With the recent release of bar results in many states, I have been obsessed of late about the sorry state of bar passage across the country–as well as specific bar passage issues relating to our graduates.  So, rather than (as I should and will do soon) responding to Steve Bradford's prompting post on the final JOBS Act Title III crowdfunding rules and the related proposals regarding Rules 147 and 504 under the Securities Act of 1933, as amended (as well as his follow-up post on the Rule 147 proposal), I have decided to focus on bar passage for my few minutes of air time this week.  Specifically, I want to begin to explore the question of what we can do, if anything, as business law professors to help more of our students succeed in passing the bar on the first attempt.

At a base level, this means we should endeavor to understand something about the reasons why our individual students fail the bar the first time around.  A lot has been written about the national trends (inconclusively, as a general rule).  And I am sure every law school is now analyzing the data on its own bar passage shortcomings.  But my experience teaching Barbri and my conversations with former students who have not passed the bar indicate a number of possible causes.  They include (and these are my descriptions based on that experience and those conversations, in no particular order):

• Failing to state the applicable legal rule(s) and apply them to the facts;
• Difficulty in processing legal reasoning in the time allotted;
• Nerves, sleep deprivation, illness and the like; and
• Engaging insufficiently with study materials and practice examinations.

Assuming that these anecdotal observations are, in fact, causes contributing to bar exam failures for at least some students, how might we be able to help?

It seems that the best prospects for us business law professors are those that involve more rigorous, and maybe more frequent, assessment of written expressions of legal reasoning.  The goal?  Ensuring that applicable legal rules are identified and used and that logical conclusions then are reached efficaciously.  In short, some students just may need more practice in rudimentary legal reasoning skills.  In addition, testing students on the written expression of legal analysis under time pressure may help them to sharpen their efficiency in expressing accurate and compete legal reasoning.

Business Associations and Securities Regulation can be super courses in which to reinforce these skills.  They have doctrinal rules that come from multiple sources; there are questions with clear answers and questions with ambiguous answers.  Business associations law is tested on the bar in every state I know of, so focusing on more efficient and effective legal reasoning in that course may have a double advantage.

The trouble is, both Business Associations and Securities Regulation already are very full courses in this post-Dodd-Frank era in which we live.  So, to make time to engage in more written legal analysis and assess those writings with the kind of care needed to help students understand where they are falling short, something else important must be displaced.  I have done this in both courses, but it's very difficult.  And the papers are not returned promptly . . . .  :>(

Of course,we can (and many of us do) advise students on being attentive to their mental, emotional, and physical health while studying for and otherwise preparing to take the bar exam.  But every year, at least one student seems to end up having a "bad day" on one or both of the bar exam testing days for one or more of these reasons.  This may just be unavoidable.  And our business law expertise is not uniquely useful here.

The tough nut to crack for me is the students that just do not put in the requisite effort.  Many admit it.  Although some may be lazy, others are just plain burned out.  They've lost their passion for the law.  This may happen for those without jobs more than for those who have jobs.  And (of course) for those without jobs, failing the bar makes it much harder initially to one.

There may be an answer here in the encouragement of law student thriving, which I referenced in my post last month on oral midterm exams.  Specifically, for us business law professors, advanced courses in business law may be the place to concentrate more closely on thriving.  Over the years, I have stepped back a bit and tried to find out more about what my students think they need and want from my advanced business law courses (e.g., Advanced Business Associations and my Corporate Finance planning and drafting seminar) based on their career plans.  The key is to teach the students what they need in a way that sustains their interest and engagement and continues to motivate them to and through their graduation and bar preparation.

Of course, we also can and should encourage rigor, health, and thriving through co-curricular and extra-curricular activities and in other contexts outside the classroom when possible.  Empirical work on the causes and possible solutions for bar exam failures is sorely needed.  However, I do not think we will find that there is any magic bullet here–any one thing or static, packaged group of things that will kick bar pass rates up on a sustained basis.  But I have to believe that by continuing to focus on foundational knowledge, skills, and the whole law student, we at least have a good start . . . .  And as business law professors, we can play a strong, if not leading, role.