For most states, you must graduate from an ABA accredited law school to be eligible to take the bar exam at all. As Florida has been the main topic of conversation in the current discussion, I will use it as an example. Unless an applicant has been in practice for ten years in another jurisdiction, all applicants for the Florida bar must attend an ABA school. See Florida Rules of the Supreme Court Relating to Admissions to the Bar 4-13.1(a) & 4-13.2. The out-of-state practitioner rule seems to be new as passage rates in this category only exist since 2015.
Florida had a 68.2% success rate on the bar last July. See Florida Results. (The success rate for practitioners is just slightly better at 68.9%). All of the non-practitioners—and probably most of the practitioners, too—are graduates from ABA schools.
It is not possible for all ABA schools to achieve an 85% (or even 75%) pass rate in Florida. Despite what is said on A Prairie Home Companion, all of our children cannot be above average. The reality is that if one ABA school gets a passage rate that is above the state average, another one will be below it.
Further, the passage rate trend on the Florida bar raises an important question. As the table and chart of July pass rates below indicates, the pass rate on the Florida bar has been declining fairly dramatically over the last eight years:
Year Overall Practitioners
2009 80.0 —
2010 79.2 —
2011 80.1 —
2012 80.2 —
2013 77.2 —
2014 71.8 —
2015 68.9 69.6
2016 68.2 68.9
This declining passage rate can have two sources. One contributing factor, as much of the discussion about bar passage rates have assumed to be the sole factor, is that the quality of the people taking the bar exam has declined. The other possible factor that the discussion has ignored is that the bar exam itself has become more difficult.
There is some support for this second factor being important in the percentage of practitioners who pass. There is not a significant difference between that rate and the overall rate. All of the practitioners presumably graduated from law school at least a decade ago and before the current shrinkage of the law student applicant pool occurred. If the current admission practices of law schools is causing the bar passage decline, how do we explain that practitioners are doing no better?