Dean Darby Dickerson — on Equity, Security, and Status

Many of us were inspired to hear AALS President Darby Dickerson, Dean, UIC John Marshall Law School speak about “caste”, “candor”, and “change” during her address at the January 2020 Annual Meeting.

In this new article, first posted in the AALS Newsletter, she follows up with some worrisome data from the 2019-2020 CSALE study, works through potential harms to schools and students, and issues a call to action to address issues of pay equity, security, and status.

We value the conversations and discussions that often happen live and informally at in-person conferences as we share our progress (or lack thereof). So, dear readers, please let us know in the comments about any promising practices or initiatives at your schools. How are leaders addressing pay equity, security, and status in an era of hiring freezes and financial insecurity? What changes are you working toward?

Warmly,

Davida and Melanie

Could We Create a New Bar Exam?

Deborah Jones Merritt, Distinguished University Professor and John Deaver Drinko/Baker & Hostetler Chair in Law, The Ohio State University.

A few weeks ago, Logan Cornett and I published a major study of the work that new lawyers do—as well as the knowledge and skills they need for that work. John Lande has already offered two thoughtful posts about the study (thanks, John!). We think the research offers important information for legal educators, bar examiners, and workplace supervisors: we need to align education, licensing, and supervision to improve the service that new lawyers provide clients.

Will it be possible to achieve that alignment? In particular, can we make the bar exam a more valid assessment of the knowledge and skills that new attorneys need? I hope so. Neither states nor the National Conference of Bar Examiners (NCBE) have ever validated the current exams; that means we have no evidence that the skills and knowledge assessed on the exams match the ones that new lawyers use in practice. NCBE’s current attempt to validate the exam—through survey evidence—does not capture sufficient detail about the ways that new lawyers use their knowledge and skills in the workplace. Our study, based on 50 focus groups held in locations across the country, provides those more detailed insights. Combining our findings with those from NCBE’s study and other research could yield a valid licensing process.

An invalid exam would be embarrassing enough for a profession that prides itself on logic and reason, but our current bar exams have another flaw: they pass white candidates significantly more often than candidates of color. An exam that has never been validated, yet discriminates against candidates of color, is unthinkable in the modern age—and yet, we have tolerated these exams for decades.

It’s time to change, but will we have the courage to do so? Our profession has a deep attachment to closed-book exams, multiple choice questions, and time-pressured tests. The research that Logan Cornett and I did convincingly shows that none of these assessment methods are appropriate for the legal profession. Entry-level lawyers work from sources, not memory; they gather information to solve open-ended problems rather than choosing one canned answer from four; and, although they often practice under time pressure, the time constraints on the bar exam are dangerously unrealistic.

We need to challenge all three of these obstacles to a valid licensing process. Our report suggests many ways to accomplish that end. Here’s just one modest proposal that would significantly improve the validity of the bar exam:

  • Maintain the Multistate Professional Responsibility Exam (MPRE), which tests knowledge of basic principles of professional conduct, but make the exam open book. No one can wind their way through the dense rules of professional conduct and commentary without previous study, so an open-book exam won’t make the test “too easy.” On the contrary, an open-book exam would encourage new lawyers to check the rules and commentary whenever they face a conduct issue. That’s a habit we want to encourage, not discourage.
  • Maintain two performance tests like the ones currently prepared by NCBE, but allow 3 hours (rather than 90 minutes) for each test. Expanding the time frame would make these tests more realistic measures of minimum competence. It might also make grading more reliable because graders would be faced with real-world products produced under realistic time constraints.
  • Create a 3-hour research exam that consists of multiple-choice or fill-in-the-blank questions. This exam would test the kind of quick research that lawyers do routinely: What is the statute of limitations for medical malpractice in Ohio? Does a will need witnesses to be valid in Texas? Give candidates access to any online tools they desire to do this research.
  • Create a 3-hour, multiple-choice exam that tests (a) basic understanding of U.S. legal processes and sources of law OR (b) a single substantive subject (such as civil procedure, contracts, business law, or family law). If the latter, consider giving candidates a choice of the area in which they wish to test.

Our research suggests that the final doctrinal component of this exam should be open-book; 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. But if bar examiners insist on a closed-book exam component, they could make this portion of the exam closed-book. Memorizing the rules related to a single subject—especially if the subject reflects an area in which the lawyer hopes to practice—more closely parallels the work that new lawyers do than memorizing the rules that govern ten or more fields.

A bar exam with the four components listed above could be administered according to our current schedule. I.e., candidates could take the MPRE on one occasion and the other three components over two days in late July or February. Alternatively, the proposed exam could be divided into five different components (the MPRE, each of two performance tests, the research test, and the doctrinal test) and states could allow candidates to take the components at different times and in any order. Breaking the exam into components would relieve some stress and give candidates more flexibility. It might also allow candidates to determine, while still in law school, that they lack skills needed for law practice—and either choose a different career or remedy those deficiencies through more coursework.

Our report offers other options for licensing, including a rigorously structured diploma privilege. We also recommend that states complement any written exam by requiring candidates to complete law school clinics and courses in client counseling and negotiation. Those experiences assure instruction, practice, and feedback on skills that are difficult to test through a written exam.

It’s time to get serious about aligning legal education and licensing with the work that new lawyers do. Only then will we fulfill our mission of protecting the public.


Virtual Practice/Virtual Externships: Past, Present and Future

By: Dena Bauman, UC Davis; Gillian Dutton, Seattle University; Kendall Kerew, Georgia State; Chipo C. Nyambuya, Loyola Chicago; and Amy Sankaran, University of Michigan

When we proposed a concurrent session focused on remote externships in November 2019 for the March 2020 Externships 10 Conference, we expected to be exploring a novel field placement arrangement, that of students working from a different location than their supervisors, and/or remote from the physical site.  A few months later, at the very time the conference was originally scheduled, we found ourselves in a global pandemic. We were living in the environment we planned to explore.

Overnight, our “novel” work arrangement became reality. Students were working remotely from both the law school and from field placements and supervisors. We planned to “model” a Zoom supervision meeting for panel attendees. Overnight, virtually all law school faculty, law students and field supervisors were relying almost exclusively on Zoom and other video conferencing platforms for classes, work at field placements and site visits.

Survey on Working Remotely and “Best Practices” Template:

Per our November 2019 proposal, we planned to survey the externship community about their current practices and rationales regarding remote placements. We also planned to create and distribute a template to use in evaluating and making decisions about virtual externship sites and advising students. We are linking to the template.

We distributed a revised survey through the national externship list serv in September 2020 that took a “snapshot” of practices before and during COVID. It also asked externship clinicians to consider what they might do post-COVID. [1] We used the 81 responses to create a template for assessing potential virtual placements and distributed the template at our rescheduled panel on October 23, 2020 along with a brief summary of the survey.  We used these three definitions.

  1. Traditional remote placement: Student and site supervisor physically present at the site, but remote from the faculty member.
  2. Remote supervisor placement: Student physically at the site but separate from the supervisor.
  3. Virtual remote placement: Student physically separate from both the site and supervisor.

We are including several tables summarizing the primary survey findings. The complete data report is linked here.

Pre-Pandemic: Few Schools Allowed Virtual Remote Placements but Many Allowed Traditional Remote Placements

Type of Placement AllowedPercentageNumber
Virtual remote10.78%11
Traditional Remote60.78%62
Remote supervisor11.76%12
None of the above16.67%17
Reason for not permitting remote placementsPercentage of SchoolsNumber of Schools
Students would not have the same immersive experience30.59%52
Students would not get the same or complete learning opportunities36.47%45
Supervisors would not give adequate feedback17.06%29
Reasons for allowing remote placementsPercentage of schoolsNumber of Schools
Benefit part-time/evening students19.44%7
Supervisors work in a different location16.67%6
Evolution of law practice16.67%6
Student want to work in virtual environments13.89%5

During the Pandemic (as of date of survey):  No Schools are Barring Remote and/or Virtual Placements

In response to the pandemic, we asked schools whether they were permitting a traditional remote placement and/or a virtual remote placement. 80 schools, out of the 81 respondents, permit virtual remote placements. 69 schools are permitting students to work apart from the faculty but are on site with the supervisor also present.

Another question asked why they were permitting these new arrangements. The three top reasons were:

ReasonPercentage of SchoolsNumber of Schools
Externship sites are closed or ask students to work remotely45.65%63
Students asking to work remotely for caregiving or other reasons31.16%43
Law school requirements10.14%14

Law school comments included: students need to complete graduation requirements, confidence that students are getting adequate supervision and experience in a new work environment, distance and traffic, and public health and safety concerns.

Nearly ¾ of the law schools said the changes have been both beneficial and problematic. As the pandemic continues through the fall, likely into the spring, and perhaps beyond, we will continue to learn much more about those changes.

Post-Pandemic: Training will be a Priority in Permitting Virtual Placements

Schools predict that training requirements for law students and field supervisors will be an important condition for considering virtual placements after the pandemic has passed.

RequirementPercentage of SchoolsNumber of Schools
Externship program will train students in remote work 22.73%50
Sites must demonstrate training for attorneys and students12.27%27
Supervisors must agree on training from externship programs11.36%25

Faculty Anticipate a Case-by-Case Approach

Factors that schools would consider in assessing the virtual and remote placement include family, health, financial and geographical circumstances, as well as the availability of the experience.  Schools also noted that it is too early to know if and how law practice will change, but that consideration is important in preparing our students for their careers. Additionally, we also realized that we need to scrutinize and analyze this nearly overnight reliance on technology in practice. Our presentation discussed these issues, such as access to technology and roles at home.  We will discuss those issues, and how they will affect our preparation of students for their post-graduate careers, in another posting.

Summary:  We believe our survey is a good starting point for future assessments, even as the pandemic continues to upend legal education and law practice.  Our template, which was favorably received at our panel, will help externship clinicians make decisions for placements and students, gather reasonably consistent information that they can use, and share with the community to build a record of useful information. Post-pandemic, we will depend on each other to share information about what we are contemplating and are implementing regarding virtual placements.


[1] Thanks to Inga Laurent, Gonzaga University School of Law, Theodora Pina, Santa Clara University School of Law, Sue Schechter, UC Berkeley School of Law and June Tai, Iowa College of law for their review and suggestions regarding the survey instrument.

Study Finds That Law Schools Fail to Prepare Students to Work with Clients and Negotiate

I previously posted an overview of the excellent report by Ohio State Professor Deborah Jones Merritt and Institute for the Advancement of the American Legal System Research Director Logan Cornett, Building a Better Bar: The Twelve Building Blocks of Minimum Competence.  This report is based on insights from 50 focus groups with 201 participants conducted in 2019-2020.  Forty-one focus groups involved new lawyers and nine focus groups involved lawyers who supervised new lawyers.  “New lawyers” were licensed mostly in 2016-2018.

This post provides detailed excerpts (without footnotes) from the report about new graduates’ unmet needs for instruction in interacting effectively with clients, negotiation, and understanding the “big picture” of client matters.

New Lawyers Were “Woefully Unprepared” to Work with Clients

More than half of the new lawyers in the study worked directly with clients.  And they were not ready for this.

“[They] described three clusters of abilities that they needed to work effectively with clients:


            “1. The ability to gain a client’s trust, gather relevant facts, and identify the client’s goals.


            “2. The ability to communicate regularly with clients, convey information and options in terms that a client can understand, and help the client choose a strategy.


            “3. The ability to manage client expectations, break bad news, and cope with difficult clients.  (p. 52)

“Gathering facts from clients was especially challenging for new lawyers.  In law school, one new lawyer explained, “they give you a set of facts” and “those are the only facts that exist in the world.”  In practice, she had to develop the skill of “getting more facts from the client and knowing which facts to ask for,” as well as the ability to “phrase questions to clients in a way that they understand what kind of information you’re trying to get, and they give you the information that’s actually useful to you.”  Supervisors agreed that new attorneys needed to do more “fact digging” with clients, “going back to ask some more questions to get really to the bottom of what’s happening.”

“Deciphering client goals was equally important. “Sometimes,” one supervisor reflected, “we don’t ask the client, ‘Well, what does victory look like?  What’s your goal here?”  Another supervisor agreed that new lawyers don’t pay enough attention to client goals:

“One thing that I noticed that a number of the young lawyers struggle with, which is helping a client get to yes.  Which is not, ‘well the law says this, so no, you can’t do that.’  [Instead, we need new lawyers to say]  ‘The law says this.  So if you want to accomplish your business goal, you will need to do these things.’  . . . Clients are not looking for us to tell them what they cannot do.  They’re looking for us to help them understand how to accomplish their business objectives.

“Several new lawyers elaborated on the same theme.  “I didn’t really understand,” a new in-house lawyer commented, the importance of “trying to understand the goals of what our business clients want to do.  Just because they have a certain idea of how to do it that may not be legal doesn’t mean we can’t find something legal to do, to try to get to the same result.”  Participants in another group nodded in agreement when a lawyer at a mid-sized firm observed: “we have to figure out this meandering way of getting to where they want to go that’s legal, so just asking the right questions so that you know what their actual final goal is” allows you to “get there in a way that actually makes sense.””  (pp. 53-54)

New Lawyers Had Difficulty in Communicating with Clients

After three years of law school, new lawyers had serious problems communicating with their clients.  We teach them to argue.  Listen and communicate effectively with clients, not so much.

“New lawyers in our focus groups described their need to communicate frequently with clients, especially when clients lacked experience with the legal system. “The number one complaint from clients of lawyers,” one declared, “is lack of communication, or poor communication, and not being told what the hell is going on in their case.”  “Especially in the discovery phase,” he continued, clients don’t understand the demands placed on them or the slow progress of the case. Taking time to “touch base” and offer “a lot of handholding” was essential for building client relationships.

“Equally important, new lawyers had to learn effective counseling skills.  Several contrasted their advocacy skills with advising ones.  They “felt very confident” with the former but not the latter.

 . . .

“Other new lawyers described learning how to “coach [clients] through a tough choice,” and helping them assess the costs and benefits of each course of action.  “I do that all the time with my clients,” a new lawyer from a small firm noted, “just like laying out like these are all the possibilities and their likelihood.  Do you really want to do this or do you want to walk away from it and just like call it a day?””  (p. 54)

Lawyers Had Problems Managing Expectations, Breaking Bad News, and Coping with Difficult Clients

In practice, lawyer serve clients who are real people, not the two-dimensional characters who populate law school textbooks.

“Some new lawyers in our focus groups grappled with clients living with mental illnesses, trauma, and other life challenges.  Counseling these clients was difficult, especially when delivering bad news.  “Somebody can know the black-letter law inside and out,” a bankruptcy lawyer observed, “and then their first day on the job they are sitting in front of somebody who is incredibly worried, incredibly anxious.”  There “hasn’t really been any formal training,” he continued, “on what do you do when this person’s on the brink of tears and you have to take him in front of the judge.”

“New lawyers in our groups had to overcome their initial desire to please clients, learning to deliver bad news candidly.  “It was a really hard skill for me to learn,” a new family lawyer admitted, “because I was kind of a pleaser at first. . . . But now I don’t really care if they don’t like what I have to say and advise them. I tell them they didn’t hire me to be a cheerleader.”  Another new lawyer learned to be “straightforward” about problems because his attempts to “tiptoe around” them led to misunderstandings.”  (p. 55)

New Lawyers Need Specific Communication Skills

The study found that “the current licensing scheme overlooks five key facets of [communication] competency.”   New lawyers must be able to:

  • “Communicate concisely;
    •          Communicate in language that clients understand;
    •          Choose communication methods that are effective for each audience and setting;
    •          Attend carefully to communications from others; and
    •          Negotiate effectively.”  (p. 65)

“New lawyers struggled to find the appropriate words for communicating with clients.  Even “practical” law school classes, one observed, “didn’t teach us how to talk to clients, how to get someone who’s charged with some heinous event to trust you well enough to tell you what’s happening.”  A prosecutor confessed: “One skill that actually I didn’t think I would need that I still don’t feel like I really have is talking with victims.  It’s definitely a skill and I’m not great at it.”” (p. 66)

“Effective communication requires reception as well as transmission.  Many focus group members faulted new lawyers for failing to attend carefully to messages sent from others.  They often referred to this problem as a failure to “listen,” but it was clear that the failure could occur either in written or oral communication.”


““Listening is vital,” one supervisor declared:

“”But a lot of new lawyers don’t seem to have that and maybe it’s maturity, but I think it’s something that can be practiced.  You need to listen to what your clients are saying.  You need to listen in our area to what members of the public are saying.  You need to listen to what the other lawyer at the other end of the phone is saying to read between the lines, ‘what does that lawyer really want?’” (p. 68)

New Lawyers Need Skills Negotiating with Counterparts, Clients, and Others

New lawyers are unprepared to negotiate because they are trained almost exclusively to argue.

“Focus group members identified negotiation as a distinctive communication style that was essential for their work.  Negotiation, they noted, is quite different from advocacy.  As new lawyers, they had to learn to “be collaborative,” “give a little to get a lot,” and “work together” with opponents.  The “litigious” argument styles they learned in law school did not work well during negotiations.

“In addition to negotiating with opposing counsel, new lawyers had to negotiate with union agents, pro se opponents, and their own clients.  One new lawyer working in-house even negotiated fee arrangements with outside law firms:

  •          “I do a lot of labor negotiation.  So it’s interesting because sometimes it is another attorney on the other side, but a lot of times it’s a business agent for a union who’s not an attorney.  So I guess approaching that in different ways has been an interesting thing to learn.”
  •          “Sometimes negotiating with your own clients on what we’d be willing to accept on a civil case, they think it’s worth a ton of money and you’re . . . trying to negotiate them to a reasonable place because ultimately going to trial wouldn’t really benefit them.”
  •          “Being in-house counsel, . . . the first negotiation is getting all the executives on board with the same deal.  Getting them all to agree that we should go after this deal on these terms is sometimes a bigger battle than negotiating it with opposing counsel afterwards.”
  •          “I remember one of my first discussions with my boss at the time and asking, he was like, ‘Reach out to outside counsel if you need to, talk about budget and things like that.’ . . . And so, that’s something that I had not done as far as negotiating price and what we can pay.”

“Several new lawyers wished they had taken negotiation classes in law school; a few suggested these classes should be required.  One tax attorney explained that, as someone who planned to do transactional work, he thought negotiation and mediation classes were only for people who planned to “do that for a living.”  Only after beginning his practice did he realize how much time he spent negotiating with clients and colleagues;  then he wished he had been encouraged or required to study negotiation in law school.

Supervisors agreed that “negotiation skills are huge,” and “absolutely important” in law practice.  One supervisor observed, “What I see lacking is the ability to negotiate provisions into a contract. . . .  [New lawyers] know the elements of different types of laws.  It’s just the question of negotiating contracts, or just negotiating in general, that seems to be lacking.  Which is what we spend a lot of time [doing].””  (pp. 69-70)

New Lawyers Need to Understand the “Big Picture” of Client Matters

Law students mostly learn little disconnected pieces of the law but not how to understand the “big picture” of their cases and act accordingly.

“Focus group members urged that lawyers must see the “big picture” in client matters to represent clients competently.  New lawyers, they suggested, often lack that ability.  One supervisor summarized this perspective by observing that new lawyers need “to think more at the forest level and less at the tree level.”  A new lawyer offered a similarly graphic explanation. “It took a few cases, seeing the full life cycle of the case, to really understand strategy,”

“A lack of experience with “forests” or “maps,” according to our focus group members, caused at least two problems.  First, without the ability to see the big picture, new lawyers could not effectively manage projects.  When given responsibility for their own cases, which was common in many organizations, they struggled to manage those cases.  Even when working as part of a larger team, they sometimes missed critical deadlines because they did not understand the full project’s timeline.

. . .

“Failure to understand the big picture caused a second failing among new lawyers: they had difficulty developing strategies to guide client matters.  These new lawyers knew the rules, but they did not know how to combine the rules into a successful strategy.”  (pp. 72-73)

Recommendations for Required Courses in Working with Clients and Negotiation

The report recommends that all law students take three credits to develop working with clients and three credits of negotiation.

Recommendation Six:  Require candidates to successfully complete three academic credits of coursework that develop their ability to interact effectively with clients.  These credits should focus specifically on client interaction and should include opportunities for students to practice that interaction and receive feedback.  Instructors should understand that successful completion of the course signifies that the student possesses the ability to interact effectively with clients as an entry-level lawyer.

Recommendation Seven:  Require candidates to successfully complete three academic credits of coursework that develop their ability to negotiate. These credits should focus specifically on negotiation and should include opportunities for students to practice that interaction and receive feedback.  Instructors should understand that successful completion of the course signifies that the student possesses the ability to negotiate effectively as an entry-level lawyer.”  (p. 98)

This post includes a list of ABA books that address these needs.  Marjorie Corman Aaron’s excellent book, Client Science, provides empirically-based advice for lawyers about counseling clients when giving bad news.  In this piece, I argue that law schools should teach students to think strategically, which is really what it means to think like a lawyer.  And my co-authored book, Litigation Interest and Risk Assessment:  Help Clients Make Good Litigation Decisions, helps lawyers work with clients to get the big picture of their cases, and to develop good litigation, negotiation, and mediation strategies.

Messages for Students

The report finds that pursuing continuous, self-directed learning is an “essential component of minimum competence.”  (pp. 80-82)

In my view, law schools should incorporate this from the outset.  Unfortunately, law schools emphasize external motivation so much that it can overwhelm students’ internal motivation to learn.  The hidden curriculum in legal education teaches that the most important criteria are curved grades, competitions, certificates, law review, clerkships, prestigious jobs, etc. etc.  This not only sends the implicit message to the “bottom” 90% of the class that they aren’t very good, but it also distracts students from taking the initiative to develop skills they will need in practice.

Faculty should counteract the hidden curriculum by repeatedly emphasizing that simply getting a law degree isn’t sufficient to be a competent new lawyer, and that students should continuously assess and address their learning needs, starting in law school.  You might require students to read this post and encourage them to read the full report.

Our Students are Stressed; Exercise Compassion

At the best of times, the life of a law student is stressful. Law students, like lawyers, are over-represented in reported statistics of depression and anxiety. Because law schools know the pressure their students are under, it has become common practice to provide stress-reducing interventions – mindfulness training and yoga classes come to mind.

This November, the political climate and an enduring pandemic will add to the high baseline of anxiety and depression that law students experience.

The 2020 election, at the very least, will feel like the most consequential election our students have experienced. Students will, of course, be aware of the political discord that is dividing our country. The discord may also be dividing their friendships and families. For young people finding their way in life, this is unsettling.

Law students may engage in behaviors that give them a sense of control over the election outcome. This is a good thing and should be encouraged. They can vote (assuming they are not casualties of some vote suppression strategies), support the candidate of their choice, or work at the polls. But even doing these basic things, the outcome of the election is likely to feel uncertain, uncontrollable and yet highly significant for students’ future. The combination of these factors is recipe for stress.

Compounding the electoral stress is the global pandemic. The coronavirus has disrupted students’ education, turned the typical law school experience on its head, and ripped away the one thing we all need when feeling anxious and depressed – a social network we can talk to, gain support from, and re-center our perspective of the future. And remember those mindfulness and yoga classes designed to help students’ well-being? Without being on campus or in the classroom, those have been relegated to afterthoughts for law school.

These are the reasons why now more than ever we need to exercise compassion. Compassion is more than empathy, an ability to take the perspective of others, to understand what law students are feeling. That’s a start. But compassion is when our feelings motive us to help alleviate at least some of their suffering.

Here are four things I’ve identified that I can do to support my students. Please feel free to share your own ideas by commenting on this post.

  • Laughter: Organize a lighthearted online pop quiz with your students. Inject humor into some of the material they should review. Avoid political humor, of course. Don’t worry if you’re not a trained comedian. Laughing at yourself for creating such bad jokes is also stress reducing.  As you can probably guess, there are many online resources to consult for anything from the best legal puns to the worst dad jokes.
  • Exercise: The thing we least want to do is often what we should do. As the weather turns colder – at least in my State – exercise becomes less appealing. But the science has become undeniable – exercise reduces stress. Assign a podcast and encourage your students to listen to it while exercising. Have students share their methods for working exercise into their day. Some of my students shared their plans to “commute” to class everyday – walking from and to their apartments before and after class.
  • Support the Right to Vote: If you haven’t already, give your students the Day off on Nov. 3rd, with no make-up class required.
  • Support each other: When we are kind, generous, and supportive of our friends and colleagues, we can make a difference in their well-being. I usually have my clinical students review their peers at the end of the semester. Each student provides me with their feedback for each of their peers. They must answer two questions. First, what do you admire most about Student A. Second, what is one thing Student A could do to improve. Each year I give this assignment, I’m amazed by how thoughtful my students are. And after I compile the feedback and communicate it to my students in an end of semester meeting, my students seem overwhelmed by the admiration and positive feelings their peers have for them. Of course, if you are teaching a larger class where students don’t get to know each other well, you could be the one to deliver a positive message about something you admire about them.   

Looking Ahead: The Performance Test on the Bar Exam Post Covid-19

Even amidst great uncertainty as to how the Covid-19 pandemic will impact future bar exams, we have already seen a few “when the dust settles” articles addressing how best to move forward with bar exams after the effects of the pandemic have waned.[i] While there are justifiable calls to rethink the exam entirely, especially in light of disparate outcomes based on race,[ii] multiple commentators have highlighted the need to enhance the exam’s focus on the performance test.[iii]

A telling indicator of the importance of the performance test appears in the Phase One Report of the National Conference of Bar Examiners’ (NCBE’s) Testing Task Force, which is conducting “a 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.”[iv] Among the points made most frequently by various bar exam stakeholders during listening sessions were the following: “The MPT [Multistate Performance Test] is the strength of the current exam” and “Lawyering Skills should be emphasized over subject matter knowledge.”[v] The performance test remains the only vehicle on the bar exam that directly evaluates lawyering skills and not subject matter knowledge of—some would say rote memorization of—law, which is tested by both the Multistate Bar Exam (MBE) and essay questions. As such, it ranks high as to testing validity and has great potential as an evaluator of competence. 

The NCBE, which currently provides the testing instruments used on the vast majority of state bar exams,[vi] is an influential force in the bar exam world, and it approaches change at a glacial pace.[vii] Hence, there is good reason to think that, while the pandemic might lead to changes in the manner of exam administration (e.g., remote administration in lieu of in-person), the heavy majority of states will continue to use the NCBE’s three tests: the MBE, the Multistate Essay Exam (MEE), and the MPT. Hence, a closer look at the most important of those three, the MPT, and ways in which performance testing can be improved is in order. What follows is a review of the current status of the performance test on bar exams in the United States and some thoughts on enhancing performance testing moving forward:

What is the performance test, and what is its purpose?

A performance test assigns a specific written lawyering task (e.g. memo, brief, or a letter), to be completed by the examinee relying on a closed universe of provided factual and legal materials. Performance tests, unlike essay questions and MBE questions, require no advance memorization of doctrine, as they provide a Library, which includes all the needed legal authorities in the form of cases, statutes, rules, regulations, or some combination thereof. The facts are presented in the File, usually through assorted documents such as transcripts of witness interviews, correspondence, etc. The allotted time for completion of a single performance test is 90 minutes.

The performance test is a creature of the ABA’s landmark 1992 MacCrate Report, which called on law schools to enhance training in assorted fundamental lawyering skills.[viii] The NCBE responded to the MacCrate Report by crafting the MPT as an instrument to evaluate six of the fundamental lawyering skills listed in the report: (1) Problem Solving, (2) Legal Analysis and Reasoning, (3) Factual Analysis, (4) Communication, (5) Organization and Management of a Legal Task, and (6) Recognizing and Resolving Ethical Dilemmas.[ix] The NCBE began offering MPT items to jurisdictions in 1997.[x]

How is the performance test currently being used on the bar exam?

The NCBE continues to produce the MPT, and 44 states administer it on their bar exam.[xi] Thirty-six of those states administer two MPT items, pursuant to their administration of the Uniform Bar Exam (UBE).[xii] Some of the remaining eight administer one MPT, and some administer two. In addition, Pennsylvania creates and administers its own performance test,[xiii] as does California.[xiv] In total then, 46 states administer at least one performance test on their bar exam. Only Florida, Louisiana, Michigan, and Virginia eschew performance testing.[xv]

Is the performance test evaluating all of the MacCrate skill sets adequately?

As I discussed in detail in a 2015 article, the performance test is not living up to its potential, as typical test items implicate mostly just the core skill set of legal analysis and reasoning.[xvi] It remains not at all clear that the performance test is encompassing all six of the MacCrate skill sets on a consistent basis. Most notable among the skill sets that remain under addressed are (1) Problem Solving and (3) Factual Analysis. 

Problem Solving

The MPT occasionally implicates problem solving through a test item requiring an evaluation of multiple competing approaches to a given client’s problem—for example, MPT2 on the July 2019 exam, in which examinees had to evaluate the merits of two different estate planning approaches for a mock client.[xvii] In the last several years, neither California’s nor Pennsylvania’s performance tests has presented comparable test items. 

Factual Analysis

As to factual analysis, because the source materials in the File include both relevant and irrelevant facts, the performance test does a good job of testing an examinee’s ability to identify relevant facts within a given set of materials. However, among the core competencies encompassed by the skill set of factual analysis are determining the need for further factual investigation and planning a factual investigation.[xviii] Performance tests have not encompassed these competencies. Indeed, in the past several years, no performance test has tasked examinees with identifying what additional facts would be useful and drafting a discovery plan for obtaining those facts. 

To be fair, given that the performance text currently plays a limited role on the exam, it is perhaps not possible to consistently encompass all of the MacCrate-inspired skill sets. The addition of more performance tests, or multiple-choice questions within performance tests, discussed below, could help in this regard. 

Does the performance test make adequate use of statutes and regulations as legal sources?

Of course, statutes and regulations are central to much of law practice today—so much so that numerous law schools are requiring first-year students to take a course on legislation and regulation. It would seem beyond dispute that all examinees on every bar exam should be required to display competence in reading and applying a statute or regulation without the aid of a case interpreting the statute or regulation at issue.  Neither MBE questions nor MEE questions (nor state-specific essay questions) directly require examinees to do this. In contrast, the performance test easily can. Unfortunately, however, statutes or regulations (or comparable types of non-case authorities) do not consistently appear on recent performance tests—to say nothing of the four states that do not administer a performance test at all. 

To the NCBE’s credit, at least one of the two MPT test items in each exam administration since 2010 has included at least one statute, rule, or regulation.[xix] It is not clear the extent to which examines on these various MPTs needed to reason directly from the statute, rule, or regulation (as opposed to reasoning from a provided case that interpreted the statute, rule, or regulation) to resolve an issue, but a cursory review suggests in several cases that, to a goodly extent, they did. By way of example, one of the MPT items on the February 2015 exam included only a statute and regulations in the Library, and examinees were tasked with “parsing . . . HIPAA regulations” in order to answer effectively.[xx]

 In contrast, however, since shifting to the 90-minute performance test format in July 2017, California has included only cases as authority on its performance tests through the February 2020 exam.[xxi] This reflects a major failing of the California bar exam. 

The Pennsylvania examiners have done a better job, having deployed statutes as part of the law library on several different performance tests,[xxii] the first of which (February 2017) I highlighted in an earlier post. Still, though, given that there is only one performance test on each administration of the Pennsylvania exam, each Pennsylvania performance test with only cases (and there continue to be several of those[xxiii]) represents an exam that does not evaluate the fundamental competency of reading and reasoning from a statute, rule, or regulation. 

How can bar examinations make greater use of performance tests?

Ideally, all 50 states would administer at least a bare minimum of two performance test items on every exam. Though progress is being made toward that goal, we are not there yet. 

First, as noted earlier, four states do not administer a performance test at all. One can only speculate as to what reason, aside from inertia, leads the bar examiners in Florida, Louisiana, Michigan, and Virginia to forego a testing instrument of such value.

Second, as also noted earlier, several states that use the MPT outside the construct of the UBE, as well as Pennsylvania and California, administer only one performance test, not two. The use of two test items, as required for the UBE, affords an opportunity to evaluate a greater array of lawyering skills via the performance test. The use of only one relegates the performance test to playing a minimal role on the exam overall. By way of illustration, while the two MPT items in UBE jurisdictions count for 20% of the exam score, the one MPT item in Pennsylvania counts for only 11%, and the one MPT item in Nevada counts for only 10.5%.[xxiv]

Third is the broader question of expanding the use of the performance test beyond just two test items and the current 20% allocation on the UBE. As I noted in my 2015 article, this is a tougher challenge.[xxv] The MBE counts for such a large chunk of the score on the exam—50% in UBE and most other jurisdictions—because it is a psychometric anchor for the exam. In other words, the MBE has very strong testing reliability. As a multiple-choice exam that tests knowledge of various areas of substantive law, thereby calling for rote memorization, the MBE has weaker testing validity. In contrast, the performance test has high testing validity, but, because of its size and the subjectivity inherent in grading, has lower testing reliability. The NCBE prioritizes strong testing reliability for its products and hence allots greater percentages to the MBE and essay questions, 50% and 30% respectively.[xxvi]

There are many possible approaches that could allow for increased use of, and a greater scoring weight allotted to, performance tests, but one suggested by Jason Solomon in his recent article bears serious consideration. Solomon suggests the use of multiple-choice questions, which inherently afford greater testing reliability, within a performance test format.[xxvii] Instead of, or in addition to, writing an answer, as required on the traditional performance test, examinees would answer a series of multiple-choice questions on the materials provided in the test and on the most effective ways to resolve the issues presented. Unlike MBE questions, these questions would not require examinees to recall memorized legal doctrine, but rather to carefully review the provided factual or legal materials. Multiple-choice questions within a performance test format could also be an effective vehicle for adding legal research to the bar exam, as even within a closed-book format, examines could be asked questions about the most effective research strategy to build on the provided materials.[xxviii]

Conclusion

In sum, to improve the bar exam going forward still requires a focus on the performance test. The following goals are worth pursuing and achieving:

  • Performance testing that consistently encompasses more of the fundamental lawyering skills that the test was originally designed to encompass, including problem solving and factual analysis.
  • More and consistent use of statutory and regulatory authorities in the law library of performance tests
  • Use of performance testing in all 50 states, not just 46
  • At least two performance test items in all jurisdictions
  • Research into the use of multiple-choice questions within a performance test framework, including as a vehicle for testing legal research

[i] See, e.g., Vikram David Amar, What About the Bar Exam After the 2020 Dust Settles?, Verdict, Legal Analysis and Commentary from Justia (Sept 17, 2020), https://verdict.justia.com/2020/09/17/what-about-the-bar-exam-after-the-2020-dust-settles; Jason Solomon, INSIGHT: Saving the Bar Exam By Focusing on Performance, United States Law Week (July 16, 2020), https://news.bloomberglaw.com/us-law-week/insight-saving-the-bar-exam-by-focusing-on-performance.

[ii] Several thoughtful pieces touching on racial inequities caused by the bar exam appear in volume 3, Issue 4 of AccessLex’s publication, Raising the Bar, 3-12 (Fall 2020), https://www.accesslex.org/resources/raising-the-bar-fall-2020.

[iii] Amar, supra Note i; Solomon, supra Note i. 

[iv] Nat’l Conf. of Bar Exam’rs, Your Voice: Stakeholder Thoughts About the Bar Exam, Phase One Report of the Testing Task Force, 1 (Aug. 2019), https://testingtaskforce.org/wp-content/uploads/2020/03/FINAL-Listening-Session-Executive-Summary-with-Appendices-2.pdf.

[v] Id. at 3. 

[vi] See Adoption of the Uniform Bar Examination, with NCBE Tests Administered by Non-UBE Jurisdictions, Nat’l Conf. of Bar Exam’rs (Aug 18, 2020), https://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F196.

[vii] The NCBE is notorious for approaching change very cautiously and incrementally. In 2012, the then President of the NCBE invoked geological metaphors to describe how bar exams evolve, writing that any evolution of the exam will be “more glacial than volcanic.” Erica Moeser, President’s Page, B. Examiner, Dec. 2012 at 4, 4.

[viii] MPT Skills Tested, Nat’l Conf. of Bar Exam’rs https://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F54 (last visited Oct. 20, 2020) (citing Am. Bar Ass’n Section of Legal Educ. and Admissions to the Bar, Legal Educ. and Prof. Dev. – An Educational Continuum, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap 138-41 (1992) [MacCrate Report]).

[ix] Judith Gunderson, Happy Birthday, MPT!, B. Examiner, Nov. 2007, at 18. See also MPT Skills Testedsupra Note viii.

[x] Id. at 20. 

[xi] Multistate Performance Test: Jurisdictions Administering the MPT, Nat’l Conf. of Bar Exam’rs, https://www.ncbex.org/exams/mpt/ (last visited Oct. 20, 2020).

[xii] Adoption of the Uniform Bar Examination, with NCBE Tests Administered by Non-UBE Jurisdictions, supra Note vi.

[xiii] Pa. Bd. of Law Exam’rs, Bar Examinationhttps://www.pabarexam.org/bar_exam_information/bebasics.htm (last visited Oct. 20, 2020).

[xiv] The State Bar of Cal., Examinations, California Bar Examinationhttp://www.calbar.ca.gov/Admissions/Examinations (last visited Oct. 20, 2020).

[xv] Multistate Performance Test: Jurisdictions Administering the MPTsupra Note xi.

[xvi] Ben Bratman, Improving the Performance of the Performance Test: The Key to Meaningful Bar Exam Reform, 83 UMKC L. Rev. 565, 584-97 (2015).

[xvii] 2019 MPT Summaries, Nat’l Conf. of Bar Exam’rs, https://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F233 (last visited Oct. 20, 2020).

[xviii] MPT Skills Testedsupra Note viii.

[xix] See Free Summaries of MPTs from Recent Administrations Free MPTs and Point Sheets from Older Administrations, Nat’l Conf. of Bar Exam’rs, https://www.ncbex.org/exams/mpt/preparing/ (last visited Oct. 20, 2020).

[xx] 2015 MPT Summaries, Nat’l Conf. of Bar Exam’rs, https://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F175 (last visited Oct. 20, 2020).

[xxi] The State Bar of Cal., Past Exams, Performance Tests and Selected Answershttps://www.calbar.ca.gov/Admissions/Examinations/California-Bar-Examination/Past-Exams (last visited Oct. 20, 2020).

[xxii] See, e.g., Pa. Bd. of Law Exam’rs, July 2019 Pennsylvania Bar Examination, Essay Questions and Examiners’ Analyses and Performance Test, 59-61, https://www.pabarexam.org/pdf/qa/qa719.pdf (last visited Oct. 20, 2020).

[xxiii] See, e.g., Pa. Bd. of Law Exam’rs, February 2020 Pennsylvania Bar Examination, Essay Questions and Examiners’ Analyses and Performance Test, 62-70, https://www.pabarexam.org/pdf/qa/qa220.pdf (last visited Oct. 20, 2020).

[xxiv] Nat’l Conf. of Bar Exam’rs, Comprehensive Guide to Bar Admission Requirements 36-37 (2020), available at https://www.ncbex.org/assets/BarAdmissionGuide/CompGuide2020_021820_Online_Final.pdf.

[xxv] Bratman, supra Note xvi, at 605-10.

[xxvi] Id. at 608.

[xxvii] Solomon, supra Note i.

[xxviii] If and how to test legal research on the bar exam has been on the NCBE’s radar screen since at least 2006. See Erica Moeser, President’s Page, B. Examiner, May 2006, at 4, 5.

SALT Social Justice in Action series: Anti-Racist Hiring Practices

by Professor Brooks Holland, Gonzaga Law School

The Society of American Law Teachers has been proud to share its four-part Fall 2020 Social Justice in Action webinar series. This webinar program already has presented leaders in the field to address anti-racism values and practices in three specific contexts, including anti-racism in the core law school curriculum, equity and inclusion in online legal education, and anti-racist work for the long-haul. Approximately 500 people attended these first three webinars, and many more have since viewed them on SALT’s website.

The fourth installment of SALT’s webinar series will take place on October 16, 2020 at 12:00pm PT and 3:00pm ET, and it will address one of the most important influences we as educators have on the future of higher education and the legal profession: our hiring practices. We all know that law school and higher education hiring practices is one of the areas where we most struggle to fulfill our commitment to diversity and antiracist values. To explore how we better can fulfill this commitment, SALT is honored to present three highly respected leaders in legal education to share their perspectives on anti-racist values and practices in the recruitment and retention of faculty, staff, and administrators:

Tamara F. Lawson, Dean, St. Thomas University School of Law

Angela Onwuachi-Willig, Dean, Boston University School of Law

Sean M. Scott, President and Dean, California Western University School of Law

Please join SALT for this important event! You can register for this program here.

SALT Webinar Video Available on “Engaging in Anti-Racism Work for the Long Haul”

By Olympia Duhart

Nova Southeastern University Shepard Broad College of Law

            In the midst of nonstop racialized violence and institutional assaults against minoritized communities, it is no wonder that those committed to fighting racism can sometimes feel personally overwhelmed. The Society of American Law Teachers (SALT) turned its attention to this important topic at a recent Webinar. Law school leaders and a resiliency expert offered their insights and advice to law professors engaged in anti-racism work.

            The webinar, “Engaging in Anti-Racism Work for the Long Haul: Avoiding Fatigue and Burnout” was the latest in a series of Social Justice Webinars sponsored by SALT this year. The event featured Dean Mario Barnes, Toni Rembe Dean & Professor of Law, University of Washington School of Law; Nikita Gupta, GRIT Program Director, UCLA Bruin Resource Center and Carla Pratt, Dean & Professor of Law, Washburn University School of Law. More than 130 people attended the event. A video of the event is available here. Panelists explained why law school professors are in a critical position to combat racism, and talked about the importance of self-care in confronting injustice for the long haul.

The event was part of SALT’s Social Justice in Action Webinar Series. The next webinar, “Anti-racist Hiring Practices” will be held Friday, Oct. 16, 2020 at 3 p.m. EST. Registration is available at:  https://bit.ly/307SZ6M

They Should Call It Negotiation School, Not Law School

They Should Call It Negotiation School, Not Law School

Following publication of the recent ABA book, Litigation Interest and Risk Assessment:  Help Your Clients Make Good Litigation Decisions, which I co-authored, I have been giving talks related to the book.  I recently recorded a presentation entitled, “They Should Call It Negotiation School, Not Law School” for Becky Jacobs’s (Tennessee) ADR class.

This presentation points out that the vast majority of cases are negotiated, not litigated and certainly do not produce appellate opinions.  It provides a general introduction to negotiation, showing that negotiation is part of everyday interactions with virtually everyone lawyers interact with, and that negotiation is not limited to the final stage of a lawsuit.  It summarizes the major negotiation models and key variables that comprise the models.  It encourages lawyers to be “conflict diagnosticians,” helping clients identify and address the actual causes of their conflicts.  It recommends that lawyers help clients do litigation interest and risk assessments to develop bottom lines based on expected court outcomes and future tangible and intangible costs of litigation.  It urges students to develop good relationships with clients and counterpart lawyers when they are in practice.  There are links to resources throughout the powerpoint for students who want more information.

Here’s the 39-minute video and powerpoint, which you are welcome to use for your classes.

The title of the talk refers to the “hidden curriculum” in legal education implying that lawyers mostly do appellate litigation – negotiation not so much.  Generally, clients’ interests and negotiation are invisible in the hidden curriculum, and the implicit message is that they aren’t important.  Even when individual faculty valiantly include discussion of these issues, the hidden curriculum overwhelms these efforts, teaching a powerful, misleading message about what lawyers actually do.

Obviously, the idea that American law schools should be called “negotiation schools” is a big, fat lie.  Even in schools with the most robust dispute resolution programs, negotiation and other dispute resolution courses constitute only a secondary part of the curriculum.

So this got me thinking about what a “negotiation school” would really look like.  How about the following?

The required 1L curriculum might include the following introductory courses, and upperclass courses would provide more detailed instruction in these subjects:

  •          Written and Oral Communication Skills
  •          Common Law Analysis and Legal Research
  •          Working Constructively with Clients and Counterpart Lawyers
  •          Understanding Conflict and Using Negotiation and Other Methods of Dispute Resolution
  •          Strategic Case Evaluation and Management
  •          Professional Responsibility and Access to Justice
  •          History of Law and Justice in the US
  •          Technology and Dispute System Design Skills
  •          Business Transactional Skills and Practice
  •          Civil Pretrial and Trial Practice
  •          Criminal Procedure and Practice
  •          Administrative Law and Government Practice
  •          Appellate Procedure and Practice

The last four courses on this list would note that most legal cases are not finally adjudicated and would discuss how lawyers use legal procedures as part of their case management and negotiation strategies.  For example, the Criminal Procedure and Practice course would include substantial coverage of plea bargaining.

In the first year, courses might be taught in a series of short modules so that students would complete foundational courses before taking courses relying on the skills and knowledge taught in the preceding courses.  For example, students would take courses on communication, common law analysis, and legal research skills in the first few weeks of school to lay the groundwork for courses later in the year.

During the winter inter-session, schools might “shoehorn” a short course on legal doctrine such as contracts or torts.  Students would be able to count up to 9 credits of doctrinal courses toward graduation.

This curriculum would reflect the trans-substantive nature of the general skills that lawyers generally use in virtually all types of practice.  By contrast, in practice, lawyers need to regularly research, learn, and update knowledge of specific legal authority in many different subject areas.

Students would be evaluated primarily on portfolios of work-product they develop as part of their individualized learning plans.  The curriculum would dramatically reduce the use of high-stakes, end-of-semester exams that require a lot of memorization and de-contextualized application of legal rules. 

The major school competition would be in client interviewing, counseling, and negotiation instead of moot court.

Students performing well in clinical and practice courses would have the easiest time getting prestigious jobs.

To become licensed to practice law, after graduation, students would complete modestly-paid one-year internships (like Canadian articling) instead of taking a bar exam.  Since students wouldn’t take a bar exam, they wouldn’t feel compelled to take “bar courses” they aren’t interested in just to increase their chances of passing the bar.

Faculty teaching legal writing, clinical, externship, and skills courses would have the highest pay and status.  Faculty teaching subjects like Con Law would be paid less and have multi-year contracts instead of tenure.  In a few egalitarian schools, they would be allowed to vote in faculty meetings.

Scholarship focusing on the relationship between theory and practice would have the highest status.  Faculty writing about obscure topics of interest to only a handful of scholars would have a hard time getting tenure.

I realize that this idea is a bit extreme.  Perhaps students should be permitted to take up to 15 credits of doctrinal courses.  🙂 

Does this all seem too radical to you? 

Obviously, this somewhat mischievous thought experiment is intended to be provocative.  It uses some role reversal to identify unconscious assumptions that we take for granted about what is necessary or appropriate for good legal education. 

It’s hard to even imagine any substantial alternative to our system of legal education to address realities of legal practice because our curriculum is so thoroughly institutionalized with our curriculum structure, textbook industry, staffing commitments, tenure norms, bar exams, US News rankings etc.

Unfortunately, American legal education is extremely resistant to change for many reasons, and it’s unlikely that any law school would even consider these ideas.  But you might want to reflect on them and the underlying assumptions of our work.

What do you think?  How would you design a “negotiation school” or “legal practice school” or the like?

Report on the CSALE “2019-20 Survey of Applied Legal Education”

by Bob Kuehn, Professor of Law & Associate Dean for Clinical Education Washington University School of Law

The Center for the Study of Applied Legal Education (CSALE) is pleased to announce that the report on its “2019-20 Survey of Applied Legal Education” is now available on CSALE’s redesigned website:  https://www.csale.org/#results.

The report summarizes the collective survey responses from 95% of law schools and over 1,300 law clinic and field placement instructors. The 2019-20 survey, CSALE’s fifth tri-annual survey, provides the most comprehensive, accurate picture to date of clinical legal education programs, courses, and faculty.

In addition to the report, CSALE provides customized information on aspects of the data, such as how a school’s clinical courses or faculty compare to peer schools or more detailed sorting of survey question results. Requests for a customized report should be sent to administrator@csale.org.

Clinical Law Review seeks applications for five vacancies on Board of Editors

The Clinical Law Review seeks applications for five vacancies on the Board of Editors. The Board urges you to think about whether you would be interested, and to think about others whom you would encourage to apply. 

Members of the Board of Editors serve for a term of 6 years. The term of the new Board members will commence in January 2022. The primary role of the Board members is to edit articles for the Review. Because this is a peer-edited journal, the editing process is collaborative. Board members also serve as small group facilitators in the annual Clinical Law Review Workshop. There is at least one meeting per year of the Board, usually held at the annual Workshop. 

Applicants should submit (1) a C.V. and (2) a statement explaining their interest in the position and highlighting relevant aspects of their experience.  The Board seeks applications from people committed to the work of the Review and will prioritize applicants from underrepresented groups and applicants with diverse experiences in and approaches to clinical legal education. Applications must be received no later than January 31, 2021. Please e-mail them to CLRBoardApps2021@gmail.com.  

The committee to select new Board members is always co-chaired by two current Board members whose term is expiring. We (Jeff Selbin & Jennifer Koh) will be serving this year as the co-chairs of the Selection Committee. The other members of the committee will be designated by the three organizations that sponsor the Clinical Law Review — AALS, CLEA, and NYU — each of which will designate two committee members. 

We encourage you to contact us or other current or former Board members with any questions or for information about service on the Board. We and other Board members have found the experience to be very rewarding. 

The other current members of the Board are: Muneer Ahmad, Sameer Ashar, Susan Bennett, Warren Binford, Marty Guggenheim, Margaret Johnson, Jen Lee, and Alex Scherr. The current members whose terms are ending, along with ours, are: Muneer, Susan, and Warren. 

The current Editors-in-Chief are Phyllis Goldfarb, Randy Hertz, and Michael Pinard. 

Those who previously served on the Board are: Jane Aiken, Amna Akbar; Tony Alfieri, Wendy Bach; Bev Balos, Margaret Martin Barry, Ben Barton, Juliet Brodie, Angela Burton, Stacy Caplow, Bob Dinerstein, Jon Dubin, Cecelia Espenoza, Keith Findley, Gay Gellhorn, Michele Gilman, Carolyn Grose, Peter Toll Hoffman, Jonathan Hyman, Peter Joy, Minna Kotkin, Deborah Maranville, Bridget McCormack, Binny Miller, Kim O’Leary, Ascanio Piomelli, Mae Quinn, Paul Reingold, Brenda Smith, Jim Stark, Paul Tremblay, Nina Tarr, Kim Thomas, Rod Uphoff, and Leah Wortham. The Emeritus Editors-in-Chief are Richard Boswell, Isabelle Gunning, and Kate Kruse. The late Steve Ellmann was a founding Editor-in-Chief of the Review.

We look forward to hearing from you. — Jennifer Lee Koh & Jeff Selbin 

Engaging in Anti-Racism Work for the Long Haul

Society of American Law Teachers

September 18th

3 p.m. to 4 p.m. EST
Register here: https://bit.ly/2BDeToN
 
Featuring:

Carla Pratt
Dean & Professor of Law
Washburn University School of Law

Mario Barnes

Toni Rembe Dean & Professor of Law,
University of Washington School of Law

Nikita Gupta
GRIT Program Director
UCLA Bruin Resource Center

After registering, you will receive a confirmation email
with information about joining the meeting.

______________________________

Next SALT Social Justice in Action Webinar
Anti-Racist Hiring Practices, October 16, 3:00 p.m. to 4:00 p.m.
Register here: https://bit.ly/307SZ6M

New article explores legal bases for exemptions from in-person teaching during the Coronavirus pandemic

From Gary Simson at Mercer Law:

In It’s Alright, Ma, It’s Life and Life Only: Are Colleges and Universities Legally Obligated during the Coronavirus Pandemic to Exempt High-Risk Faculty from In-Person Teaching Requirements?, Mercer Law Professors Mark Jones, Cathren Page, Sue Painter-Thorne, and Gary Simson examine colleges’ and universities’ legal obligations to allow faculty to opt for online, rather than in-person, teaching during this pandemic. They focus on the group of faculty whom they believe colleges and universities have the clearest legal obligation to protect – those who, according to the Centers for Disease Control and Prevention, appear to be most vulnerable to getting seriously ill or even dying if they contract the coronavirus. In the language of the CDC, their focus is faculty members “at increased risk of severe illness from COVID-19,” which, according to the CDC, means anyone who has reached age 65 or who has one of various medical conditions, including cancer, chronic kidney disease, pregnancy, hypertension, and more.

The authors maintain that four separate legal sources are best understood as requiring colleges and universities to exempt high-risk faculty from any in-person teaching requirement. Two of the four sources are federal statutes that qualify as major statements of national policy – the Americans with Disabilities Act and the Age Discrimination in Employment Act.  The other two sources are important state-law doctrines with strong support in the American Law Institute’s most recent restatement of the law of torts – protection from intentional infliction of physical harm, and protection from intentional infliction of emotional distress. The authors express the hope that their arguments will persuade college and university leaders to exempt high-risk faculty not simply to avoid possible legal liability but also out of a recognition that a college or university policy at odds with legal sources as weighty as the four discussed speaks very poorly for the institutions those leaders are charged with leading. 

For the article, see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3684190.

SALT Social Justice in Action

A Virtual Series Sponsored by 

 The Society of American Law Teachers

SALT encourages law schools across the country to take affirmative steps to promote justice, eradicate racism and support their law school communities in light of pervasive injustices. SALT is proud to announce a virtual series 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. We will host monthly panel discussions on ways to combat racism and promote equity in law school. This work will include presentations on the integration of anti-racist frameworks in classes, promoting equity and inclusion in online teaching, anti-racist faculty hiring practices, and racialized trauma and fatigue.


Promoting Equity and Inclusion in Online Teaching
 August  21, 2020  3:00 – 4:00 pm ET
Register here:  https://bit.ly/2DbiMli

 Featuring

Goldie Pritchard, Director, Academic Success Program, Michigan State Univ. College of Law
Tasha Souza, Associate Director of the Center for Teaching and Learning, Boise State University
Carwina WengClinical Professor of Law, Indiana University Maurer School of Law
Sha-Shana N.L. Crichton, Director, Legal Writing Program, Howard University School of Law

If you have questions for our panelists in advance of the event,
please submit them here: https://forms.gle/5PuV1LSznYKWQ4Gc9


Racialized Trauma and Fatigue Among Academic Activists
 September 18, 2020 3:00-4:00 pm ET
Register here:  https://bit.ly/2BDeToN

 Featuring

Nikita Gupta, GRIT Coaching Program Director, University of California, Los Angeles
Carla Pratt, Dean, Washburn University School of Law
Rosario Lozada, Associate Professor of Legal Skills and Values, Florida International University Law


Anti-Racist Hiring Practices
October 16, 2020 3:00-4:00 pm ET
Register here:  https://bit.ly/307SZ6M

 Featuring

Tamara Lawson, Dean, St. Thomas University School of Law 
Angela Onwuachi-Willig, Dean, Boston University School of Law 
Sean Scott, President and Dean, California Western School of Law
 

 After registering, you will receive a confirmation email containing information about joining the meeting.

Managing Expectations in the Law School Classroom

On behalf of Andrew Henderson, PhD Candidate, ANU College of Law, The Australian National University

Developing a relationship with students in an online setting is a challenge. There are the problems with technology (‘You’re muted!’) and the usual interruptions (‘I’ll come and watch Paw Patrol in a minute’). But all those usual tricks we use as law teachers to ‘read the room’, especially at the start of the semester, don’t quite work.

And that can be a problem. A recent survey of undergraduate college students found that their experience with ‘emergency’ remote teaching was not a happy one. And a lot of university professors felt the same way, especially when it came to student participation.

One of the ways I have often got out ahead of student satisfaction in face-to-face classes was to have an explicit conversation about expectations. But not just the standard, finger-wagging ‘you will do the reading’ diatribe. I ask students specifically about their expectations of me.

The idea of writing’ classroom rules’ together in schools is common.  There are lots of books, articles and blog posts about classroom agreements by school teachers.  The International Baccalaureate’s Primary Years Program mandates what they refer to as an ‘Essential Agreement’.  The objective is to establish a collective agreement – with all the buy-in that brings with it – on how the class will function.

I was an elementary school teacher. I often wondered why, when I moved to law school, law teachers didn’t do the same thing.  Especially when they’re subject to a much more explicit student evaluation process.   

There is some valuable research on whether student evaluations have value as a performance assessment or management tool.  But, where they are completed honestly and sensibly, evaluation comments tend to fall into common categories.  Usually, there are comments about assessment preparation, assessment tasks and feedback. There are often comments about what was taught or how it was taught. And there is usually something about individual teaching style.

But, by the time the comments appear, it’s generally too late to do anything about a lot of them.  Assessment tasks were locked in with the faculty board months or even years ahead. And lectures are ‘done and dusted’.

Getting that feedback earlier on would, of course, have been valuable. And in an online environment, grabbing some of those expectations can be even more useful given that both students and teachers are doing something new.  Some of the comments might even explain why law students were really engaged.  They might also explain why they performed poorly or didn’t participate. It might have had nothing to do with you at all! But it will also tell you about things that you might have been able to do, or stop doing if you had known earlier.

Traditionally, I would do this in class and usually in the first seminar. I would also get students to give their expectations to another student to encourage openness. And I have talked about that more traditional process on my own blog.

But how can you do this in an online environment where no one really wants to sit in a Zoom room for more than an hour? And how can it be done to preserve a degree of sincerity and openness, especially in a first meeting?

Maybe one of the simplest ways is to use a shared document or even create a Google form with some simple questions. The settings for Google forms can be adjusted so that the respondent doesn’t have to enter their email.  Responses are helpfully collected anonymously in a single Google Sheet that can be reproduced and published.

I have also found another tool that can do the same thing in a way which is more familiar to students. A web-based app called Parampara allows users to create a questionnaire that looks like a Facebook Messenger conversation in a web browser.  Although it seems like a conversation, responses can be pre-programmed with alternative answers depending on the options that the respondent picks. I have found it much more ‘friendly’ than a Google form. And it’s free for the basic account.

While the process of collecting expectations in the classroom was valuable, I have actually found that collecting them through an online tool even more useful. Students would appear to be happy to express themselves more freely and openly. They will often talk about their expectations and where they believe they need help with aspects of the content or skills development.

For example, students have asked for specific things to be covered in more detail because they aren’t sure they understand them. Some have asked for specific advice about particular skills, like essay writing. Some have even expressed their concerns about being called on but also suggested how I can help them manage that anxiety so that they can actively participate.

Overall, it has meant that I have been able to adapt my teaching and the content to respond specifically to students’ interests and needs. Put another way, students have been actively engaged in the development of the course.

Setting out expectations at the start of the semester can be a valuable process. From a selfish perspective, it can give an early ‘heads up’ things that can be addressed before student evaluation time. But, the more valuable outcome has been that my teaching overall has improved. Using these online tools has meant that expectations are captured accurately, clearly communicated and expressed in a way that has further enhanced my teaching.

(Parts of this post appeared in the author’s blog, The Mermaid’s Purse, on 12 February 2020)

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