Hosted by Texas A&M Law, the Network for Justice, and the ABA Commission on Hispanic Legal Rights & Responsibilities

WEBINAR THIS WEEK, REGISTER TODAY:”Training Social Justice Lawyers Today”law and social justice graphicTexas A&M University School of Law, the Network for Justice, and the ABA Commission on Hispanic Legal Rights and Responsibilities present a FREE webinar series to examine pressing issues in social justice and the law, particularly as they impact the Latinx community. Please join us this Thursday to discuss “Training Social Justice Lawyers Today” on April 8, at 12:00 Noon Central.  Registersocial-justice-apr8-webinar-presenters2Presenters:• Carrie Bettinger-López, University of Miami School of Law Human Rights Clinic
• Denisse Córdova Montes, University of Miami School of Law Human Rights Clinic
• Deborah Archer, NYU School of Law
• Moderator: Louise Trubek, University of Wisconsin Law School
      Today’s world demands new approaches to social justice lawyering and new ways to train law students. We’ll discuss needed reform in scholarship, courses and clinical curriculum, and pedagogy. This webinar brings together law school teachers who are exploring how law and lawyers can contribute to the struggle for a more just society.

The Othering of the AAPI Community in America

THIS WEEK
Friday, 9 April 2021
Noon Pacific (3:00 Eastern)

This week’s SALT webinar will explore the long, contested relationship of the Asian, Asian American, and Pacific Islander communities in America from both an historical and contemporary lens.  

Please join a moderated discussion with Dean Sean Scott, Professor Vinay Harpalani and Professor Rose Cuison-Villazor on Friday, April 9, 12-1 pst (3-4 eastern).  Professor Harpalani’s scholarship focuses on the intersections between race, education, and law, as he explores the nuances of racial diversity and identity from various disciplinary perspectives.  Professor Rose Cuison-Villazor is an expert in immigration, citizenship, property law and race and the law.  

REGISTER TODAY

On Experiential Education

By: Luz Herrera

Allison Korn and Laila Hlass’ research, documented in Assessing the Experiential (R)evolution, offers a revealing  snapshot of how law schools have adapted to the ABA accreditation standards that requires six units of experiential education. The survey data provided by experiential educators from 126 law schools in 2018, provide the basis for a series of recommendations the authors make about what law schools should consider as they continue to grow and maintain their experiential program.  One of the many questions they ask us to consider is whether law schools are valuing teaching loads and providing sufficient status for experiential instructors to be sustainable?

The issue of status in experiential education has long been, and continues to be, a difficult subject for law schools, particularly for clinical faculty. In 2000, the AALS president formed a Committee on Good Practices Regarding Clinical Faculty that was charged with convincing law schools to integrate clinicians “as full participants in the legal education enterprise.” The committee, however, did not issue any recommendations or conclusions.  In 2005, the AALS Section on Clinical Legal Education took up the charge and appointed a Task Force on the Status of Clinicians and the Legal Academy to examine clinician status in U.S. law schools and “to recommend appropriate models for clinical appointments within the legal academy.” After reviewing CSALE survey data, the Task Force found various types of positions for clinicians but overall little parity between them and non-clinical faculty. After additional input at town halls and balancing the various views and realities of law schools, the Task Force set forth four core principles to guide status decisions:

“(1) Clinical education is a foundational and essential component of legal education;
(2) The legal academy and profession benefit from full inclusion of clinical faculty on all matters affecting the mission, function, and direction of law schools;
(3) There is no justification for creating hierarchies between clinical and non-clinical faculty; and
(4) The standards for hiring, retention, and promotion of clinical faculty must recognize and value the responsibilities and methodologies of clinical teaching.”

Ultimately the Task Force concluded that the gold standard that exemplified these principles requires clinical faculty to be full-time and placed on a unitary tenure track since tenure offers the greatest security of employment. The Task Force recommended that at least a core group of full-time clinical faculty should be on the unitary tenure track in order to have similar status that ultimately translates into academic freedom, in addition to full voting and governance rights. It urged law schools to develop standards for hiring, promotion and retention that account for the responsibilities and approaches that clinical faculty employ. The Task Force found that separate clinical tenure and long-term contract models were inferior because they usually provided less security and governance rights. It also urged that short term positions and fellowships be limited.

As clinicians advocated for greater status and inclusion in law schools, the American Law Deans Association advocated for greater control on hiring decisions. Control included resisting changes to accreditation standards that required security of position for clinical faculty. The history of the resistance is well documented by Peter Joy in his article, ABA Standard 405(c): Two Steps Forward and One Step Back for Legal Education. Ultimately the ABA Standards Review Committee amended ABA Standard 405(c) to require law schools to offer “full-time clinical faculty members a form of security of position reasonably similar to tenure.” Standard 405(c) permitted law schools to require clinical faculty to have similar responsibilities as other full-time faculty members but still allowed law schools to build experiential programs that included short-term appointments as long as the clinical program was primarily “staffed by full-time faculty members.”

Despite efforts to improve the status of clinical faculty and promote more experiential education, the growth of experiential education at ABA law schools seems to have only further cemented the legal profession’s caste system at most law schools. As Bob Kuehn’s recent blog post explains, the most recent survey data by the Center for the Study of Applied Legal Education (CSALE) shows a reduction in clinical tenure and tenure track positions in the last twelve years. Since 2010, clinic and externship hiring has largely been for contract positions and within the top ranked 25 law schools, tenure is almost non-existent for this group.

Former AALS President Dean Darby Dickerson recently penned a call to Abolish the Academic Caste System within legal education. In her essay she calls on law schools to acknowledge the contributions of non-tenure-track faculty by (1) converting faculty to tenure lines or develop processes that permits these non-tenure line faculty members to convert to tenure-line status; (2) calling on deans to equalize pay of non-tenure track faculty; and (3) shift the law school culture to show more respect for non-tenure line faculty as a way of prioritizing community and not upholding the caste system. She explains that non-tenure line faculty often contribute much more service and teaching than their colleagues. Dean Dickerson recognizes that often these faculty members are not provided equal voice in faculty governance or hiring, given similar faculty development support and the physical location of their offices are often removed from the law school’s core operation. She explains that salaries, job security, and respect for these faculty members are far less equitable. Dean Dickerson also acknowledges that not all non-tenure line faculty want tenure.

The  last CSALE Survey supports the view that “insufficient faculty status” is not the top priority for clinicians as it was listed by only 33 percent of the law school clinic respondents and 23 percent of field placement respondents as the major challenge to their program. However, other CSALE responses that ranked higher in the category of major challenges reflect a lack of institutional investment in clinical programs, overburdened clinical personnel, and few clinical faculty lines.

In their article, Korn and Hlass recommend that law schools ensure security status and value teaching loads of clinical faculty. They also encourage us to think about providing support and professional development for clinicians. What are our options when the trend is to hire more contract faculty and adjuncts to teach clinics, externships, and other experiential programs? How do we do that when many deans view the smaller class enrollment of clinics and externships as not equivalent to grading finals in a large doctrinal class? When our academic deans tell us that teaching first year classes is a good marketing opportunity to ensure greater visibility and therefore higher clinic enrollment? When externship expansion is preferred over clinic development because it is much cheaper to bring in adjuncts and convert staff positions to lecturer status?

Security of position is essential for any experiential dean to be effective. There are still many deans who are unwilling adopters of experiential education and who view it as too expensive an investment that does not further the academic integrity. Tenure, whether through the traditional route or a similar clinical track, should offer sufficient security of position to permit the head of an experiential program to fully participate in hiring decisions and to have disagreements with their deans – whether that is the main dean or the academic dean. An experiential dean often has to work with program directors and faculty with a variety of statuses. They must have enough status to feel safe telling a senior colleague with tenure that their seminar cannot be classified as experiential just because they want larger enrollment. However, the success of any experiential programs depends on the sustainability of all those who work in those programs, not just its leader.

It is critical to have a cohort of other faculty teaching in clinic with security of position who can help educate the larger community about the value of our work. Staff attorneys, adjuncts, and fellows are fungible. They can help build a program but there is little security for them. So it is important to be clear when advertising for soft money positions that their role will be different than other faculty as a result of funding and the existing caste system in legal education. To be clear, there are few jobs in our country that offer as much security of employment as some of our jobs. Still, when most around you have security and you don’t, it is something you notice, even if others insist it doesn’t make a difference. 

Having a cohort of clinicians with status at any institution helps facilitate the program’s growth and increases the likelihood of hiring for the program. Still, problems arise when unitary tenure track clinicians are given higher teaching loads than others. A tenure line professor on a unitary track is often expected to meet the same scholarship requirements as their colleagues who do not have to recruit clients, educate and train students to do client work, manage caseloads, and transition client matters at the end of the semester. While there are some schools that have little disparities between faculty on clinical tracks and those on traditional tenure lines, most have clear distinctions just by the virtue of a different title. It is important to provide full-time clinical faculty, regardless of their status, with a manageable workload and plenty of faculty development opportunities such as pre-tenure faculty leaves, summer coverage, administrative staff support, co-teaching opportunities, and staff attorneys.  It is also helpful to support clinical faculty, whether they have status or not, with continuing education and helping them increase their profile in the local and law school community.

Valuing teaching loads is much harder to offer a prescription for because all law schools have different standards and there is not sufficient understanding amongst our non-clinic colleagues of all that goes into teaching a clinic. Still, it is important to insist on fairly balanced teaching loads for clinicians and to provide newer faculty some time to develop their clinic before launching. It is hard to explain to colleagues who teach 50-80 student classes that a clinic of 8-10 students is more or equivalent work. But few of them would trade with us, if given the chance.  

SALT: Social Justice in Action

Social Justice in Action Webinar
SALT is proud to resume our webinar series, Social Justice in Action, featuring law school teachers sharing their expertise on how to educate the next generation of lawyers, support students of color, and dismantle structural inequality and racism in the United States.

This February 26 webinar will explore trauma informed lawyering and teaching. Experts in this field will share insight into how we better can support students, clients, and ourselves in the face of racism, other forms of discrimination, economic and resource inequality, experience with violence, health and housing insecurity, and other trauma. Register below to join us for this month’s important discussion.
 Trauma Informed Teaching & Lawyering Friday, February 26, 3 p.m. to 4 p.m. EST
Register Here 
Featured Panelists
Sarah Katz
 Prof. Katz joined the Temple Law faculty in July 2012. She directs and teaches the Family Law Litigation Clinic. She researches and writes about trauma-informed legal practice, the child welfare system, child custody, intimate partner violence, and other family law topics.
Teri McMurtry-Chubb

 Prof. McMurtry-Chubb researches, teaches, and writes in the areas of critical rhetoric, discourse and genre analysis, and legal history. She has lectured nationally on structural discrimination in educational institutions and the workplace, and is a leader in designing curricula to facilitate diversity, equity, and inclusion efforts.
Andrew Sta. Ana

 Mr. Sta. Ana is the Director of Law and Policy at Day One. Based in New York City, Day One partners with youth to end dating abuse through community education, supportive services, legal advocacy and leadership development. Mr. Sta. Ana works to amplify the voices of young survivors and to promote healthy relationships.
After registering, you will receive a confirmation email
containing information about joining the meeting.

The Imperative and Power of Empirical Research

By Anahid Gharakhanian, Southwestern Law School

Allison Korn and Laila L. Hlass’s Assessing the Experiential (R)evolution, recently published in Villanova Law Review, should be celebrated as a much needed example of empirical investigation and analysis in legal education, specifically experiential education.  As aptly noted in the Experiential Education section of Building on Best Practices, “[l]egal education urgently needs empirical research on what methods will best promote deep learning that transfers to practice.” 

For many years, the experiential teaching community has had the benefit of the triennial CSALE Study, providing extensive data about the infrastructure of clinics and externships.  Now Korn & Hlass’s empirical work provides data about the proliferation of deans/directors of experiential education and growth in experiential curricula.  This data sets the stage for the important questions they raise about what law schools are doing about the following:  “working to uplift experiential programming as an essential part of the institution,” and “core to the law school curriculum”; “taking steps to identify, recruit, and support clinicians of color”; and ensuring security of position and voice in law school governance.  Korn & Hlass’s work, along with CSALE’s compilation of data since 2007 about applied legal education, serves as an essential foundation for posing these important questions and joins the clarion call of others that rigorous empirical research is critical in every aspect of our assessment and advancement of experiential education – the students’ learning, role of experiential curricula, and diversity of and equity for experiential faculty. 

I think about the critical importance of empirical work from the vantage point of externships or field placement courses, which provide a singularly unique bridge to practice and where so much of the student’s experience occurs outside of the classroom and the externship professor’s direct observation.  Anecdotally we know that these real world experiences are very important to a student’s professional development and practice readiness as a new attorney.  At the same time, the ABA and some in legal education have worried about the educational rigor outside of the law school setting.  What’s needed is exploration of our impressions and perceptions through rigorous empirical work.  In the world of externships, this translated into research questions that Carolyn Young Larmore, of Chapman University, Fowler School of Law, and I took up in a year-long, multi-school study, assessing students’ success at externships and factors contributing to it (involving three law schools in the same geographic area, with very different externship program designs, and widely different incoming credentials – with 2019 median LSATs of 153, 158, and 168).  The study yielded helpful information about the importance of externships to practice readiness.  Also, a notable finding of our study – related to access – was that students from all three surveyed schools achieved very similar levels of externship success (measured in terms of first-year practice readiness), regardless of widely different entering credentials as well as the academic component of the externship programs.  Similarly, the study found that law school GPA plays a very limited role in predicting externship success.  You can see how this data could be a powerful tool in creating access for law students, from many diverse academic backgrounds and schools, to career-shaping professional experiences while in law school and beyond.

As we tackle empirical questions in experiential education, it’s helpful to think about backward design.  In the case of the experiential programming that we offer to our students, a couple of recent national studies are enormously helpful: IAALS’s Foundations for Practice, a relatively recent national study about what foundations entry-level attorneys need to begin a successful legal career (which is the study that Carolyn and I used to define externship success in our own study – i.e., how close are externs by the end of their externship to first-year practice readiness); and the very recent study by IAALS and Professor Deborah Jones Merritt, Building a Better Bar: Capturing Minimum Competence, with one of its two objectives to “[d]evelop and promote understanding of the minimum competence needed to practice law” (and the second one to “[a]lign the bar exam with research-based concepts of minimum competence”). 

To borrow from IAALS and Professor Merritt, the key here is being guided by research-based concepts.  Whether assessing our students’ learning (as Carolyn and I tackled in our externship study), or raising questions about the role of experiential curricula, and diversity of and equity for experiential faculty – as Korn & Hlass have done – we need to engage in more empirical research and use this powerful tool to inform and advance the critical work of experiential education and educators.

Lawyers are Leading Higher Education as Advocates Call for More Formal Leadership Training in Legal Education

Patricia E. Salkin*

My recent research on the exponential increase in the number of lawyers leading colleges and universities has prompted an exploration into the what it is in legal education that prepares lawyers for key campus leadership positions. Since the 1980s the number of lawyer presidents has almost doubled every decade, starting with 47 in the 1980s and reaching a high of 289 in the 2010s. Some of these lawyers leaders have government experience, others served as general counsel, and many have had significant fundraising experience.  The number of women lawyer presidents has also increased paralleling their rise to prominence within the legal profession.

Lawyers are prone to describe themselves as creative problem solvers who possess necessary leadership skills for success as leaders in law firms, government, business and increasingly in higher education. But are lawyers born leaders or do lawyers acquire leadership skills as part of their formal academic training?  Until very recently, few if any law schools historically included leadership training as a distinct topic of study in the curriculum. In fact Professor Deborah Rhode wrote in one of the first newsletters of the AALS Section on Leadership, “As you all know, it is a shameful irony that the occupation that produces the greatest number of American leaders has done so little to effectively and intentionally prepare them for that role. Although the legal profession accounts for only about .4 percent of the population, it has supplied a majority of American presidents, and innumerable leaders throughout the public and private sector. Few of these individuals receive any formal leadership training in law schools.”  She reiterated this sentiment during an AALS interview calling on law schools to embrace the need for more formal leadership training, which can and should be more intentionally learned.

Surprisingly, contributions to the Best Practices in Legal Education blog have paid little attention to this critical topic. Scattered posts have focused on the addition of a new course at one school, the establishment of the new AALS Section on Leadership and a workshop for law professors interested in integrating leadership related topics into classes, and the launch of the Leading as Lawyers Blog.   Yet the call for more deliberate inclusion of leadership studies in legal education is rising. Thanks in large part of the efforts of Baylor Law Associate Dean Leah Teague, in 2017 the American Association of Law Schools charted the new Section on Leadership, “to promote scholarship, teaching and related activities that will help prepare lawyers and law students to serve in leadership roles.” A panel discussion moderated by Baylor Dean Bradley J.B. Toben on Leadership Programming in Law Schools at the 2020 Baylor Law School Vision for Leadership Conference noted that 80 of the 203 law schools now have some form of leadership development for students. UIC John Marshall Dean Darby Dickerson posited that because of legal training, lawyers are well-positioned to be leaders in a VUCA world (volatility, uncertainty, complexity and ambiguity).  She explained that lawyers are trained to: continuously ask hard questions; find the essence of the problem by breaking it down into subparts – taking it apart and putting it together again; use multiple perspectives; be problem-solvers; analyze and cope with fact gaps and ambiguity; understand agreements and honor commitments; communicate clearly and concisely; and be life-long learners. All of this and more are important skills for effective leaders.

In one of her seminal books, Deborah Rhode, writing about leadership traits of lawyers, noted that despite the robust literature on “trait theories” of leadership, the context and roles in which lawyers function are critically important. She explained that the widely accepted traits of successful leaders include:

            values (such as integrity, honesty, trust and an ethic of service);      

            personal skills (such as self-awareness, self-control, and self-direction);

            interpersonal skills (such as social awareness, empathy, persuasion, and conflict

            management);

            vision (such as a forward-looking and inspirational); and

technical competence (such as knowledge, preparation and judgment). (Rhode, Deborah, Lawyers as Leaders, Oxford University Press 2013)

The Center for Creative Leadership identified ten core skills that effective leaders possess, only a few of which overlap with Rhode’s list:  integrity; ability to delegate; communication; self-awareness; gratitude; learning agility; influence; empathy; courage; and respect.  Two skills that lawyer pride themselves on, creativity (e.g., creative problem solvers) and innovation are missing from this list.  The intersection between leadership and creativity has not been widely studied.  Ben Heineman, Jr., in his essay on Lawyers as Leaders, called upon law schools to require students to create and not just critique as part of their education. In a recently published article, University of Idaho College of Law Professor John Dykstra made a compelling case for fostering and teaching creativity in the law school curriculum, and he suggested ways in which it can be incorporated into Legal Writing programs.

All of these identified traits and/or skills could be deliberately mapped through the curriculum in addition to offering focused seminars on leadership for lawyers.  For example, Columbia Law School has developed a Leadership Competency Matrix that focuses on how lawyers lead self, lead others and lead change through: vision and strategy, management and teamwork, problem solving, cultural literacy, and learning and improvement.   

The good news is that law schools are starting to heed the call for increased leadership training. In addition to the annual Baylor Law conferences, in November 2019 the Freedman Institute of Hofstra University’s Maurice A. Deane School of Law hosted a conference at the Association of the Bar of the City on training lawyers as leaders.  Formal programs on leadership for lawyers (e.g., more than simply a course) exist at a number of schools including:  Baylor Law School,  Santa Clara University School, University of Tennessee College of Law, Cleveland-Marshall College of Law, and the Moritz School of Law at Ohio State University.  The following is an illustrative but not exhaustive list of law school courses and programs on leadership: Albany Law; Baylor Law; Berkeley Law; Cleveland-Marshall School of Law; Columbia Law; Creighton University School of Law; Elon Law; George Mason University- Antonin Scalia Law School; NYU Law; Ohio State’s Moritz College of Law School; Santa Clara Law School; Stanford Law School; Tennessee College of Law; Texas A&M School of law; University of Chicago Law School; University of the Pacific McGeorge School of Law and Pritzker School of Law Northwestern University; University of San Francisco School of Law; and Villanova University School of Law School.

In January 2021 the legal profession lost a giant with the passing of Deborah Rhode the Ernest W. McFarland Professor of Law and the Director of the Center on the Legal Profession at Stanford Law School. One way in which legal academy can pay tribute to Professor Rhode is to continue to answer her call for more formal training on leadership across the law school curriculum.

*Patricia Salkin is Senior Vice President for Academic Affairs for Touro College and University System and Provost for the Graduate and Professional Divisions at Touro College.  She is the former Dean of the Jacob D. Fuchsberg Touro Law Center.  This piece is based upon her PhD dissertation research at the University of the Arts (PhD in Creativity anticipated May 2022).

Best Kept Secret Exposed! Georgia State Law’s Racial Justice Resources

The summer of 2020 found many of us searching for new ways to integrate racial justice into our law courses. My approach was to develop a new course called “Human Rights, Intersectionality, and the Law” for upper level students at Penn State Law. I am teaching the course for the first time this semester. A critical part of my course design came from a resource that is one of the best kept secrets in legal education –but no longer! I am excited to share with you and encourage you to utilize Georgia State Law’s Racial Justice Resources, which include a seemingly endless set of links to articles, videos, and other materials on teaching critical race issues, as well as a how-to guide for teaching race in 1L courses. 

I agonized over how to begin developing my syllabus, but my agony transformed to exuberance when I found this resource. It enabled me to reach my goal of amplifying the voices of women of color and others with intersectional identities. Every sub-topic I had conceived for my course was either covered by one of the linked materials or by a source referenced by one of them. One exciting rabbit hole led to another. For example, Alexi Nunn Freeman and Lindsey Webb’s Positive Disruption: Addressing Race in a Time of Social Change affirmed my approach to using non-legal material to frame issues alongside traditional legal texts and provided a plethora of materials in its citations. This Pew Research Center article on Native American poverty led me to numerous others which resulted in my assigning this piece on uneven vs. sustainable development in Portland, including racial and gender justice. The Georgia State Law Racial Justice site’s Introduction page offers sample language for learning objectives, which I incorporated chapter-and-verse into my syllabus, crediting the brilliant Dean Danielle Conway of my “sister school” Penn State Dickinson Law, who authored the learning objectives.

Perhaps most importantly, this article from the psychology discipline helped me come to terms with teaching these topics as a white woman. It gave me concrete, detailed, evidence-based suggestions about how to intentionally design and deliver a course as an ally rather than a well-intentioned but uninformed academic trying to speak a language not my own. It even gave it a name: Multicultural Imposter Syndrome. This helped me see that openly expressing my solidarity for those who have been subordinated is useful in the classroom, even as I acknowledge that my experience is not the same as theirs. Similarly, the article White Doors, Black Footsteps: Leveraging “White Privilege” to Benefit Students of Color by Leslie Culver confirmed for me the concept that I can advance diversity in the profession by offering a course like this. 

So there it is. The secret is out. Georgia State Law’s Center for Access to Justice, law librarians, and their partners have compiled a true gem. Spread the word!

Registration is Open for the “Teaching Multicultural Lawyering” Conference!

By

By: Kim O’Leary, Professor, WMU-Cooley Law School and Mable Martin-Scott, Professor, WMU-Cooley Law School


Dear Colleagues,

We are pleased to announce registration is open for our online conference Teaching Multicultural Lawyering: Development, Integration and Conversation at WMU-Cooley Law School.  There is no charge to attend.  

Information about registration, schedule and the conference topics and panelists follow.   The focus of the conference is teaching multicultural lawyering in a variety of forms.

The online conference will take place on Thursday, March 11 (from Noon-3:30 p.m. EST) and Friday, March 12, 2021 (11 a.m.-4:30 p.m. EST).

Registration Information

Register at https://www.eventbrite.com/e/teaching-multicultural-lawyering-development-integration-and-conversation-tickets-124694060291. 
Please note that space is limited.  The deadline for registration is February 19, 2021.

Conference Schedule

The conference agenda is designed to accommodate the many demands on your time by focusing on two afternoons with two sessions each day and a keynote panel discussion on Friday.

While we understand there are many competing demands on your time, we encourage you to attend the full event if possible.  This conference will bring together law professors who teach this subject in different ways.  We would like to build on this shared knowledge to explore the possible ways we can teach these important issues to law students.

The conversations will be enriched and most effective if participants attend all presentations and activities that we have planned for these two afternoons.

That said, we know that everyone will not be able to attend all the sessions.  We only ask that when you sign up for a small group session, you are reasonably sure you can attend that small group.  You do not have to enroll in every small group opportunity.

Program Overview

The following is a brief overview of the conference.  Some of the sessions will have break-out groups to facilitate small, in-depth discussions.  We look forward to welcoming the distinguished speakers and panelists!  Listed below are panelists who are confirmed.

Thursday, March 11 (from Noon-3:30 p.m. EST)

Session 1:  Introduction; Multicultural Lawyering: Development and Teaching the Course

Professor O’Leary (co-moderator), Professor Martin-Scott (co-moderator), and WMU-Cooley Law School students

Session 2:  Learning Objectives and Assessment Regarding Multicultural Curricular Offerings
 

Professor O’Leary (moderator); Professor Dan Sheaffer, WMU-Cooley Law School; and, Catherine McCollum, Director, Teaching and Learning Center, WMU-Cooley Law School


Friday, March 12, 2021 (11 a.m.-4:30 p.m. EST)

Distinguished Panel Discussion:  Insights from Those Who Have Led the Way

President and Dean James McGrath (moderator); Dean and Professor Leonard M. Baynes, University of Houston Law Center; Dean and Donald J. Farage Professor Danielle Conway Penn State Dickinson Law, Professor Berta Hernández-Truyol, University of Florida, Levin College of Law; and, Professor Emerita Vernellia Randall, University of Dayton School of Law

Session 3:  Incorporating Multicultural Topics Into Law Courses

Professor Paula Johnson, Syracuse University College of Law; Professor Arlene S. Kanter, Syracuse University College of Law; Professor Suzette Melendez, Syracuse University College of Law; and, Professor Mary Szto, Syracuse University College of Law


Session 4:  Professional Identity and Multicultural Lawyering

Professor Martin-Scott (moderator); Professor Janice Craft, University of Richmond School of Law; and, Professor Lucy Jewel, University of Tennessee College of Law


Please contact us at mcl@cooley.edu with questions and if you would like to be added to our interest list to receive updates and other details as they become available.  Anyone who registers for the conference will receive regular updates.


We hope you can join us!

Kim O’Leary, Professor, WMU-Cooley Law School

Mable Martin-Scott, Professor, WMU-Cooley Law School

Diversity, Equity, and Inclusion in the Experiential (R)Evolution

G.S. Hans

In Assessing the Experiential (R)Evolution, Allison Korn and Laila Hlass have written an excellent, incisive article on the after-effects of the ABA’s adoption of a standard mandating that law schools require J.D. students to complete at least six credits of experiential coursework. Korn and Hlass observe how titanic a shift this was; while less than the 15 credit requirement that some advocated for, it still reflected a six-fold increase from the prior regime.

All those experiential credits have to come from somewhere, and that’s where Korn and Hlass take up their project. They sought to learn, through an extensive survey, how schools have responded to the new ABA requirement. One of their central contributions in their article is determining exactly how law schools have complied with the new standards. While some schools had little work to do to ensure compliance — either because they already required at least six credits of experiential education or  because they already offered enough courses to allow students to fulfill the ABA requirement — many others created new classes, modified existing courses, or engaged in broader curricular reforms.

Who teaches these classes, and who ensures they run properly? Korn and Hlass examine these questions as well, discussing how schools have relied upon the now-prevalent academic administrator — often a Head of Experiential Education, referred to by various titles — to manage and facilitate the experiential curriculum. The responsibilities that flow from such power are significant and likely to grow, particularly if the ABA revisits the credit hour requirement or if other states follow New York’s lead in creating experiential requirements for bar applicants.

Drawing upon the scholarship of Jon Dubin and the CLEA Faculty Equity & Inclusion Committee, of which I am co-chair, Korn and Hlass discuss the potential diversity and equity concerns that might result. While the data their article describes is impressive, it does not include race or gender information on experiential directors and deans. Our committee is working to rectify that gap, as a lack of data has stymied research — and thus reforms. There are many reasons to seek better diversity and representation from experiential administrators, but the visibility of the role, both as a symbol of a law school’s experiential program and within the administration of law schools, is particularly compelling.

One concern I have, which Korn and Hlass mention, involves the diversity and representation issues for instructors who lack employment security. With law schools potentially entering a permanent cost-consciousness mentality, determining how to finance the need for experiential courses will merit special attention from deans and experiential administrators. Though Bob Kuehn has shown that the reputation of clinics as high-cost relative to other law school expenditures is overstated, law schools may still choose to use adjuncts, fellows, and other short-term faculty to satisfy their ABA requirements in a less expensive way. 

Korn and Hlass note Meera Deo’s warning, in her influential book Unequal Profession, that law schools might seek to grow their diverse faculty in the least secure positions. Some experiential faculty are on the tenure-track or have tenured positions, whilst others have more precarious appointments. Adjuncts and fellows have the least job security of instructional faculty — but might present appealing, lower-cost options for expanding experiential offerings, through practicums, labs, or clinical seats. For some law schools mindful of financial concerns, hiring an adjunct to teach Negotiation as an experiential course to 24 students might seem more appealing than creating three tenure-track clinical faculty lines to offer 24 seats on the standard 8:1 ratio for clinical courses. Given Deo’s concerns, we should keep an eye on whether less-secure positions are being used to comply with the ABA requirement, and whether those positions are being disproportionately filled by diverse faculty.

Korn and Hlass have given us all much to think about in this comprehensive and innovative article, which ties together many strands of current debate within the experiential community. I particularly appreciated its generative qualities — I myself came away with many questions and ideas for future research. These issues will require scholarly engagement and discussion from many faculty and law schools in order to chart a just and equitable path forward for instructors, students, clients, and law schools.

Experiential Education and the First-Year Curriculum

Eduardo R.C. Capulong

One way to describe today’s law school curriculum is in terms of détente—a truce in which law schools have decided that experiential work can happen in the third year so long as the case method reigns supreme in the first.  Students can take clinics or externships later but their first preoccupation would be dissecting appellate opinions for doctrine and reading supplemental materials for context.  Allison Korn’s and Laila Hlass’ survey of experiential courses post-revised ABA Standards 303 and 304 provides us a fresh glimpse of this pedagogical battleground—and, as Tony Amsterdam observed nearly four decades ago—equips reformers with more “political dynamite” to throw at this ossified state of affairs.

Korn and Hlass report that 19 schools expanded and 20% of respondents changed their first-year experiential curricula post-revised Standards.  “Labs” and “practicums” have proliferated, as have deans for experiential education—many former clinic directors now overseeing the entire experiential arc.  These developments, they prescribe, should “ensure not only compliance with the new ABA Standards, but also advancement of a diverse and comprehensive experiential curriculum that bolsters faculty expertise, develops students’ substantive and contextual knowledge and practical skills, and expands access to justice.”  To these ends, they call for ensuring the long-term viability of experiential deans; rigor in the approval, development, and assessment of experiential courses; and diversity of and security of tenure for experiential faculty.  The survey reveals what should be easily correctible oversights, as well, such as including simulation courses in Standard 303(b): since such courses are experiential under its definition, there’s no reason why law schools shouldn’t “provide substantial opportunities” for them just as they must for clinics and field placements/externships.  (Indeed, best practices should call for students taking a clinic and anexternship and a simulation course.)

Above all, Korn and Hlass surface the need for theory—i.e., pedagogical theory, or what my colleague, Julia Hernandez, calls an “antidisciplinary lens.”  The law school is, of course, a key pillar of the American establishment, hence the durability of how things are done.  The reason the formalist cast has endured is that it has served racial capitalism exceptionally well: it abstracts, objectifies, normalizes, and obscures raw, violent power in a set of purportedly neutral rules equally applicable to all.  Reformers have mounted successive challenges against the case method for more than a century.  Yet none has been successful in supplanting it.  That’s the story of social movements fighting hegemony, coinciding with historical forces in ebb and flow.  It’s also the story of reformism: piecemeal changes not quite striking at the heart of their target.  What we need, as Jerry Lopez recently argued, is an “alternative vision.”

Labs and practica in the first year may seem quaint from this perspective.  But like any movement with a visionary goal and immediate realities to confront, they’re promising next steps.  They can form the backbone for the faculty collaboration Korn and Hlass rightfully note as key to an effective experiential curriculum.  They can be tied, for example, to lawyering or legal methods courses that can then form the hub of a reimagined curriculum.  They can be vehicles for developing simulation pedagogy and professional identity, which remain undertheorized.  (I’m not disinterested here: I direct one such program in a school founded on such a model and helped convene a network of Lawyering professors promoting these ideas.)  With the rise of the information economy—including rapid technological changes and the ready availability of legal materials whose use as asynchronous instruction has been hastened by the pandemic—law faculty should be less purveyors than curators of knowledge, less lecturers than coaches or sources of skillful and ethical guidance—i.e., less doctrinal teachers than clinicians. 

I’m hopeful.  The developments Korn and Hlass surveyed coincide with five others that should make us optimistic.  The first is the racial reckoning that many law schools have undertaken in the wake of the Black Lives Matter movement.  The second are the redoubled efforts by critical race scholars to reform the first-year curriculum, including recent work on the white supremacist foundations of legal rhetoric and ongoing work to forge what my colleague Yasmin Sokkar-Harker calls “critical legal information literacy.”  The third is a professional identity movement seeking to systematize instruction.  The fourth are professional competency studies that confirm the soundness of the experiential project—the latest of which, led by Deborah Merritt, was published two months ago.  And the fifth are potential changes to the bar exam recently recommended by the NCBE and summarized in these pages, which call for the “assessment of lawyering skills to better reflect real-world practice and the types of activities newly licensed lawyers perform” and the expansion of those “foundational skills … to include more than just legal analysis and writing [but also] legal research, factual investigation and evaluation (including fact gathering), client counseling and advising, client relationship and management, and negotiation and dispute resolution.”  Taken together, these parallel movements form at least part of our curricular terrain.  Détente or no, they are the leading edges of change and I’m thankful for Korn and Hlass for their important contribution.

Lessons from Critical Race Theory for the Experiential (R)evolution

Robin Walker Sterling

In Assessing the Experiential (R)evolution, new experiential learning directors Allison Korn and Laila Hass conclude that law schools should “define the boundaries of experiential dean and director roles,” and provide faculty members in those roles appropriate administrative and other support; “implement sustainable practices to expand and support experiential faculty, with a focus on including and valuing underrepresented clinicians of color,” and “develop practices to ensure rigor in the process for approving and assessing experiential coursese while appropriately allocating resources to courses and programs.” The authors based their comprehensive recommendations on survey responses from 126 law schools received in the fall and winter of 2018.

Since then, our country has faced both an unprecedented health crisis and protests stemming from long-simmering social unrest. We have been caught in the pincer grip of two widespread pandemics, one old and one new. The novel coronavirus has upended our lives, exploiting fault lines of marginalization to disproportionately affect the communities that many law school experiential programs serve. To date, even as the new presidential administration rushes to deliver doses of the vaccine to vulnerable populations, there are 26.9 million cases of covid-19 in the United States, and more than 460,000 people have died. Communities of color have disproportionately borne the brunt of the virus’s effects. According to the Washington Post, even after controlling for age, sex, and mortality rates over time, Black Americans were 37 percent more likely to die of the virus than whites; Asian Americans were 53 percent more likely; Native Americans and Alaskan Natives were 26 percent more likely; and Hispanics were 16 percent more likely to die than whites.

At the same time, the decades-old systemic racism embedded in policing reached a tipping point, leading to uprisings, protests, and calls for change around the world. On the heels of the shooting of Ahmaud Arbery, unarmed and jogging in Georgia, and of Breonna Taylor, unarmed and asleep in her own home in Kentucky, the suffocation death of George Floyd on a city street in Minneapolis led to the longest and largest period of protests for civil rights in the United States since the 1960s. On one day during the months of protests, June 6, over half a million people protested in nearly 550 places across the United States. The protests have led to significant changes. The Minneapolis City Council promised to dismantle its police department. New York legislators repealed a law that kept police disciplinary records confidential. Jurisdictions across the county banned chokeholds. Colorado disallowed qualified immunity for police in certain situations. Perhaps as importantly, the pendulum has shifted in the public’s acceptance of the Black Lives Matter movement, with support increasing in the weeks after George Floyd’s murder as much as it had in the last two years. In his inaugural address, President Biden listed “a cry for racial justice some 400 years in the making,” along with the coronavirus, the economy, the threat of white supremacy, and climate change as the defining challenges of our time.

As the clinical legal education community undertakes the critical assessment that the authors urge, it might do well for us to strategize around achieving these gains using tenets of critical race theory. Some of the foundational tenets of criminal race theory include: questioning the idea of “meritocracy” and the assumption that standards of “merit” can be neutral under current social conditions; emphasizing taking action to make real change in the world; and understanding that power works hegemonically. All of these are consonant with some of the cornerstone principles of clinical legal education. In particular, Derrick Bell’s theory on interest convergence might be instructive. Professor Bell developed his ground-breaking theory in the context of civil rights, when he argued that the Brown v. Board of Education (1954) decision, which prohibited de jure segregation of public schools, came about because such a ruling benefitted white people. Professor Bell argued that the Brown decision: soothed the anger and potential of political protests Black veterans, who had served their country in World War II only to return home to continued discrimination; advanced American Cold War objectives by making the United States seem more reasonable than Russia to third world countries; and facilitated desegregation, which was now seen as economically advantageous to the South. As Professor Bell (1980) put it, “the interests of Blacks in achieving racial equality will be accommodated only when it converges with the interests of Whites.”

This principle, broadened and restated as the premise that the interests of a more marginalized group will gain traction only when they coincide with the interests of the dominant group, might be applied to the situation of clinical legal education relative to traditional legal academia. If we applied this principle, then goals like educating members of traditional legal academia about the important contributions of clinical legal education, or appealing to traditional legal academia’s sense of unfairness become less important. Instead, our strategy becomes one of figuring out how to recast the academic and administrative gains we are seeking as aligned with the interests of non-clinical legal academia. That is a much larger topic than can be accommodated in this short blog post. But, in the same way that the zeitgeist of the protests of the 1960s Civil Rights Movement created an atmosphere ready for change, these recent protests have done the same. This article, with its comprehensive questions and recommendations, helps clinical legal academia make the most of this moment.

Why Bar Examiners Should Eliminate Essay Questions and Focus on Performance Tests

The NCBE has announced that in four to five years, there will be a different bar exam.  In the interim, why not make changes to the existing exam so that it better reflects the skills needed in law practice?  One easily implementable change: eliminate the essay questions and use the time allotted to those questions for the performance test questions.

This idea was raised by  Professor Deborah Merritt in her talk at the BYU Annual Law and Leadership conference. The idea stems from her groundbreaking study on the skills new lawyers actually need to competently represent clients.  Professor Merritt and researchers at IAALS analyzed data from 50 focus groups conducted in twelve states with a diverse group of new lawyers and their supervisors across a range of practice areas. 

The study data confirmed what we intuitively knew: that the bar exam MPT performance test most resembles what new lawyers do in practice. 

On the other hand, bar exam essay questions require examinees to memorize significant amounts of information beyond what they must already memorize for the multiple choice questions [MBE].  Many of the subjects memorized for the current essay questions will be eliminated from the NCBE’s proposed new exam.

The essay questions also do not allow examinees to research or review the applicable legal rules before answering, and they have little relationship to how new lawyers approach problems in practice.  On the other hand, the performance test questions do relate to the skills new lawyers use.

As Sara Berman notes in her book, Bar Exam MPT Preparation & Experiential Learning for Law Students mastering how to take the performance tests is an opportunity to practice skills necessary for law practice.  This book offers a logical and easy to follow process for studying for, and taking, the performance tests. 

Given the existing bar exam format, Berman appropriately devotes a significant portion of the book to strategies that help examinees understand how to write an effective answer in the time allotted.  Her excellent advice and strategies are particularly useful given the tight time frame examinees have to answer these questions and she provides a lot of sample questions for practicing skills, including reading all the materials and drafting a document in ninety minutes. 

Berman’s strategies for managing the MPT time constraints make sense because, as Professor William Henderson’s study confirmed, test taking speed on tests such as the bar exam is an independent variable when it comes to assessing test performance.  Thus, it is important to teach students to quickly answer test questions.  However, is that the message we should be sending?  Should we be encouraging speed over careful reading and ensuring accuracy?  

If the NCBE eliminated the essay questions and allotted that time to the MPTS, or even if it simply gave states the option to adopt this change, it could study its impact.  Currently, we don’t know whether three hours versus ninety minutes to answer an MPT question makes a difference, and if so, for whom. Does the difference affect those who come close to, but do not achieve, the arbitrarily set passing cut scores?   These questions are particularly important given the significant impact cut scores play on the profession’s racial and ethnic diversity. 

This minor change, which could have a major impact, is just one of the many innovative ideas presented by Professor Merritt at the BYU conference on law licensing reform.  Her remarks, as well as the remarks of other conference speakers, are available if you scroll to the bottom of this website.

Examining Our Experiential Experiments

By Phyllis Goldfarb

In their new article, Assessing the Experiential (R)evolution, 65 Villanova Law Review 713 (2020), Allison Korn and Laila Hlass describe the ways in which experiential education is experimental education.   Faced with the 2014 ABA regulation mandating that all students earn at least six credits toward graduation in experiential courses, clinical education has been responding experimentally to the need to do more experientially, offering more courses in more forms to more students. At the same time, many law schools have been doing more with less, as the need for experiential growth has been accompanied by the diminished availability of resources.  

We can add to the complexities of this picture our burgeoning crises in global health, democratic governance, lethal racism, economic inequality, planetary survival, and other dangerous and pressing social problems that are implicated in the kind of work that clinical education undertakes.  Involving students in urgent and weighty matters of law and justice has long animated the clinical movement.  Have the ABA’s regulatory moves facilitated or impeded these aims in any way?  How is clinical education faring at this challenging moment? 

Korn & Hlass seek to address questions like these empirically, reporting in their article the findings of a 2018 survey they conducted to gather information about how experiential programs have changed in response to the ABA’s six-credit mandate.  The authors find that our experiential experiments have yielded an array of curricular innovations, especially though not exclusively in upper-level courses.  Their article also confirms the trend in most law schools to name a dean or director of experiential education, presumably to help design and oversee the experiential curriculum and to manage expanding experiential programs.  

The latter finding builds on those analyzed in Barry, Dinerstein, Goldfarb, Maisel, and Morton, Exploring the Meaning of Experiential Deaning, 67 Journal of Legal Education 660 (2018). In this article, my co-authors and I observed that despite a rapid increase in the creation of experiential administrator positions, and the assignment of various tasks to their holders, law schools had not fully conceptualized the nature of the position.  Consequently, the meaning of experiential deaning was in the process of invention and negotiation in each dean’s school.  In other words, these roles were experiments. 

Experiments, of course, are designed to be evaluated.  Applying a clinical method of learning, Korn & Hlass urge that we develop processes for evaluating recent experiments in experiential education, so that we can extract the lessons inherent in our experiences with administering, teaching, and reforming it.  Which changes are working well and worth retaining?  Which should be revisited?  Are institutional goals guiding these decisions?  To the extent that experiential administrators are steering these changes, how have institutional goals informed their work?   Are law schools further developing and defining these administrative positions?  Are these positions evolving in a sustainable way?  What conditions best support their sustainability?

The authors, experiential administrators in their respective institutions, have sought to learn from their own experiences in these administrative positions, to ask pertinent questions, suggest possible answers, and frame an assessment project that would guide them, and all experiential educators, in moving forward as knowledgeably and effectively as we can from where we stand now.  A rigorous assessment project of the sort that they helpfully propose in this article would inform our choices about the future of experiential education.

Having seen over many years how experiential learning can enliven, deepen, and transform legal education, I strongly value the expressive quality of the ABA’s regulatory directives to provide that kind of educational engagement to all law students.  I can envision rich curricular possibilities that these directives might support.  But my underlying fear has been that general law school administrators, especially those lacking awareness of the insight-cultivating aims of clinical pedagogy, would seek bare bones fulfillment of the mandate, finding the most limited and low cost ways to offer all students six experiential credits and shortchanging the educational opportunity that the mandate might represent.  Has that happened?  Korn & Hlass have begun to elicit the sort of information we need and to frame the kind of assessment process that we can use to better understand what the ABA’s regulatory efforts have wrought.

In gathering and analyzing experiential education’s experimental data, Korn & Hlass have taken an important first step toward a process of conscious assessment and collective deliberation that hold promise of improving our experiential programs and of identifying meaningful, inclusive, and sustainable practices for the next stage of development in experiential education.  The experiential education community would be well-served by joining them in this important and productive endeavor.

Assessing the Experiential (R)evolution

by Professors Laila Hlass (Tulane Law) and Allison Korn (UCLA Law)

In the midst of calls for law schools to meaningfully address systemic racism in our institutions and a pivot to virtual and hybrid learning in response to the global COVID-19 pandemic, the time is now to consider new paths forward in experiential education. Furthermore, in the wake of deadly assaults on our democracy, law schools’ should grapple with how to teach  justice and social change formally through curriculum and informally through programming. We hope to spark conversation and action regarding reimagining legal education, specifically contemplating the roles that experiential education and experiential faculty should play in the future of law schools.

For more than a century, law schools did not generally mandate any experiential education, but in 2014, the ABA adopted six-credit mandate, alongside a packet of experiential reforms.  In 2018–2019, as the first classes of law students graduated under the revised ABA Standards, we conducted a national survey of ABA-accredited law schools, asking about changes in experiential education and we received responses from 126 institutions.

Our article Assessing the Experiential (R)evolution, recently published in Villanova Law Review, reports findings from this empirical investigation into the experiential landscape shift since the revised Standards were adopted. From our survey, we learned of a recent proliferation of deans and directors of experiential education. Along with this came continued growth in experiential curricula, including among experiential courses in the first-year curriculum, and experimentation with new pedagogical approaches, such as adopting hybrid experiential courses termed “labs” and “practicums.” These trends of expansion and experimentation raised many questions for us:

  • As law schools increasingly add deans and directors of experiential education, experiential courses, and new tools for course assessment and approval, while experimenting with new course models, are they also working to uplift experiential programming as an essential part of the institution?
  • As law schools hire new experiential faculty and appoint experiential deans and directors, are they being responsive to the clinician diversity imperative, taking steps to identify, recruit, and support clinicians of color?
  • Are law schools not only integrating experiential deans, directors, and faculty into the greater faculty but also ensuring that they have reasonably similar security of position and a voice in law school governance?
  • While investing in integration across law school coursework, have law schools acknowledged that experiential education is core to the law school curriculum?

Our article proposes a series of recommendations aimed at ensuring sustainability for experiential deans and directors, implementing equitable practices for experiential curriculum and faculty development, and assessing curricular changes thoughtfully and deliberately. But this proposal is only a starting point for deeper discussion about how we might approach our experiential programs and renew our collective vision for robust, innovative, justice-centered experiential education. Over the next few weeks, the Best Practices Blog will host reactions to and commentary on these themes from a deep bench of extraordinary colleagues in the experiential community. From building sustainable administrative roles to examining and improving racial diversity among experiential faculty; from increasing experiential offerings for first-year students to highlighting changes within externship and field placement programs – each commentary will help us assess and build on current experiential programs and call on our institutions to better understand and support the increasingly vital role experiential education plays in the legal academy.

The Next Generation of the Bar Exam, NCBE Style

The Testing Task Force of the National Conference of Bar Examiners (NCBE) recently completed the three phases of its “future-focused study to ensure that the bar examination continues to test the knowledge, skills, and abilities required for competent entry-level legal practice in a changing legal profession.” Earlier this month, as tumultuous events in Washington, D.C. grabbed most of the headlines, the task force quietly released an Overview of Preliminary Recommendations for the Next Generation of the Bar Exam. The recommendations are a big deal—possibly a game changer—and deserve some discussion.

I see three positive aspects of the task force’s preliminary recommendations:

First, quoting the document directly, “Our decisions were guided by the prevailing views expressed by stakeholders . . . : that the bar exam should test fewer subjects and should test less broadly and deeply within the subjects covered, [and] that greater emphasis should be placed on assessment of lawyering skills to better reflect real-world practice and the types of activities newly licensed lawyers perform . . . .” So many critics of the current bar exam, myself included, have argued exactly these positions for so long, but to read them coming from the task force directly affiliated with the NCBE is no small matter.

Indeed, the task force recommends a significant reduction in the number of legal subjects to be tested—just Civil Procedure, Contracts, Evidence, Torts, Business Associations, Constitutional Law, Criminal Law, Criminal Procedure (limited to constitutional protections), and Real Property. These reductions, if they were adopted, would cut from the current Multistate Essay Examination (MEE) subjects, not the Multistate Bar Exam (MBE) ones. Many will understandably quibble with the retention of all seven MBE subjects, and indeed I will do just that below. Still, one can hope that, if the task force’s recommendations are adopted by the NCBE, the bar exam of the future will in fact cover the several MBE subjects “less broadly and deeply” than the extent to which they are currently tested.

One reason to be hopeful that the next generation of the bar exam would in fact test MBE subjects less broadly and less deeply is that the task force is recommending a fundamental shift away from the model of discrete exams like the MBE, MEE, and Multistate Performance Test (MPT). It is instead calling for an integrated exam that would test “knowledge and skills holistically, using both stand-alone questions and item sets, as well as a combination of item formats (e.g., selected-response, short-answer, and extended constructed-response items).” As always, the devil will be in the details, but this preliminary recommendation sounds at least somewhat promising.

Second, the task force rightly recognizes the need to expand the scope of the foundational skills covered on the bar exam to include more than just legal analysis and writing. Among the skills to be encompassed by the projected bar exam of the future are legal research, factual investigation and evaluation (including fact gathering), client counseling and advising, client relationship and management, and negotiation and dispute resolution. It might be hard to imagine how some of these skill sets could be tested, but the task force foresees “uniform text- or video-based scenarios that require candidates to construct a written response or select the correct response.”

Third, the task force recommends that the next generation of the exam should be “a computer-based test, administered either on candidates’ laptops in jurisdiction-managed facilities and/or at computer testing centers managed by a suitable vendor.” The pandemic forced many state bar examiners to abruptly adopt computer-based testing. It makes sense for myriad reasons to move in the direction of computer-based testing and to do so as part of a deliberate and careful process.

Having said all that, there are at least two aspects of the task force’s recommendation that strike me as problematic—or at least present the risk of inadequate or counterproductive reform to the bar exam.

First, as mentioned earlier, there is the question of why the bar exam should continue to test legal knowledge in all seven of the MBE subject areas. Testing knowledge of such a large number of subject areas is especially problematic when considering that, by all appearances, the exam would remain closed-book. As Professor Deborah Merritt has cogently explained here, if the bar exam of the future needs to remain a closed-book exam, then the doctrinal portion of the exam should cover no more than a basic understanding of U.S. legal processes and sources of law or a single substantive subject. In arguing for an open-book exam, Merritt correctly points out that “new lawyers simply don’t work from memory. Instead, they internalize basic principles that allow them to identify issues in a client problem and find the specific rules they need to address that problem.”

Moreover, the empirical data on job activities of newly licensed lawyers, gathered during Phase 2 of the task force’s study, reveals that both experienced and newly licensed lawyers rated knowledge of Torts, Constitutional Law, Criminal Law, Criminal Procedure, and Real Property Law as only moderately important (all receiving an average rating of 2.2 or lower out of 3). They rated knowledge of all those subject areas as less important than knowledge of Statutory Interpretation Principles or Statutes of Limitations (both receiving an average rating of 2.3), neither of which is included as a stand-alone subject to be tested on the task force’s vision of the bar exam. To be sure, Civil Procedure (2.6), Contract Law (2.6), and Rules of Evidence (2.5) all received noticeably higher average ratings. Perhaps one or more of only those subject areas could be tested.

Second, on a more micro level, is the peculiar fate of one specific knowledge area: Statutory Interpretation Principles. In phase 3 of the study, the task force proposed that Statutory Interpretation Principles should not be tested as a stand-alone subject but rather could be subsumed under the Constitutional Law subject area and the skills portion of the exam. The suggestion that statutory interpretation can be subsumed under Constitutional Law is a dubious one. Rarely does a court do a deep textual dive into the precise phrasing of a constitutional provision as courts routinely do when confronted with a question of statutory construction. Moreover, questions on substantive knowledge of constitutional law will routinely call on knowledge of Supreme Court precedents, not on dissection of the text of a constitutional provision.

Statutory interpretation is plainly distinct from constitutional interpretation in critical ways. Hence, I trust that the skills components of the bar exam of the future will include not just cases as sources of law, but also statutory and regulatory provisions (cutting across many different substantive subject areas) which applicants have to dissect and interpret. Based on what I’ve heard from the task force, I am optimistic on this point. I discussed the extent to which statutory sources are used on the performance test, currently the only exclusively skills component of the bar exam, in an earlier post here.

In sum, much is uncertain and will take shape over time. But the early indications give some reason to be cautiously optimistic about the NCBE testing task force’s vision of a new bar exam.

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