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Last Saturday night, as I was preparing quarterly employment tax returns and thinking about being a CPA, I received numerous notifications that the California State Bar had told all of the bar exam applicants the subjects being tested on the upcoming exam. This was because they were accidentally disclosed to a select group of law school deans a few days before.
I thought the news was amusing and this site would cover the blunder first thing Monday morning. I figured that with the exam being only a few days away, the applicants could enjoy a few chuckles, narrow their studies, and forget about the rule against perpetuities and UCC 2-207.
But several things happened which I did not expect. First, a lot of people were angry. Now I get that for the exam takers, this news comes as a shock considering they spent a lot of time studying and a lot is at stake. And being stressed, I can understand being emotional about this. But even a number of practicing lawyers — who I assume have no dog in the fight — were outraged about this.
Second, this story became viral and was covered by many mainstream news sites. This was surprising because I didn’t think many in the legal profession and even less in the outside world would care about this. Perhaps they wanted to cover the story to reach as many examinees as possible, particularly those who turned off social media so they could study. Or maybe they thought their readers would get a kick out of a lawyer screw-up story. Or all of the above.
The State Bar tried to explain the situation but it seemed to add fuel to the fire rather than contain it. On social media and in private discussion, people brought up all kinds of theories. Some have noticed that almost all of the law schools who received this information are not accredited by the ABA. The one notable exception is UC Hastings, whose dean has recently been an outspoken critic of the bar exam and has spearheaded the effort to reduce the pass score. This made some think that the State Bar intentionally leaked this information to covertly boost those schools’ bar passage rates.
The attention has gotten so bad that it’s to the point where the California Supreme Court feels that a thorough investigation is necessary to protect the integrity of the examination.
Personally, I think this is overblown.
Is this unfair? Only to a very few. Now let’s accept the State Bar’s timeline of events. The subjects tested were accidentally sent to select law school deans sometime on Thursday, July 25th. When they discovered the error, the infamous email was sent to all of the exam takers on the night of July 27. To my knowledge, there have been no reports that any of those deans notified their students.
But let’s assume the deans forwarded the information to the students immediately after receiving it. This gives these students approximately an additional 50 hours with this inside information. If we deduct 10 hours per day for sleep, meals, and posting selfies with bar exam materials on Facebook, these students will have 30 hours of advantaged study time.
So will spending 30 hours specifically on the subjects that are guaranteed to be tested provide an unfair advantage over those who spent that time studying every subject that could be tested? Intuitively, that would seem to be the case. The lucky students can focus on those topics and have time left over to take MBE questions or do something else while everyone else tries to understand holographic wills. But in reality, this question is difficult to answer since everyone studies and learns differently and has unique life circumstances.
Let’s compare this to the hours spent studying overall. Considering that most people have studied for the exam since mid-May (or even earlier), 30 hours is a drop in the bucket. At this stage, most people will either know the material or they won’t. Most bar prep programs advise students to use the final stretch for practice exams and not for substantive studying. So the 30 hours of advantaged study time will likely be of minimal benefit.
Accordingly, any bump in the applicants’ scores as a result would likely be minimal. This means that if you did very badly on practice exams, the theoretical score boost probably won’t be enough to put you in passing territory.
Finally, there is the psychological shock (commonly known as “OMGWTF!!”) of knowing that someone else will have an unfair advantage. All I can suggest is to not let it get to you. It happens. Sometimes you benefit from inequity, most of the time you don’t. Know that if you studied properly, you will likely pass. If you don’t think you are ready, you can take this rare opportunity to withdraw and get a refund.
The California State Bar has some explaining to do and the Supreme Court’s investigation will determine whether this was an accident or a systemic conspiracy to dismantle the bar examination and allow Google Deepmind to practice law. But I think the effect of this leak will be very minimal and will only affect the few who are on the fringes. We’ll see if a class-action suit for negligence follows but I wouldn’t bet on it since torts is not being tested on the exam.
Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.