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Harvard Professor: 'Low Bar Passage Rates Can Be a Good Thing'

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By Jonathan R. Tung, Esq. on November 06, 2015 8:59 AM

Harvard law Professor Noah Feldman recently put forth the suggestion that it's not up to law school admissions to baby law school applicants out of applying for schools; its up to students to make their own decisions.

Although there is nothing particularly earth shattering about this statement, it strikes some people as being outrageous, given that bar passage rates have been plummeting. But the professor remains adamant in his position. Although, Harvard JDs probably don't have too hard a time with the bar exam, do they?

The Half-Full View

Professor Feldman presents the view that it's not up to law schools to determine who should and should not be admitted into the incoming 1L class. And indeed, admitting students with only the highest scores would rightfully qualify law schools as being elitist. The suggestion that law schools should "save" applicants from the risk of law school debt sounds just too "paternalistic."

Feldman goes on to suggest that low bar pass rates may be a good thing: "If all students were passing the bar, it would be a sign that law schools weren't taking a chance on students at the margin of the capacity to succeed." Top law schools and even less prestigious institutions should strive to admit students whose Law School Admission Test scores aren't at near the top because doing so gives risk-taking students a chance to pursue their dreams. He reminisces somewhat nostalgically about the time when elite schools would simply flunk people who couldn't make the cut. There was no controversy then.

The Half-Empty View

Jordan Weissman at Slate takes some of what Prof. Feldman has to say with a grain of salt. The primary purpose of law schools, he says, is to mint lawyers. It's one thing to "wax lyrical" about wildly successful presidents (who, by the way, all went to an Ivy League), but if students fail to pass the bar exam, there is a disconnect between what students paid for -- and may be paying for the rest of their days -- and what they were expecting: a license. The point of hovering over schools to tighten standards is not to push out those students at the margin, he says, but to keep schools from "preying" on those applicants who truly don't have what it takes.

Views From Outside

If I'm understanding Prof. Feldman correctly, then he either proved Weissman's point, or at least didn't defend position very well. Flunking out of law school is actually hard. Or it should be. But even applicants with LSAT scores in near the average for the school ought to find it quite doable to maintain a GPA high enough to ensure that she wouldn't get kicked out. Succeeding on the bar exam, on the other hand, is another story entirely. And let's not forget that not all bar exams are built the same. Weissman's comments are difficult to counter. Few people would disagree with a closely related charge that students go to law school to eventually become lawyers, not privileged social register hedge fund managers or presidents of the United States.

It may be true that a standardized test score, taken alone, shouldn't determine your future, as Professor Feldman says. But it certainly will determine whether or not you can practice law.

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