Developing Skepticism as a Skill – Some quick thoughts on why academic support should be thought of as separate from bar preparation/bar support

This summer’s bar exam with its uncertain timing, combined with the impact of the pandemic and the growing movement to transform parts of the legal system, brings to the fore the impact of the bar exam on legal education.  The pandemic itself has adversely affected student learning generally.  The pandemic’s adverse impact exacerbates the problems associated with teaching to the bar exam, which can best be described as when a law school directs its focus to a narrow range of subjects. This narrow focus subsequently influences student learning and choice as well as the type of support we provide to students. If for no other reasons than these, academic support ought not to have as its focus helping students pass the bar; that bar exam focus should belong more uniquely to bar prep faculty.

The bar exam is an enormous hurdle, no doubt.  Through hundreds of questions over two or three days, it tests one’s basic knowledge of black letter law of roughly fourteen subjects or seven topics and pages of sub-topics depending on how you count.[i]  Generally, those MBE subjects include contracts and sales; constitutional law; criminal law and procedure; civil procedure; evidence; real property, and torts. Any jurisdiction that offers the MEE has essay questions that cover, in addition to the MBE topics, Conflict of Laws, Family Law, Trusts & Estates, and Uniform Commercial Code.[ii] Notice that these topics are fairly related and tend to cluster, though not entirely, in the general commercial law and litigation area with some exceptions. Of course, each state may have its own requirements. And, for students, preparing for this exam can be a costly undertaking. Multiple vendors provide preparatory materials, advertised online at between $1900 and $4200. Because passing this exam is still the door (in most cases) to licensure, supporting student success on the bar exam is obviously vital.[iii]

Given that the bar exam has been offered in some form from as early as 1738 (in Delaware) and in its present form by the NCBE since 1972, and that the topics tested by the bar examiners have been consistent since that time,[iv] my bar prep colleagues have essentially committed to memory all of that material – so much so, that at any given time, they can say to our students: “that topic has been assessed on every bar exam since 2000,” or “you’ll need this for the bar exam,” or “you don’t need to know that for the exam.” Those colleagues are expert in approaching the bar exam and provide tools to help students approach bar exam essay questions – both reading them and writing responses, and ways to approach multiple choice questions.  And, one of the most often heard suggestions for studying is to keep taking the practice questions.

But, there are other areas of law: Administrative Law, Environmental Law, Immigration Law, Mental Health Law, Bankruptcy Law, Indigenous Peoples Law, Disability Law, Poverty Law, Pensions and Benefits Law, Maritime Law, International Law, Intellectual Property Law, Copyright Law, Cyber/Cybersecurity Law, Identity Justice Law, Health Law, Employment Law, Voting Law, and Tax Law, to name just a few, that are not tested on the bar exam in most states. And now, there is this extraordinary transformational legal change in which we find ourselves. This long list of topics and current events beg the question(s!): ‘If we focus our attention on preparing[v] students for the bar exam, this exam with this same set of topics,[vi] what are we, as members of the legal profession saying about the law?[vii]  If our best advice is to keep taking the practice questions that lead to the same result, what are we saying about the law?  About the importance of other areas of law?’

I am confident my bar prep colleagues are doing excellent work preparing students for the bar exam.  I recognize the examiners have added practice components. I’m not saying we should add questions, though, law has developed significantly over the decades; and, I am not arguing we should not have a bar exam – although given the responses of various jurisdictions to the pandemic, there’s an argument to be made.[viii]

Putting aside whether a future bar exam should look like the one given now, what I am saying is that academic support should not focus on a bar exam. Actually, most academic support situations arise in one’s first year of law school – far distant from the bar exam. Academic support can help students learn to be skeptical and not accept the given response, to sit with ambiguity (not the ‘answer’), and to write not only proof of a conclusion, but also to write toward a developing understanding. Someone who provides academic support for law school success should not address the idea of whether a student would need something for the singular purpose of the bar exam. Instead, the person who provides academic support should encourage the student to do and learn more, both for their time during law school and after.

I recognize that many faculty teaching doctrinal courses take upon themselves the task of helping students learn the complexity of laws as well as skills needed to succeed in law school. In recognition of both the need for these skills and difficulty of incorporating them into the 1L, Harvard Law has developed the Zero-L program that introduces students to the framework around law as well as other basic skills[ix]. Even then, however, trying to fully develop such skills in a doctrinal course, especially 1L courses, is difficult. In using the Socratic method, in many instances, the professor either winds up passing over particular students or calling out particular students. Either way, the larger class does not benefit, because either the material is not covered or the class slows. Additionally, the individual student does not benefit, either because they are humiliated or stigmatized. Moreover, those who teach “bar courses,” feel compelled to devote as much time as possible teaching the material that will be covered later on the bar exam itself, leaving little time to devote to helping students at the edges of a class.[x]  This alone, this classroom and school-wide focus on the sub-topics of a course that the bar exam will test is troubling, even if practical, under the present circumstances. Academic support, though, need not focus on those same topics. Academic support can help students in some of the other levels of thinking while in law school and provide support about approaching legal topics that are less well settled than, say, “the rule against perpetuities” (that was tested as recently as 2013 – I think.)

If it is the case that one of the best ways to learn material is to practice it, to take practice “assessments,” then students will learn their material by doing just that, and practice assessments are a recognized tool for mastering a body of material.  However, learning a body of material alone is not enough for success in law school.  While academic support can certainly help students build techniques for understanding and remembering, analogizing, and distinguishing, it is uniquely positioned to explicitly help students develop the skill sets beyond memorizing such as: how to figure out what questions to ask rather than answer, and how to challenge or critique a response. Take for example a skepticism skill. Here, in addition to teasing out what a court says in a decision, students learn to ask whether what a judge says is itself supported by proof; if so, what proof, and does the proof survive the “Aw come on” test.[xi] This skill is, of course, developed in class, but students at the start of law school often confuse skepticism and critique with their own opinion. At some point, class moves on, but the students can still benefit from support – not in the doctrine itself, but in skepticism. This skepticism skill need not be topic specific and is less likely to be useful on a bar exam than other skills, but will serve them remarkably well in practice.

Academic support can of course be, and is, many other things for students.  I’m not suggesting those things change. I’m simply suggesting we think about bar support doing what it is meant to do: prepare students to take multiple choice and essay questions on a set of the same topics semi-annually.  And then, we can think of academic support as designed to help students thrive while in law school itself.

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[i] http://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F226   I have not included questions of the different states for their particular licensing.

[ii] The questions are drafted by the NCBE with the assistance of academics and experts in the fields being tested. The answers, as seems obvious, are based on law existing at the time the questions were created.

[iii] We support students with bar preparation programs and classes. As to the latter, the ABA has put its imprimatur on bar support to the extent of permitting students to take, as part of their academic program in law schools, with several credits of bar preparation classes depending on jurisdiction.  Bar support classes have become an integral part of law school programs.

[iv] Assessing the bar exam itself an ongoing task with studies in several states to assess the efficacy of the test format and connection to skills of practice. https://www.abajournal.com/news/article/members_of_abas_commission_on_the_future_of_legal_education_named  (2017);   https://www.abajournal.com/web/article/building-a-better-bar-exam (2020).  The National Conference of Bar Examiners has its own task force to assess the efficacy of its test. https://testingtaskforce.org/. It is schedule to release a report based on its September survey of Practice Analysis. Thus, the bar exam and bar success occupy a lot of space and time during law school.

[v] We also support student success with a growing number of student-wellness programs, and this in turn is supported by the ABA Young Lawyers Division that has a health and wellness division with resources available to law schools and their students as well as lawyers.

[vi] Topics tested for the past fifty years, though, civil procedure was recently added.

[vii] Never mind the practice of law. At law schools, we help students develop “practice ready” skills in clinics. While it appears the majority of clinics which are litigation-focused clinics, and the subject matter is far broader than the corporate-commercial law bar topic focus, there are so few if any clinics on developing policy, on ethical lobbying, or on transnational practice.

[viii] There are also arguments that the bar exam topics overly emphasize areas of law in the commercial law context to the detriment of other areas of law.

[ix] https://online.law.harvard.edu/.  This year, with the coronavirus, Harvard is offering this program “for free” to other schools. https://taxprof.typepad.com/taxprof_blog/2020/05/harvard-makes-online-zero-l-course-free-for-all-us-law-schools-due-to-coronavirus.html.

[x] And, this idea of ensuring bar coverage is common.  https://jle.aals.org/cgi/viewcontent.cgi?article=1299&context=home

[xi] I am sure this phrase, “aw come on” has been used over time by many.  I first heard it from a professor I had in a first-year, year-long contracts class.

One Response

  1. Skepticism, yes, and even pessimism. Someone recently postulated that whereas most professions are grounded in optimism (think M.D.s), lawyers are basically pessimists who are paid to anticipate problems to be avoided.

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