After the bar exam cycle ended in October, there was a lot of talk from applicants that the exam questions were unusually confusing and difficult. More importantly, applicants who had already taken and passed bar exams in other jurisdictions confirmed that this round of questions seemed disproportionately difficult to answer the confusing questions.
NCBE Honcho Judith Gundersen went public to state that these concerns were completely unfounded and the exam was no more difficult than previous exams. Perhaps that will all turn out to be true. But it's not a good start.
Called Idaho. 28 people took the exam, 8 passed it.
Passage rate for October: 29%
– Sean Silverman: Silverman Bar Exam Tutoring (@BarExamTutor) October 21, 2020
Idaho offers a small sample size, so we cannot make any general statements about the test yet. On the other hand, if a condition with a 70 to 80 percent pass rate drops to 29 percent – basically a reversal of its standard scores – it's safe to say that something was wrong with this test.
It could be the test conditions, of course, but with all the discussion about NCBE oversampling of the traditional screwball separator questions, this seems like a likely competitor.
Most people out there think that the bar exam is simple questions about discipline. That would make sense if the exam is really about testing the minimum level of competence. The driver test asks everyone how to deal with a yield tag, and if people know the answer they pass the test. But the bar exam doesn't work that way and justifies its own existence by failing people and using that fact to “prove” that there are dangerous lawyers without their exam. Bar exams achieve their "acceptable" error rates by sprinkling the test with a few crazy questions that more or less guarantee that someone will guess something wrong. You know these questions from your bar preparation:
a) A fruit
b) A car
c) One color
d) (b) and (c), but not (a)
e) None of the above
The unfathomable rationale for the “most correct” answer is never explained, and these questions stay like splinters in your brain for weeks after the test, until you realize that it is a deliberately bad question that was never meant to be yours Test minimum competency.
Applicants believe that many more of these questions were asked in the October cycle than in previous administrations. Without being able to analyze the test and review all of the results, this is just anecdotal at this point. But Idaho's experience here could be a canary in a coal mine.
Earlier: NCBE boss on the possibility of a serious assessment of the online bar debacle: "I think so … I don't know."
Joe Patrice is Senior Editor at Above the Law and co-moderator of Thinking Like A Lawyer. Feel free to email tips, questions, or comments. Follow him on Twitter if you're into law, politics, and a healthy dose of college sports news. Joe is also the managing director of RPN Executive Search.