law, asked Moeser to explain how the NCBE scored the test. Moeser rebuffed him, instead inviting Ferruolo to consider the decline in his students’ Law School Admission Test scores in recent years, which, she wrote, “mark the beginning of a slide that has continued.” The implication: Ferruolo and the rest of the people running law schools not named Stanford or Harvard should get used to higher fail rates.
“The response is to stonewall,” Ferruolo says. “Where’s the accountability? I’m not looking to find more information so I can attack the NCBE. I am looking for more information so I can do my job as a dean.”

This year’s results, which will start coming out in September, may be the most critical in the exam’s history. Lawyers and those who hope to join their ranks will soon know if last year was an aberration or a symptom of a worsening problem. Critics of the bar exam say the test is broken, while Moeser maintains the reason so many students are failing is that they are less prepared. “You can squawk loud and long about what’s happening,” Moeser says, “but you’ve got to look at who your student body is.”
 
Whether or not the profession is in crisis—a perennial lament—there’s no question that American legal education is in the midst of an unprecedented slump. In 2015 fewer people applied to law school than at any point in the last 30 years. Law schools are seeing enrollments plummet and have tried to keep their campuses alive by admitting students with worse credentials. That may force some law firms and consumers to rely on lawyers of a lower caliber, industry watchers say, but the fight will ultimately be most painful for the middling students, who are promised a shot at a legal career but in reality face long odds of becoming lawyers.

As the controversy raged on into this spring, Moeser’s detractors seized on an irony of her résumé. Wisconsin is the only state that doesn’t require its local graduates to take the bar exam in order to practice law. Moeser never sat for it. “The person who is the czarina, who determines more and more every year what Americans have to learn to pass the bar to become licensed lawyers … never took the bar,” Allard says. “Who is she to say what the standard is? Who is she?”

“You can squawk loud and long about what’s happening, but you’ve got to look at who your student body is”

From a conference room in Madison, Moeser watches a thick layer of smoke on the horizon, traces of a fire raging in Canada. It’s early July, the start of her annual high season, when the NCBE sends the first copies of the bar exam to state officials across the country. After a moment her gaze shifts to her assembled employees, asking them how the day is going. She has more imminent threats to consider.
Moeser is warm and intimidating at the same time, speaking slowly and pausing to stare at the person she’s talking to, like a pitcher guarding against a stolen base. She’s wearing a denim shirt decorated with “NCBE” in gold stitching.

After graduating from the University of Wisconsin Law School in 1975, Moeser took a job at the state bar, partly because she had just given birth to her first son, she says, and the organization promised flexibility for its first nonsecretarial female employee. For 17 years, she administered the Wisconsin bar exam for out-of-state grads. In 1994 she moved to the national level, taking over the NCBE. “It’s an irony that I got to do this and I personally have never taken the bar exam,” Moeser says.

Her eyes shift to the ceiling when considering the hits the test has taken over the past year. Those arguments are like clay pigeons, she says: “You shoot them and they splinter, but the fact is, they are going to get up there and get some attention.”

In a typical year, about 50,000 people take the exam, which is created by a team of academics, judges, and lawyers that the NCBE enlists as volunteers. The organization itself has about 85 employees, including a team of Ph.D.s who spent their time in graduate school on the unenviable mission of studying standardized tests.

Sample questions on the NCBE’s website ask whether a hypothetical lawsuit is destined to fail or why a company’s courtroom strategy is bogus. One particularly intense problem concerns a father who killed his crack-addicted son and whether he should be allowed to argue self-defense in court. State officials score the essays, while the multiple-choice answers are routed back to Madison for Moeser’s organization to grade.

Moeser says underqualified law grads don’t deserve to pass the bar just because they earned a J.D. Her role, she says, is to protect consumers. “Would most people say, ‘Oh, we ought to lower the standards so we can have more pediatricians?’ You’d say, ‘Not with my baby, you can’t,’ ” she says.
The July 2014 exam was controversial even before the results came in. On Tuesday, July 29, after spending the first day of the exam furiously writing, some law graduates who tried to upload their essays were met with error messages. The software that thousands of test takers used for the exam in 43 states had failed. The malfunction was dubbed “barmageddon” and “barghazi” online.

Students spent hours frantically trying to load their essays into the system, and several states had to push back the deadline. Students took to Twitter (after leaving their testing rooms) in all-caps cries for help that ranged from cutesy to apoplectic. ExamSoft, the software maker, ultimately settled with graduates who brought a class action against the company and agreed to pay each member of the class $90. ExamSoft declined to comment for this article.

One of the first steps in evaluating the exam is comparing this year’s results with those of previous aspirants’. The NCBE looks at how the graduates performed on several questions that have appeared on previous exams. If the current test takers did worse, that’s a sign that previous cohorts would have done better on the test overall than the current group. The NCBE converts raw results into scaled scores based on that process.

When the 2014 results came in, pass rates were down across-the-board in states that used the software and those that didn’t. Deborah Merritt, a law professor at Ohio State University, is convinced that the tech problems are partly responsible for the low scores. “You can’t explain that big a gap with the quality of students,” she says.

Merritt says the process punished last year’s test takers. She contends that the glitch skewed the curve, because people in several states may have done worse on certain questions after they spent a night in panic. “If you give one exam where people sit down and another where they stand up for six hours, of course the results will be different,” she says.

Moeser won’t even entertain that analysis, which she calls baseless. “I am not in a position to spend time analyzing results for which I lack respect,” she says. “We’re not in the blogging business.”
Besides, Moeser says, there will always be people who deal with stress better than others. The questions about ExamSoft did pique the interest of her test director, Albanese, who wrote in a June publication of the organization’s magazine that “the glitch cannot be ruled out as a contributing factor.”

“The problem I have is the complete denial on the part of the NCBE that this is a possibility worth considering,” says Jerome Organ, a law professor at the University of St. Thomas at St. Paul (Minn.) who studies bar pass rates. “It’s hard to acknowledge a mistake. It’s really hard to acknowledge one when you’re claiming to be the experts and your credibility and cachet depend on it.”

Since 2008 partner earnings at firms of all sizes have decreased 9 percent in constant dollars, according to federal tax filings. Solo practitioners have been struggling for much longer. Since 1988 earnings for standalone attorneys, of which there are about 354,000 nationally, have declined 31 percent. The legal industry has shed more than 50,000 jobs in the past eight years. The decline began decades ago. Solo practitioners began floundering in the late 1980s. Their average income, adjusted for inflation, was $71,000 in 1988; it was $49,000 in 2012.

Even as business was tanking for a lot of lawyers, American law schools happily welcomed more students. In 1987 there were 175 accredited American law schools. By 2010 there were 200, and after steadily increasing for years, enrollment peaked at 52,000 that year. “There was willful ignorance in what was going on,” says Benjamin Barton, a law professor at the University of Tennessee at Knoxville and author of a recent book on the profession, Glass Half Full.

When Wall Street imploded in 2008, law schools soon took a hit. Hearing that there weren’t enough jobs for all fresh J.D.s, college grads abruptly turned away from the profession. In 2014 enrollments reached their lowest level in four decades. In 2015 fewer people are expected to apply to law school than at any point in the past 15 years. “There was a heyday, and it’s now enduring a correction,” Moeser says. The trouble arises when the people running law schools try to intervene in that correction, she says. “The economics that are driving law schools are scary.”

Big law firms say shrinking law school classes and less qualified graduates haven’t cut into their talent pool. Boutique shops might not be so fortunate, says Tom Henry, the vice chair of Willkie Farr & Gallagher’s Professional Personnel/Legal Recruiting Committee. “It may further constrict those smaller firms’ ability to compete for the same type of business,” he says.

Young people’s aversion to law school is a natural reaction to a saturated job market, says Jim Leipold, the executive director of the National Association for Law Placement, which tracks employment outcomes for recent law grads. “There was definitely an oversupply of law students,” Leipold says.

On the day the first exams are leaving her fiefdom in July, Moeser wants to talk about the LSAT, the law school entrance exam. She pulls out a magazine page. “This is my favorite chart.” One axis shows the change in law students’ LSAT scores at the 25th percentile since 2010, meaning the people who were at the bottom quartile of test takers. Most schools have seen scores at that strata decline. The other axis shows change in enrollment over the same period. Almost every school has lost students, as fewer and fewer young people apply. Some places, Moeser suggests, are dropping their standards dramatically in the interest of stemming that tide. “Feast your eyes on New York,” she says, flipping to a table that has the scatter plot’s data. Her finger lands on Brooklyn Law School, where Allard, her loudest critic, runs the show. In five years the bottom quartile of Allard’s students saw test scores drop 9 points—a steeper decline than at 196 other law schools.

In a pinstriped charcoal suit and purple tie, Allard is the most formally dressed person in the classroom. Eighteen Brooklyn Law students are here for a special course to guide them through summer jobs at law offices. One student volunteers that she failed to finish an onerous one-day assignment to summarize a deposition hundreds of pages long. “How did you sleep that night?” Allard asks. Just fine, the student responds, not understanding his implication. “Well, maybe that’s a bad thing,” the dean mutters.

Brooklyn Law opened in 1901 as a night school for working-class strivers, but it’s become a full-time, standalone school and earned a solid reputation. Allard and his allies say the most recent bar exams are stacked against some of their students. “We live in a society where there is an increasing gap between the rich and the poor,” says Ferruolo, the dean at San Diego. “We worsen that by this system that puts more and more emphasis on a testing regime which is biased.” The bias, he suggests, stems from the common practice of bar applicants spending as much as $4,000 on cram courses. Less well-off graduates, already burdened by tuition loans, can’t spend as much time or money preparing for the exam—and end up doing worse.

When fewer people pass the exam, Allard says, poor and working-class Americans suffer in another way: “Most people in America can’t afford lawyers. Most small businesses can’t afford lawyers. The biggest cause of that is that there are too few lawyers being produced.” The bar exam, he says, “perpetuates the status quo in a way that keeps qualified, motivated people from becoming lawyers and deprives most people of affordable legal services.”

Paul Campos, a professor at the University of Colorado Law School and author of the 2012 book Don’t Go to Law School (Unless), cannot suppress a laugh when presented with that logic. “There’s a shortage of lawyers in this country the same way that there’s a shortage of Mercedes-Benzes,” he says. “There are many people who want them who don’t have them.” He predicts that pumping out more J.D.s will only lead to more under- or unemployed attorneys.

That’s part of why Moeser says schools should take their students’ professional prospects into account long before they take the bar. The problem, she insists, isn’t that her test discriminates but that law schools looking to put butts in seats are lowering their standards. In the process, she says, they create false expectations. “You’ve got this underclass in law schools who are really keeping the lights on but not reaping the benefit.” Moeser expects the reckoning to continue. “I would anticipate the scores will drop again, if I had to guess,” she says, her mouth drawing a straight line across her face. “I don’t anticipate a rebound.”