2017 July California Bar

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esq
Posts: 587
Joined: Tue Jul 13, 2010 9:59 pm

Re: 2017 July California Bar

Postby esq » Fri Aug 11, 2017 2:37 pm

LockBox wrote:
esq wrote:
21157015576609 wrote:https://www.dailyjournal.com/articles/342590


I honestly think this judge has a fair point. Those seeking representation usually face high stakes situations and should be able to count on their attorney to properly understand how to obtain a default judgment, lay a foundation for evidence, argue and write effectively.

However, the big question I have is whether this is achieved by a higher bar passage score or whether law schools are failing students by not training them for the every day ins and outs of what they will experience in a courtroom. Because the bar tests on the same rules and theoretical applications that are taught in a law school, an attorney could very well (in my opinion) pass the bar with a score above 1500 and still not be familiar with the practical steps needed to, for e.g., lay a foundation in a courtroom, though they might understand the evidence code inside and out. Public arguments and writing formalities used in court motions, and presiding judge preferences, are also learned through practical experience and not through passing the bar exam.

To me this indicates that the issues this judge nitpicks on are due to a failure in legal training. There really isn't any way to really understand how the practical application of all the rules, theories, and laws work inside a courtroom until you are required to apply them in mock trials or in an actual courtroom. Until then, everything is just a concept.


The prevailing thinking has never been that law school prepares you for practice. Only to think like a lawyer. You learn about practice during your first few years. To this extent, the bar isn't meant to only allow those qualified to practice - many members who passed the bar become disbarred every month. What the bar is meant to do is weed out those individuals who may or may not clearly be suited to practice insofar as the bar has decided that the current cut score eliminates most who might make mistakes that would adversely impact their clients.


I can't disagree with you on that point, so you won't get an argument from me. My question is related to the problems that the LA Supreme Court judge raises in the linked Daily Journal article. The majority, if not all of his concerns, focus on advocacy traits that a lawyer learns from application of his/her conceptual knowledge in a courtroom. He then uses these concerns to state that, rather than lowering the CA Bar cut score, the inquiry should be into whether it should be raised--if anything. Since the bar exam tests conceptual, memorized, knowledge and not practical in-court application, I'm wondering if there is a logical connection to keeping the bar at its current level, or higher, and the gripes this judge has which are largely about mistakes observed in his courtroom. These mistakes involve the practical application of learned concepts, rules, etc.

maxmartin
Posts: 611
Joined: Tue Nov 29, 2011 5:41 pm

Re: 2017 July California Bar

Postby maxmartin » Fri Aug 11, 2017 3:02 pm

esq wrote:
LockBox wrote:
esq wrote:
21157015576609 wrote:https://www.dailyjournal.com/articles/342590


I honestly think this judge has a fair point. Those seeking representation usually face high stakes situations and should be able to count on their attorney to properly understand how to obtain a default judgment, lay a foundation for evidence, argue and write effectively.

However, the big question I have is whether this is achieved by a higher bar passage score or whether law schools are failing students by not training them for the every day ins and outs of what they will experience in a courtroom. Because the bar tests on the same rules and theoretical applications that are taught in a law school, an attorney could very well (in my opinion) pass the bar with a score above 1500 and still not be familiar with the practical steps needed to, for e.g., lay a foundation in a courtroom, though they might understand the evidence code inside and out. Public arguments and writing formalities used in court motions, and presiding judge preferences, are also learned through practical experience and not through passing the bar exam.

To me this indicates that the issues this judge nitpicks on are due to a failure in legal training. There really isn't any way to really understand how the practical application of all the rules, theories, and laws work inside a courtroom until you are required to apply them in mock trials or in an actual courtroom. Until then, everything is just a concept.


The prevailing thinking has never been that law school prepares you for practice. Only to think like a lawyer. You learn about practice during your first few years. To this extent, the bar isn't meant to only allow those qualified to practice - many members who passed the bar become disbarred every month. What the bar is meant to do is weed out those individuals who may or may not clearly be suited to practice insofar as the bar has decided that the current cut score eliminates most who might make mistakes that would adversely impact their clients.


I can't disagree with you on that point, so you won't get an argument from me. My question is related to the problems that the LA Supreme Court judge raises in the linked Daily Journal article. The majority, if not all of his concerns, focus on advocacy traits that a lawyer learns from application of his/her conceptual knowledge in a courtroom. He then uses these concerns to state that, rather than lowering the CA Bar cut score, the inquiry should be into whether it should be raised--if anything. Since the bar exam tests conceptual, memorized, knowledge and not practical in-court application, I'm wondering if there is a logical connection to keeping the bar at its current level, or higher, and the gripes this judge has which are largely about mistakes observed in his courtroom. These mistakes involve the practical application of learned concepts, rules, etc.


Yeah, raise the bar cut score because one obscure judge has some personal observations, what an argument! Maybe we should raise the cut score so only 10 people can pass every year. Where is the real data? From all the macro date I ever seen, the other states with lower cut score do not have any significant higher disbar rate than CA. That says something.
Last edited by maxmartin on Fri Aug 11, 2017 5:18 pm, edited 1 time in total.

Summerpony
Posts: 8
Joined: Fri Aug 11, 2017 3:41 pm

Re: 2017 July California Bar

Postby Summerpony » Fri Aug 11, 2017 3:44 pm

For those making public comments:
The Simkovic article below makes good points regarding California's absurdly anti-competitive cut score. 1414 is Not low enough to be fair.

-------------------------------------------------------------------------------------
Monday, July 31, 2017
Focus group of California lawyers defends tight restrictions on entry into the legal profession (Michael Simkovic)
By Michael Simkovic Share
California is an extreme outlier in the extent to which it restricts entry into the legal profession compared to other U.S. jurisdictions. Two examples of this include an unusually high minimum cut score on the bar exam and a refusal without exception to permit experienced licensed attorneys from other jurisdictions to be admitted without re-examination.

California lawyers are relatively highly paid, and relatively few in number considering the size of the workforce in California. Restrictions on entry into the profession may help maintain this status quo. There are serious questions about whether this protects consumers, or is economic protectionism. Economic protectionism could benefit California lawyers, but it would likely also harm consumers of legal services by making legal services less available, more expensive and perhaps lower in quality because of reduced competition. Protectionism would also reduce economic opportunity for those denied the option of practicing law in California, much as immigration restrictions deny economic opportunity to those excluded from high-income countries.

The Supreme Court of California, concerned about the anti-trust implications of a licensed profession establishing criteria for entry, instructed the California State Bar to prepare recommendations on revising the California bar cut score.

Stephen Diamond reports that the California State Bar recommended that its bar examination should either stay the same or be made even harder.

The California Bar arrived at this conclusion by asking a panel of California lawyers how hard the bar exam should be. To be more specific, panelists read essays, categorized them into good, medium and bad piles, and, with the assistance of a psychologist who specializes in standardized testing, used this categorization to back-out an extremely high recommended bar passage score.

Finding that people with high multiple choice scores also tend to write better essays is about as surprising as finding that cars that Consumer Reports rates highly are also often highly rated by J.D. Power. It's also about as relevant to the policy decision facing the California Supreme Court about minimum competence to practice law.

The relevant question for restricting entry into the legal profession is not whether good (and presumably expensive) lawyers are better than mediocre (and presumably more affordable) lawyers. Rather, the relevant question is when consumers should be able to decide for themselves whether to spend more for higher quality services or to save money and accept services of lower quality. Most people will agree that a new Lexus is likely a better, more reliable and safer car than a similar-sized used Toyota. But this difference in quality does not mean that the government should banish used Toyotas from the roads and permit to drive only those who are willing and able to buy a new Lexus.

Is there evidence that a bar examinee who would be permitted to practice law in Washington D.C. or New York or Boston or Chicago, but not in California, would routinely make such a mess of clients' affairs that California clients should not even have the option to hire such a lawyer?

Is there evidence that consumers of legal services cannot tell the difference between a good lawyer and a dangerously bad one?

If these problems exist, could they be addressed by simply requiring lawyers to disclose information to prospective clients that would enable those clients to judge lawyer quality for themselves?

The California Bar has not yet seriously addressed these questions in arriving at its recommendations.

The California Bar also reported that other states have sometimes recommended increases or decreases to their own bar examination cut score. But these states are almost all starting with much lower bar cut scores than California's baseline. It appears that few if any other states recommended bar examination cut scores as high as California's.

Summerpony
Posts: 8
Joined: Fri Aug 11, 2017 3:41 pm

Re: 2017 July California Bar

Postby Summerpony » Fri Aug 11, 2017 3:53 pm

It’s hardly a giant surprise that a study that the bar commissioned and whose terms and approach they defined has managed to come out with a recommendation that supports almost precisely what they’ve been doing without evidence for the past 30 years.

— Jennifer Mnookin, law dean at UCLA, commenting on a study prepared for the California State Bar by educational consulting firm ACS Ventures, on the state’s contentiously high bar exam minimum passing score. A California passing score has been 144 — the second highest in the country — and amid the controversy the state bar commissioned a study to assess the cut score. Without making any definitive recommendations, the study found a 144 cut score was acceptable and that a lower score of 141 was also appropriate. The study has done little to quell the complaints directed towards the California State Bar.

Summerpony wrote:For those making public comments:
The Simkovic article below makes good points regarding California's absurdly anti-competitive cut score. 1414 is Not low enough to be fair.

-------------------------------------------------------------------------------------
Monday, July 31, 2017
Focus group of California lawyers defends tight restrictions on entry into the legal profession (Michael Simkovic)
By Michael Simkovic Share
California is an extreme outlier in the extent to which it restricts entry into the legal profession compared to other U.S. jurisdictions. Two examples of this include an unusually high minimum cut score on the bar exam and a refusal without exception to permit experienced licensed attorneys from other jurisdictions to be admitted without re-examination.

California lawyers are relatively highly paid, and relatively few in number considering the size of the workforce in California. Restrictions on entry into the profession may help maintain this status quo. There are serious questions about whether this protects consumers, or is economic protectionism. Economic protectionism could benefit California lawyers, but it would likely also harm consumers of legal services by making legal services less available, more expensive and perhaps lower in quality because of reduced competition. Protectionism would also reduce economic opportunity for those denied the option of practicing law in California, much as immigration restrictions deny economic opportunity to those excluded from high-income countries.

The Supreme Court of California, concerned about the anti-trust implications of a licensed profession establishing criteria for entry, instructed the California State Bar to prepare recommendations on revising the California bar cut score.

Stephen Diamond reports that the California State Bar recommended that its bar examination should either stay the same or be made even harder.

The California Bar arrived at this conclusion by asking a panel of California lawyers how hard the bar exam should be. To be more specific, panelists read essays, categorized them into good, medium and bad piles, and, with the assistance of a psychologist who specializes in standardized testing, used this categorization to back-out an extremely high recommended bar passage score.

Finding that people with high multiple choice scores also tend to write better essays is about as surprising as finding that cars that Consumer Reports rates highly are also often highly rated by J.D. Power. It's also about as relevant to the policy decision facing the California Supreme Court about minimum competence to practice law.

The relevant question for restricting entry into the legal profession is not whether good (and presumably expensive) lawyers are better than mediocre (and presumably more affordable) lawyers. Rather, the relevant question is when consumers should be able to decide for themselves whether to spend more for higher quality services or to save money and accept services of lower quality. Most people will agree that a new Lexus is likely a better, more reliable and safer car than a similar-sized used Toyota. But this difference in quality does not mean that the government should banish used Toyotas from the roads and permit to drive only those who are willing and able to buy a new Lexus.

Is there evidence that a bar examinee who would be permitted to practice law in Washington D.C. or New York or Boston or Chicago, but not in California, would routinely make such a mess of clients' affairs that California clients should not even have the option to hire such a lawyer?

Is there evidence that consumers of legal services cannot tell the difference between a good lawyer and a dangerously bad one?

If these problems exist, could they be addressed by simply requiring lawyers to disclose information to prospective clients that would enable those clients to judge lawyer quality for themselves?

The California Bar has not yet seriously addressed these questions in arriving at its recommendations.

The California Bar also reported that other states have sometimes recommended increases or decreases to their own bar examination cut score. But these states are almost all starting with much lower bar cut scores than California's baseline. It appears that few if any other states recommended bar examination cut scores as high as California's.

maxmartin
Posts: 611
Joined: Tue Nov 29, 2011 5:41 pm

Re: 2017 July California Bar

Postby maxmartin » Fri Aug 11, 2017 5:13 pm

Is the public comment to the bar or to the court?

Summerpony
Posts: 8
Joined: Fri Aug 11, 2017 3:41 pm

Re: 2017 July California Bar

Postby Summerpony » Fri Aug 11, 2017 5:19 pm


barjamie8
Posts: 35
Joined: Thu Nov 06, 2014 1:56 am

Re: 2017 July California Bar

Postby barjamie8 » Fri Aug 11, 2017 7:53 pm

Summerpony wrote:For those making public comments:
The Simkovic article below makes good points regarding California's absurdly anti-competitive cut score. 1414 is Not low enough to be fair.

-------------------------------------------------------------------------------------
Monday, July 31, 2017
Focus group of California lawyers defends tight restrictions on entry into the legal profession (Michael Simkovic)
By Michael Simkovic Share
California is an extreme outlier in the extent to which it restricts entry into the legal profession compared to other U.S. jurisdictions. Two examples of this include an unusually high minimum cut score on the bar exam and a refusal without exception to permit experienced licensed attorneys from other jurisdictions to be admitted without re-examination.

California lawyers are relatively highly paid, and relatively few in number considering the size of the workforce in California. Restrictions on entry into the profession may help maintain this status quo. There are serious questions about whether this protects consumers, or is economic protectionism. Economic protectionism could benefit California lawyers, but it would likely also harm consumers of legal services by making legal services less available, more expensive and perhaps lower in quality because of reduced competition. Protectionism would also reduce economic opportunity for those denied the option of practicing law in California, much as immigration restrictions deny economic opportunity to those excluded from high-income countries.

The Supreme Court of California, concerned about the anti-trust implications of a licensed profession establishing criteria for entry, instructed the California State Bar to prepare recommendations on revising the California bar cut score.

Stephen Diamond reports that the California State Bar recommended that its bar examination should either stay the same or be made even harder.

The California Bar arrived at this conclusion by asking a panel of California lawyers how hard the bar exam should be. To be more specific, panelists read essays, categorized them into good, medium and bad piles, and, with the assistance of a psychologist who specializes in standardized testing, used this categorization to back-out an extremely high recommended bar passage score.

Finding that people with high multiple choice scores also tend to write better essays is about as surprising as finding that cars that Consumer Reports rates highly are also often highly rated by J.D. Power. It's also about as relevant to the policy decision facing the California Supreme Court about minimum competence to practice law.

The relevant question for restricting entry into the legal profession is not whether good (and presumably expensive) lawyers are better than mediocre (and presumably more affordable) lawyers. Rather, the relevant question is when consumers should be able to decide for themselves whether to spend more for higher quality services or to save money and accept services of lower quality. Most people will agree that a new Lexus is likely a better, more reliable and safer car than a similar-sized used Toyota. But this difference in quality does not mean that the government should banish used Toyotas from the roads and permit to drive only those who are willing and able to buy a new Lexus.

Is there evidence that a bar examinee who would be permitted to practice law in Washington D.C. or New York or Boston or Chicago, but not in California, would routinely make such a mess of clients' affairs that California clients should not even have the option to hire such a lawyer?

Is there evidence that consumers of legal services cannot tell the difference between a good lawyer and a dangerously bad one?

If these problems exist, could they be addressed by simply requiring lawyers to disclose information to prospective clients that would enable those clients to judge lawyer quality for themselves?

The California Bar has not yet seriously addressed these questions in arriving at its recommendations.

The California Bar also reported that other states have sometimes recommended increases or decreases to their own bar examination cut score. But these states are almost all starting with much lower bar cut scores than California's baseline. It appears that few if any other states recommended bar examination cut scores as high as California's.


The article lost all credibility with this statement "California lawyers are relatively highly paid, and relatively few in number considering the size of the workforce in California."

Think what you want about the bar, but most California lawyers are not "relatively highly paid." This is ESPECIALLY true considering the high cost of living here. Many lawyers make less than people with bachelor degrees. For most here, it is a declining profession pay-wise.

happybar
Posts: 10
Joined: Tue Jul 25, 2017 11:58 pm

Re: 2017 July California Bar

Postby happybar » Sat Aug 12, 2017 12:29 am

RCA88 wrote:I discussed it, because i thought it tends to show that his reasonable suspicion
Was based on on an unreasonable mistake - something the case in the library mentioned in dicta. I argued that the officer should have been more careful given that Davis is a pretty common last name, and that the search entailed an invasion into Davis' "home." But there were plenty of other ways to argue this point - Daviss was a lot shorter and weighed less, the fact that Davis's wife answered the door, whereas Davis's was much younger and travelled alone, etc.


Thanks RCA88, and last question (can't believe my mind still thinks about it but just spoke today with a friend who took the exam , something I regret): in the PT guidelines were we required to say something about a possible plea bargain or it was just arguing that evidence of drugs should be suppressed coz they were obtained in violation of 4th thus Davis should not be indicted in the charges the prosecution was planning on charging him for . My friend also mentioned the plea, and I don't remember that guideline phrase mentioned it so just wanted to make sure i got this right.

InterAlia1961
Posts: 151
Joined: Tue Feb 28, 2017 3:32 pm

Re: 2017 July California Bar

Postby InterAlia1961 » Sun Aug 13, 2017 6:37 pm

ManoftheHour wrote:
InterAlia1961 wrote:
ManoftheHour wrote:I could be wrong here, but to me that was totally a negligence question. Lots of proximate cause to discuss. The stuff about the alternative product was used to talk extensively about breach/duty/standard of care (B<LP shit). Custom and alt product are factors but not determinant. Idk like I said I could be wrong...

Edit: Aight I'm gonna stop reading this stuff. I left the exam feeling pretty good and now I'm starting to have doubts. Need to focus on the MBE tomorrow.


I discussed proximate cause at length. Is is foreseeable that a downed power line would ignite a piece of paper that would then be carried by the wind and burn someone's house down? Yes. I also argued SPL. It was obvious that was what the numbers were for. In order to prevail on a defective design claim, P must show there are no other economically feasible alternatives and the current design is favored by the risk/utility test. I can see where a brief discussion of ADA might have been beneficial, though.


I definitely agree that I should have addressed SL but then dismiss quickly in a small paragraph or two. The problem with a SPL claim is that it seems way too far of a stretch. In order for there to be a SPL claim, there needs to be a proper defendant (manufacturer, wholesaler, distributor, someone in the business of selling the product). Here, Defendant (the utilities company) is not a manufacturer, wholesaler, distributor, or even someone remotely in the business of selling the product. This is a pretty crucial element. What exactly was being injected into the stream of commerce? Nothing here is being sold or injected in the stream of commerce.

You would not sue a guy who used a product that injured someone under a strict liability claim. This dude had nothing to do with the design and did not inject it in the stream of commerce. This is basically the same thing. Alternative design here is irrelevant for the guy because he was not involved in the stream of commerce (didn't sell it, didn't design it, didn't distribute it). You could go after the company that produced it though. You could also sue the user under a negligence theory.

Furthermore, on the defective design claim, defendant (the utilities company) had nothing to do with the design. The numbers were used to show whether there was a breach of duty under the negligence claim. The utilities company had a duty to provide safe power lines to the residential community (RPP standard). Now whether that duty is breached or not is up for argument. The key question here is knowing that there is a safer wiring system existing and available, would a reasonable utilities company have used the new wiring system instead? This is ripe for a B>LP analysis. On one hand, there is this new safer alternative product that is out. The numbers from the research and studies shows that the new wiring system is definitely safer and would have probably prevented the fire. On the other hand, the new wires are expensive. Furthermore in D's favor, the facts indicate that most utility companies in the country still use the old ones. While "custom" isn't binding, it does show that the fact that most utility companies still use the old wiring system is favorable to D because it shows that perhaps D exercised a reasonable duty of care in implementing the old wiring system.


If I recall correctly, Plaintiff, the driver, sued both the Electric Co. and the Manufacturer of the pole. Wasn't there a third question about joint and several liability? Anyway, I'm through worrying or predicting. There's nothing to do but wait now.

LockBox
Posts: 373
Joined: Mon Jan 14, 2008 8:05 pm

Re: 2017 July California Bar

Postby LockBox » Mon Aug 14, 2017 12:32 pm

barjamie8 wrote:
Summerpony wrote:For those making public comments:
The Simkovic article below makes good points regarding California's absurdly anti-competitive cut score. 1414 is Not low enough to be fair.

-------------------------------------------------------------------------------------
Monday, July 31, 2017
Focus group of California lawyers defends tight restrictions on entry into the legal profession (Michael Simkovic)
By Michael Simkovic Share
California is an extreme outlier in the extent to which it restricts entry into the legal profession compared to other U.S. jurisdictions. Two examples of this include an unusually high minimum cut score on the bar exam and a refusal without exception to permit experienced licensed attorneys from other jurisdictions to be admitted without re-examination.

California lawyers are relatively highly paid, and relatively few in number considering the size of the workforce in California. Restrictions on entry into the profession may help maintain this status quo. There are serious questions about whether this protects consumers, or is economic protectionism. Economic protectionism could benefit California lawyers, but it would likely also harm consumers of legal services by making legal services less available, more expensive and perhaps lower in quality because of reduced competition. Protectionism would also reduce economic opportunity for those denied the option of practicing law in California, much as immigration restrictions deny economic opportunity to those excluded from high-income countries.

The Supreme Court of California, concerned about the anti-trust implications of a licensed profession establishing criteria for entry, instructed the California State Bar to prepare recommendations on revising the California bar cut score.

Stephen Diamond reports that the California State Bar recommended that its bar examination should either stay the same or be made even harder.

The California Bar arrived at this conclusion by asking a panel of California lawyers how hard the bar exam should be. To be more specific, panelists read essays, categorized them into good, medium and bad piles, and, with the assistance of a psychologist who specializes in standardized testing, used this categorization to back-out an extremely high recommended bar passage score.

Finding that people with high multiple choice scores also tend to write better essays is about as surprising as finding that cars that Consumer Reports rates highly are also often highly rated by J.D. Power. It's also about as relevant to the policy decision facing the California Supreme Court about minimum competence to practice law.

The relevant question for restricting entry into the legal profession is not whether good (and presumably expensive) lawyers are better than mediocre (and presumably more affordable) lawyers. Rather, the relevant question is when consumers should be able to decide for themselves whether to spend more for higher quality services or to save money and accept services of lower quality. Most people will agree that a new Lexus is likely a better, more reliable and safer car than a similar-sized used Toyota. But this difference in quality does not mean that the government should banish used Toyotas from the roads and permit to drive only those who are willing and able to buy a new Lexus.

Is there evidence that a bar examinee who would be permitted to practice law in Washington D.C. or New York or Boston or Chicago, but not in California, would routinely make such a mess of clients' affairs that California clients should not even have the option to hire such a lawyer?

Is there evidence that consumers of legal services cannot tell the difference between a good lawyer and a dangerously bad one?

If these problems exist, could they be addressed by simply requiring lawyers to disclose information to prospective clients that would enable those clients to judge lawyer quality for themselves?

The California Bar has not yet seriously addressed these questions in arriving at its recommendations.

The California Bar also reported that other states have sometimes recommended increases or decreases to their own bar examination cut score. But these states are almost all starting with much lower bar cut scores than California's baseline. It appears that few if any other states recommended bar examination cut scores as high as California's.


The article lost all credibility with this statement "California lawyers are relatively highly paid, and relatively few in number considering the size of the workforce in California."

Think what you want about the bar, but most California lawyers are not "relatively highly paid." This is ESPECIALLY true considering the high cost of living here. Many lawyers make less than people with bachelor degrees. For most here, it is a declining profession pay-wise.


https://money.usnews.com/careers/best-j ... yer/salary

After a cursory google search, it appears that the statement that you believe is not credible, seems to be, in fact, very credible. I still don't believe this supports an economic protectionism argument for keeping a high cut score, though.

Legallywoke
Posts: 13
Joined: Mon May 22, 2017 12:20 pm

Re: 2017 July California Bar

Postby Legallywoke » Mon Aug 14, 2017 3:46 pm

happybar wrote:
RCA88 wrote:I discussed it, because i thought it tends to show that his reasonable suspicion
Was based on on an unreasonable mistake - something the case in the library mentioned in dicta. I argued that the officer should have been more careful given that Davis is a pretty common last name, and that the search entailed an invasion into Davis' "home." But there were plenty of other ways to argue this point - Daviss was a lot shorter and weighed less, the fact that Davis's wife answered the door, whereas Davis's was much younger and travelled alone, etc.


Thanks RCA88, and last question (can't believe my mind still thinks about it but just spoke today with a friend who took the exam , something I regret): in the PT guidelines were we required to say something about a possible plea bargain or it was just arguing that evidence of drugs should be suppressed coz they were obtained in violation of 4th thus Davis should not be indicted in the charges the prosecution was planning on charging him for . My friend also mentioned the plea, and I don't remember that guideline phrase mentioned it so just wanted to make sure i got this right.


From what I vaguely recall I believe the assignment stated that the client wanted to plea to a misdemeanor rather than a felony for the drug offensive and we needed to argue to the prosecutor that the lesser offense (misdemeanor) was more appropriate based on the fact that the search was unreasonable under the 4th Amendment anyway. Again, I could be totally off here. Does anyone recall how they structured or outlines their answer? I know mine was ok the short end since we only had 45 mins to write. Any thoughts?

Legallywoke
Posts: 13
Joined: Mon May 22, 2017 12:20 pm

Re: 2017 July California Bar

Postby Legallywoke » Mon Aug 14, 2017 4:06 pm

InterAlia1961 wrote:
ManoftheHour wrote:
InterAlia1961 wrote:
ManoftheHour wrote:I could be wrong here, but to me that was totally a negligence question. Lots of proximate cause to discuss. The stuff about the alternative product was used to talk extensively about breach/duty/standard of care (B<LP shit). Custom and alt product are factors but not determinant. Idk like I said I could be wrong...

Edit: Aight I'm gonna stop reading this stuff. I left the exam feeling pretty good and now I'm starting to have doubts. Need to focus on the MBE tomorrow.


I discussed proximate cause at length. Is is foreseeable that a downed power line would ignite a piece of paper that would then be carried by the wind and burn someone's house down? Yes. I also argued SPL. It was obvious that was what the numbers were for. In order to prevail on a defective design claim, P must show there are no other economically feasible alternatives and the current design is favored by the risk/utility test. I can see where a brief discussion of ADA might have been beneficial, though.


I definitely agree that I should have addressed SL but then dismiss quickly in a small paragraph or two. The problem with a SPL claim is that it seems way too far of a stretch. In order for there to be a SPL claim, there needs to be a proper defendant (manufacturer, wholesaler, distributor, someone in the business of selling the product). Here, Defendant (the utilities company) is not a manufacturer, wholesaler, distributor, or even someone remotely in the business of selling the product. This is a pretty crucial element. What exactly was being injected into the stream of commerce? Nothing here is being sold or injected in the stream of commerce.

You would not sue a guy who used a product that injured someone under a strict liability claim. This dude had nothing to do with the design and did not inject it in the stream of commerce. This is basically the same thing. Alternative design here is irrelevant for the guy because he was not involved in the stream of commerce (didn't sell it, didn't design it, didn't distribute it). You could go after the company that produced it though. You could also sue the user under a negligence theory.

Furthermore, on the defective design claim, defendant (the utilities company) had nothing to do with the design. The numbers were used to show whether there was a breach of duty under the negligence claim. The utilities company had a duty to provide safe power lines to the residential community (RPP standard). Now whether that duty is breached or not is up for argument. The key question here is knowing that there is a safer wiring system existing and available, would a reasonable utilities company have used the new wiring system instead? This is ripe for a B>LP analysis. On one hand, there is this new safer alternative product that is out. The numbers from the research and studies shows that the new wiring system is definitely safer and would have probably prevented the fire. On the other hand, the new wires are expensive. Furthermore in D's favor, the facts indicate that most utility companies in the country still use the old ones. While "custom" isn't binding, it does show that the fact that most utility companies still use the old wiring system is favorable to D because it shows that perhaps D exercised a reasonable duty of care in implementing the old wiring system.


If I recall correctly, Plaintiff, the driver, sued both the Electric Co. and the Manufacturer of the pole. Wasn't there a third question about joint and several liability? Anyway, I'm through worrying or predicting. There's nothing to do but wait now.


I think the question had two parts, where Plaintiff (homeowner) sued (1) the driver who ran into the pole (under negligence), and (2) the utility co (under some strict liability analysis--either ultra hazardous activity, or SPL, or both).

I don't remember a 3rd part calling for joint and several liability (my memory is fuzzy and I could be wrong). However, i think Jt/several liability was a big party of the analysis anyway. I think the question asked for homeowner's causes of action against each defendant, each D's defenses to homeowner, and the likely outcome.

Slickrick90
Posts: 26
Joined: Sat Nov 19, 2016 11:37 am

Re: 2017 July California Bar

Postby Slickrick90 » Mon Aug 14, 2017 4:26 pm

It isn't just the high cut score that makes it hard. What also makes it hard is the fact that in other states, essays are 30-45 mins each. You don't have as much time to write and the graders grade easier and expect less from you. In California, the graders are a lot more strict.

User avatar
esq
Posts: 587
Joined: Tue Jul 13, 2010 9:59 pm

Re: 2017 July California Bar

Postby esq » Mon Aug 14, 2017 5:49 pm

Legallywoke wrote:
InterAlia1961 wrote:
ManoftheHour wrote:
InterAlia1961 wrote:
ManoftheHour wrote:I could be wrong here, but to me that was totally a negligence question. Lots of proximate cause to discuss. The stuff about the alternative product was used to talk extensively about breach/duty/standard of care (B<LP shit). Custom and alt product are factors but not determinant. Idk like I said I could be wrong...

Edit: Aight I'm gonna stop reading this stuff. I left the exam feeling pretty good and now I'm starting to have doubts. Need to focus on the MBE tomorrow.


I discussed proximate cause at length. Is is foreseeable that a downed power line would ignite a piece of paper that would then be carried by the wind and burn someone's house down? Yes. I also argued SPL. It was obvious that was what the numbers were for. In order to prevail on a defective design claim, P must show there are no other economically feasible alternatives and the current design is favored by the risk/utility test. I can see where a brief discussion of ADA might have been beneficial, though.


I definitely agree that I should have addressed SL but then dismiss quickly in a small paragraph or two. The problem with a SPL claim is that it seems way too far of a stretch. In order for there to be a SPL claim, there needs to be a proper defendant (manufacturer, wholesaler, distributor, someone in the business of selling the product). Here, Defendant (the utilities company) is not a manufacturer, wholesaler, distributor, or even someone remotely in the business of selling the product. This is a pretty crucial element. What exactly was being injected into the stream of commerce? Nothing here is being sold or injected in the stream of commerce.

You would not sue a guy who used a product that injured someone under a strict liability claim. This dude had nothing to do with the design and did not inject it in the stream of commerce. This is basically the same thing. Alternative design here is irrelevant for the guy because he was not involved in the stream of commerce (didn't sell it, didn't design it, didn't distribute it). You could go after the company that produced it though. You could also sue the user under a negligence theory.

Furthermore, on the defective design claim, defendant (the utilities company) had nothing to do with the design. The numbers were used to show whether there was a breach of duty under the negligence claim. The utilities company had a duty to provide safe power lines to the residential community (RPP standard). Now whether that duty is breached or not is up for argument. The key question here is knowing that there is a safer wiring system existing and available, would a reasonable utilities company have used the new wiring system instead? This is ripe for a B>LP analysis. On one hand, there is this new safer alternative product that is out. The numbers from the research and studies shows that the new wiring system is definitely safer and would have probably prevented the fire. On the other hand, the new wires are expensive. Furthermore in D's favor, the facts indicate that most utility companies in the country still use the old ones. While "custom" isn't binding, it does show that the fact that most utility companies still use the old wiring system is favorable to D because it shows that perhaps D exercised a reasonable duty of care in implementing the old wiring system.


If I recall correctly, Plaintiff, the driver, sued both the Electric Co. and the Manufacturer of the pole. Wasn't there a third question about joint and several liability? Anyway, I'm through worrying or predicting. There's nothing to do but wait now.


I think the question had two parts, where Plaintiff (homeowner) sued (1) the driver who ran into the pole (under negligence), and (2) the utility co (under some strict liability analysis--either ultra hazardous activity, or SPL, or both).

I don't remember a 3rd part calling for joint and several liability (my memory is fuzzy and I could be wrong). However, i think Jt/several liability was a big party of the analysis anyway. I think the question asked for homeowner's causes of action against each defendant, each D's defenses to homeowner, and the likely outcome.


Usually there is a question about how the P can expect to recover. The CA Bar Exam asks us to assume pure comparative negligence, on a joint and several liability basis (i.e., the P can claim the full amount against either D, or jointly if they choose to, but if the P claims the full amount against one D separately it is the Ds problem to later seek contribution from the other tortfeasor--this policy is to ensure that the P is able fully recover and not worry about who was more or less liable).

Also, was this utility company selling some product (the pole) to the public for commercial use? And did this product then harm someone because of a defect? If not, how the hell does strict products liability apply?
Last edited by esq on Mon Aug 14, 2017 9:43 pm, edited 1 time in total.

jman77
Posts: 573
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Re: 2017 July California Bar

Postby jman77 » Mon Aug 14, 2017 6:04 pm

esq wrote:
Legallywoke wrote:
InterAlia1961 wrote:
ManoftheHour wrote:
InterAlia1961 wrote:
ManoftheHour wrote:I could be wrong here, but to me that was totally a negligence question. Lots of proximate cause to discuss. The stuff about the alternative product was used to talk extensively about breach/duty/standard of care (B<LP shit). Custom and alt product are factors but not determinant. Idk like I said I could be wrong...

Edit: Aight I'm gonna stop reading this stuff. I left the exam feeling pretty good and now I'm starting to have doubts. Need to focus on the MBE tomorrow.


I discussed proximate cause at length. Is is foreseeable that a downed power line would ignite a piece of paper that would then be carried by the wind and burn someone's house down? Yes. I also argued SPL. It was obvious that was what the numbers were for. In order to prevail on a defective design claim, P must show there are no other economically feasible alternatives and the current design is favored by the risk/utility test. I can see where a brief discussion of ADA might have been beneficial, though.


I definitely agree that I should have addressed SL but then dismiss quickly in a small paragraph or two. The problem with a SPL claim is that it seems way too far of a stretch. In order for there to be a SPL claim, there needs to be a proper defendant (manufacturer, wholesaler, distributor, someone in the business of selling the product). Here, Defendant (the utilities company) is not a manufacturer, wholesaler, distributor, or even someone remotely in the business of selling the product. This is a pretty crucial element. What exactly was being injected into the stream of commerce? Nothing here is being sold or injected in the stream of commerce.

You would not sue a guy who used a product that injured someone under a strict liability claim. This dude had nothing to do with the design and did not inject it in the stream of commerce. This is basically the same thing. Alternative design here is irrelevant for the guy because he was not involved in the stream of commerce (didn't sell it, didn't design it, didn't distribute it). You could go after the company that produced it though. You could also sue the user under a negligence theory.

Furthermore, on the defective design claim, defendant (the utilities company) had nothing to do with the design. The numbers were used to show whether there was a breach of duty under the negligence claim. The utilities company had a duty to provide safe power lines to the residential community (RPP standard). Now whether that duty is breached or not is up for argument. The key question here is knowing that there is a safer wiring system existing and available, would a reasonable utilities company have used the new wiring system instead? This is ripe for a B>LP analysis. On one hand, there is this new safer alternative product that is out. The numbers from the research and studies shows that the new wiring system is definitely safer and would have probably prevented the fire. On the other hand, the new wires are expensive. Furthermore in D's favor, the facts indicate that most utility companies in the country still use the old ones. While "custom" isn't binding, it does show that the fact that most utility companies still use the old wiring system is favorable to D because it shows that perhaps D exercised a reasonable duty of care in implementing the old wiring system.


If I recall correctly, Plaintiff, the driver, sued both the Electric Co. and the Manufacturer of the pole. Wasn't there a third question about joint and several liability? Anyway, I'm through worrying or predicting. There's nothing to do but wait now.


I think the question had two parts, where Plaintiff (homeowner) sued (1) the driver who ran into the pole (under negligence), and (2) the utility co (under some strict liability analysis--either ultra hazardous activity, or SPL, or both).

I don't remember a 3rd part calling for joint and several liability (my memory is fuzzy and I could be wrong). However, i think Jt/several liability was a big party of the analysis anyway. I think the question asked for homeowner's causes of action against each defendant, each D's defenses to homeowner, and the likely outcome.


Usually there is a question about how the P can expect to recover. The CA Bar Exam asks us to assume pure comparative negligence, on a joint and several liability basis (i.e., the D can claim the full amount against either D, or jointly if they choose to, but if the P claims the full amount against one D separately it is the Ds problem to later seek contribution from the other tortfeasor--this policy is to ensure that the P is able fully recover and not worry about who was more or less liable).

Also, was this utility company selling some product (the pole) to the public for commercial use? And did this product then harm someone because of a defect? If not, how the hell does strict products liability apply?


Here's how I remember the questions (paraphrased):

1) What are P's reasonable claims against the driver and what are driver's reasonable defenses?
2) What are P's reasonable claims against the utility company and what are the utility company's reasonable defenses?
3) Assuming the jury/court finds in favor of P, how should the damages be allocated (it did not specify what type of comparative negligence was in effect and I don't remember the questions stating that the events happened in CA, but I could be wrong)?

My response to no. 1 discussed negligence, including a short discussion and dismissal of negligence per se because the statute did not intend to prevent the harm that occurred and P was not included in class of persons intended to be protected.

My response to no. 2 discussed and dismissed both SPL and ultra-hazardous activity because the utility company was not a merchant of the electrical system and did not place it into the commerce stream and the activity was not ultra-hazardous (not uncommon in the geographic area, social utility not outweighed by inherent danger, etc.). I ended up analyzing from an ordinary negligence perspective same as no. 1. For both 1 and 2, I said no proximate causation unless court adopted the "zone of danger" doctrine (I blacked out and did not remember which one was Andrews and which one was Cardozo).

My response to no. 3 assumed a pure comparative negligence jurisdiction and discussed joint tortfeasor/j&s liability with right to contribution. On hindsight, I probably should have discussed allocation assuming a partial comparative negligence jurisdiction as well.

jman77
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Re: 2017 July California Bar

Postby jman77 » Mon Aug 14, 2017 6:12 pm

Legallywoke wrote:
happybar wrote:
RCA88 wrote:I discussed it, because i thought it tends to show that his reasonable suspicion
Was based on on an unreasonable mistake - something the case in the library mentioned in dicta. I argued that the officer should have been more careful given that Davis is a pretty common last name, and that the search entailed an invasion into Davis' "home." But there were plenty of other ways to argue this point - Daviss was a lot shorter and weighed less, the fact that Davis's wife answered the door, whereas Davis's was much younger and travelled alone, etc.


Thanks RCA88, and last question (can't believe my mind still thinks about it but just spoke today with a friend who took the exam , something I regret): in the PT guidelines were we required to say something about a possible plea bargain or it was just arguing that evidence of drugs should be suppressed coz they were obtained in violation of 4th thus Davis should not be indicted in the charges the prosecution was planning on charging him for . My friend also mentioned the plea, and I don't remember that guideline phrase mentioned it so just wanted to make sure i got this right.


From what I vaguely recall I believe the assignment stated that the client wanted to plea to a misdemeanor rather than a felony for the drug offensive and we needed to argue to the prosecutor that the lesser offense (misdemeanor) was more appropriate based on the fact that the search was unreasonable under the 4th Amendment anyway. Again, I could be totally off here. Does anyone recall how they structured or outlines their answer? I know mine was ok the short end since we only had 45 mins to write. Any thoughts?


This is what I recall as well. We were supposed to convey that our client was willing to accept a plea for a misdemeanor (something to do with resisting arrest or hitting the arresting officer -- memory is not all that clear now) in exchange for the prosecutor not bringing a felony charge for drug possession and argue that the evidence for the felony charge would be suppressed anyway because of the 4th amendment rights violation.

happybar
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Re: 2017 July California Bar

Postby happybar » Mon Aug 14, 2017 10:38 pm

jman77 wrote:
Legallywoke wrote:
happybar wrote:
RCA88 wrote:I discussed it, because i thought it tends to show that his reasonable suspicion
Was based on on an unreasonable mistake - something the case in the library mentioned in dicta. I argued that the officer should have been more careful given that Davis is a pretty common last name, and that the search entailed an invasion into Davis' "home." But there were plenty of other ways to argue this point - Daviss was a lot shorter and weighed less, the fact that Davis's wife answered the door, whereas Davis's was much younger and travelled alone, etc.


Thanks RCA88, and last question (can't believe my mind still thinks about it but just spoke today with a friend who took the exam , something I regret): in the PT guidelines were we required to say something about a possible plea bargain or it was just arguing that evidence of drugs should be suppressed coz they were obtained in violation of 4th thus Davis should not be indicted in the charges the prosecution was planning on charging him for . My friend also mentioned the plea, and I don't remember that guideline phrase mentioned it so just wanted to make sure i got this right.


From what I vaguely recall I believe the assignment stated that the client wanted to plea to a misdemeanor rather than a felony for the drug offensive and we needed to argue to the prosecutor that the lesser offense (misdemeanor) was more appropriate based on the fact that the search was unreasonable under the 4th Amendment anyway. Again, I could be totally off here. Does anyone recall how they structured or outlines their answer? I know mine was ok the short end since we only had 45 mins to write. Any thoughts?


This is what I recall as well. We were supposed to convey that our client was willing to accept a plea for a misdemeanor (something to do with resisting arrest or hitting the arresting officer -- memory is not all that clear now) in exchange for the prosecutor not bringing a felony charge for drug possession and argue that the evidence for the felony charge would be suppressed anyway because of the 4th amendment rights violation.


Thanks guys. I think that in the beginning of the letter I copied verbatim the instruction (the gist of the argument), I just didn't remember (in retrospect ) anything about a plea. It might not have said plea but instead said indeed that the charge should be different (misdemeanor not drug possession). I guess it should be fine if I copied the instructions word-by-word.

InterAlia1961
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Re: 2017 July California Bar

Postby InterAlia1961 » Tue Aug 15, 2017 9:25 am

jman77 wrote:
Here's how I remember the questions (paraphrased):

1) What are P's reasonable claims against the driver and what are driver's reasonable defenses?
2) What are P's reasonable claims against the utility company and what are the utility company's reasonable defenses?
3) Assuming the jury/court finds in favor of P, how should the damages be allocated (it did not specify what type of comparative negligence was in effect and I don't remember the questions stating that the events happened in CA, but I could be wrong)?

My response to no. 1 discussed negligence, including a short discussion and dismissal of negligence per se because the statute did not intend to prevent the harm that occurred and P was not included in class of persons intended to be protected.

My response to no. 2 discussed and dismissed both SPL and ultra-hazardous activity because the utility company was not a merchant of the electrical system and did not place it into the commerce stream and the activity was not ultra-hazardous (not uncommon in the geographic area, social utility not outweighed by inherent danger, etc.). I ended up analyzing from an ordinary negligence perspective same as no. 1. For both 1 and 2, I said no proximate causation unless court adopted the "zone of danger" doctrine (I blacked out and did not remember which one was Andrews and which one was Cardozo).

My response to no. 3 assumed a pure comparative negligence jurisdiction and discussed joint tortfeasor/j&s liability with right to contribution. On hindsight, I probably should have discussed allocation assuming a partial comparative negligence jurisdiction as well.


That's how I remember it as well. I don't think I discussed ADA, but went into a lengthy discussion on proximate cause. Was is foreseeable that an spark from a downed electric line would ignite a piece of paper that would then blow onto a roof and set it on fire?

At any rate, I'm nowhere near as concerned about the torts essay as I am about essay two....whatever that was supposed to be. Ugh.

InterAlia1961
Posts: 151
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Re: 2017 July California Bar

Postby InterAlia1961 » Tue Aug 15, 2017 9:25 am

InterAlia1961 wrote:
jman77 wrote:
Here's how I remember the questions (paraphrased):

1) What are P's reasonable claims against the driver and what are driver's reasonable defenses?
2) What are P's reasonable claims against the utility company and what are the utility company's reasonable defenses?
3) Assuming the jury/court finds in favor of P, how should the damages be allocated (it did not specify what type of comparative negligence was in effect and I don't remember the questions stating that the events happened in CA, but I could be wrong)?

My response to no. 1 discussed negligence, including a short discussion and dismissal of negligence per se because the statute did not intend to prevent the harm that occurred and P was not included in class of persons intended to be protected.

My response to no. 2 discussed and dismissed both SPL and ultra-hazardous activity because the utility company was not a merchant of the electrical system and did not place it into the commerce stream and the activity was not ultra-hazardous (not uncommon in the geographic area, social utility not outweighed by inherent danger, etc.). I ended up analyzing from an ordinary negligence perspective same as no. 1. For both 1 and 2, I said no proximate causation unless court adopted the "zone of danger" doctrine (I blacked out and did not remember which one was Andrews and which one was Cardozo).

My response to no. 3 assumed a pure comparative negligence jurisdiction and discussed joint tortfeasor/j&s liability with right to contribution. On hindsight, I probably should have discussed allocation assuming a partial comparative negligence jurisdiction as well.


That's how I remember it as well. I don't think I discussed ADA, but went into a lengthy discussion on proximate cause. Was is foreseeable that a spark from a downed electric line would ignite a piece of paper that would then blow onto a roof and set it on fire?

At any rate, I'm nowhere near as concerned about the torts essay as I am about essay two....whatever that was supposed to be. Ugh.

gaddockteeg
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Re: 2017 July California Bar

Postby gaddockteeg » Tue Aug 22, 2017 3:51 pm

No updates on the new score cut yet, right?

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BulletTooth
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Re: 2017 July California Bar

Postby BulletTooth » Wed Aug 23, 2017 9:38 am

gaddockteeg wrote:No updates on the new score cut yet, right?


Google isn't showing anything new...

InterAlia1961
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Re: 2017 July California Bar

Postby InterAlia1961 » Wed Aug 23, 2017 11:37 am

It's my understanding that there will be a vote of some sort after the public comments close on August 25th. Then, sometime in Sept. the SC of CA will decide whether to lower the rate and if so, how it will be applied. Here's a link to the article: http://www.therecorder.com/id=1202795454049/Lawyers-and-Grads-Plea-Lower-the-Bar-Exam-Cut-Score?slreturn=20170723113428

User avatar
fear_no_evil
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Re: 2017 July California Bar

Postby fear_no_evil » Thu Aug 24, 2017 9:15 pm

Oregon just lowered its cut score from 284-276
California should be next

http://abovethelaw.com/2017/08/another- ... age-score/

InterAlia1961
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Re: 2017 July California Bar

Postby InterAlia1961 » Sun Aug 27, 2017 11:24 am

The essay questions have been posted. I'm going to look at essay number two first.

jman77
Posts: 573
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Re: 2017 July California Bar

Postby jman77 » Thu Aug 31, 2017 10:10 am

Update on the survey results RE: lowering cut score:

http://apps.calbar.ca.gov/cbe/docs/agen ... 002006.pdf

"In the report submitted to the Committee of Bar Examiners at its meeting on July 31, staff presented the Standard Setting Study report and, based on the study findings, recommended that the Committee consider two options: 1) maintain the current cut score of 1440, or 2)reduce the cut score to 1414 on an interim basis. After reviewing public comments submitted during the public comment period, staff now recommended that the Committee consider a third option: reducing the cut score to 1390.

Staff presents this third option for three reasons. First, in response to public comments urging further reduction to 1390; second, because 1390 falls within the confidence interval from the study; and third, in light of the analysis showing the positive impact on diversity and access that
a lower cut score may produce."

Also (you will need to register for free if you don't already have a subscription): http://www.therecorder.com/id=120279693 ... PassScore#

"A California State Bar committee stocked with law school deans recommended on Wednesday that the Supreme Court reduce the bar exam passing score from 144 to as low as 135.

The Law School Council endorsed setting the state’s passing score between 135 and 139, a lower range than the 141 to 144 that a previous bar-commissioned study had suggested. A 135 score is the most common pass score, or cut score, in other states. An Aug. 25 letter signed by 19 of 21 ABA-approved law school deans recommended the score be temporarily set between 133 and 139 while the bar completes its analysis.

Council members and others referred to findings from a report released by the bar on Wednesday that looked at what the passage rates would have been for exam-takers in July 2008 and July 2016 if the passing score, or cut score, had been lower. At 135, the success rate would have jumped dramatically, from 43 percent to 66 overall and by 114 percent for African-Americans and by 75 percent for Hispanic test-takers."

"A joint meeting of the bar’s committee of bar examiners and the committee on admissions and education meets Thursday to consider its own score recommendation. The bar’s board of trustees will make final recommendations to the state Supreme Court in September."




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