rcharter1978 wrote:I'll be VERY interested to see the pass rate for the 2 day CBX. Ostensibly, it should have a higher pass rate, since 50% of it is standardized.
I'll be just as interested to see how the results pan out, but I'm pessimistic about the two-day bar producing a higher pass rate. The CBE would have to consciously decide to give the license to a greater percentage of candidates. Maybe they will, and maybe they won't. But the results will have nothing to do with the comparative test-taking abilities of the class of 2017 or the length of the exam. It's about scaling the scores to get whatever results the CBE wants to get.
For instance, the MBE is touted as the only objective portion of the test. But even the MBE isn't truly objective. Suppose the CBE did away with the written portions of the bar and all you had to take was the MBE. Would the CBE set the bar at, say, 131 correct answers = passing, and then just wait to announce the results? Not a chance. Because when 85% of the takers got at least 131 correct answers, they'd say (privately), "The reason 85% passed was because this MBE was easier than previous MBEs. The passing standard needs to be reset to 145." Now they've eliminated a big chunk of takers, everybody who only got up to 144 answers correct, and the resulting 48% passing percentage looks more like the percentage that the CBE wants to admit into the clique. Maybe 48% is
still too many. Just increase the standard to 148 or 149. Now they've reached their magic pass rate of 45%. Perfect. You can just see the Committee rubbing their collective hands together and saying, "Yep. That's more like it. Good job, everyone."
Another way to scale the MBE is to assign point values for each problem — which in fact I believe they're already doing. Each problem gets weighted differently, and booyah! — even the MBE becomes subjective. Two takers each get 145 raw answers correct, but one of them gets more points than the other because he or she answered a greater number of harder questions. One passes, one fails.
If California shows a statistically significant increase in the passing percentage come this November, watch the CBE try to blame the previous lower pass rates on the fatigue caused by the three-day exam. But if they do, this claim should be viewed with skepticism. For one thing, most or all of my friends and I found that we performed better on the third day than the first day. Secondly, fatigue? Really? Over half of the young, healthy go-getters who made it through law school were just too damned tired to perform up to par on that horrible third day? I don't buy it. I didn't feel any worse on the third day than I did on the first. In fact, I felt better. Yes, it was a long test. I'm sure
some people had focus and stamina issues. I didn't. More importantly, few if any scores that I've ever seen posted on TLS reflect a remarkable drop in performance between the first and third day.
Arguably, the two-day exam should be even harder to pass. Candidates will have to do better on the MBE than before, and they'll have no room to flub an essay. On the three-day test, you might've blown one of the essays, but you could still get into the passing circle if you did well on the rest of the test. With the two-day test, takers are only going to get one crack at the writing. They'd better get it right. But again, scaling will take care of that.
Possibly, the CBE secretly wants to increase the pass rate. They know that they can't magically start passing 75% of takers without being accused of fiddling with the grading system. They'll want to save face after failing so many otherwise competent candidates in the past, including a lot of out-of-state lawyers who've been practicing law for 20 years. The two-day exam will be their opportunity to apply more fairness to the grading system. But if they increase the pass rate too much and too quickly, we who passed the three-day exam will charge the CBE with lowering their standards. And they know it. As such, I would not look for a significant increase in the pass rate this November.
