• November 24, 2015


Update (November 24, 2015): Contrary to my point of view, below, a 11/23/15 National Law Journal Article by Sheri Qualters, “Bar Exam Pass Rates Drop Across the Country,” (paywall but initial peaks for free) suggests that the drop in law school applications has resulted in lowering standards at law schools and this is said to be reason for nationwide drops in bar exam pass rates.

Original post (November 16, 2015): As shown in the attached chart, there is a steady decline in the pass-rate of the Minnesota bar exam in recent years. Fewer are taking the exam and fewer of these fewer are passing the exam. Why?

I would suggest that it is not that applicants to join the Minnesota bar have grown less able in recent years nor that the substance of the Minnesota bar exam is getting more difficult.

Rather, I think that the Minnesota judicial system, including the board of law examiners appreciates that we have an over-supply of lawyers in Minnesota versus Minnesotans’ demand for lawyers. That is, there appears to be a sense that we have enough if not too many lawyers already.

Law school applications are down. Law schools are closing or merging. Law school class sizes are shrinking. Lawyers’ incomes are falling. And it appears these days that the Minnesota Supreme Court is somewhat more willing to disbar bad Minnesota lawyers rather than slap them on the wrist as they might have done in years past.

So maybe all of these factors will benefit current hard-working but hungry-for-work Minnesota lawyers?

There’s a problem with this theory. If we have an over-supply of lawyers, why are there so many Minnesotans with valid legal claims or valid defenses who cannot afford lawyers? Wouldn’t an over-supply of lawyers result in lowering of price?

Answer: No. The legal system itself imposes such high costs wholly aside from lawyers’ fees that, even if the services of Minnesotans’ lawyers were free (obviously impossible), Minnesota civil litigation would still be too expensive for many if not most Minnesotans. On top of these built-in costs, Minnesota lawyers must charge fees sufficient to cover their own costs (office supplies, license fees, insurance, law school debt); on top of that, we need to earn a living.

I am not an economist but it seems to me that this is a kind of “market failure” or “government failure.” where (1) there is a need (that is, the need for civil justice, which almost all of us must agree is vital social need), and (2) there is a supply of qualified labor (under-employed, trained, qualified professionals), but the minimum amount money required by the government’s justice system exceeds most citizens’ maximum ability to pay.

We are now seeing growing social unrest about social injustice and economic inequality in this country. When the doors of justice are shut tight for so many, should we be surprised?

[Post-script: Some readers might note and be puzzled by the fact that July pass rates of the Minnesota bar are much higher than February pass rates year after year. That is because the percentage of first-time exam takers is much higher in the July tests than in the February tests. Many more of the February test-takers have already failed the test once and so the February cohort, predictably has a lower overall passage rate.]

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