Covid 19 and the 2020 Bar Exam

See this link for a short policy paper on alternatives to licensing this year’s law graduates and why state supreme courts should consider extraordinary measures in extraordinary times. If you know a state bar examiner, state bar leader, or state supreme court justice, please consider sharing this with them. 

Thinking outside the box for this year makes sense on many levels. As the paper notes, legal needs will increase as result of this crisis. Today’s graduates have a technological savvy that makes them  particularly well equipped to handle moving to online delivery of legal services. Additionally, delaying their entry into the profession will cause them to  suffer serious financial and emotional issues beyond those they already confront because of this virus.  And, any changes to state licensing requirements is a relatively low risk proposition given that the change would be a one-time emergency action.  

The paper hopefully lays the groundwork for  discussions on the state level about options beyond postponing this year’s bar exam [an option that, as the paper explains, carries its own risks and uncertainties].  Again, if you think that at least discussing options has merit, please share widely.

 

 

I WILL SURVIVE ONLINE TEACHING

I plan to write and post more and much, but for now, Enjoy! by Michael Bruening, an associate professor of history and political science at Missouri University of Science and Technology  

 

as a Mitchell-Hamline Professor Brad Colbert  currently signs off – stay sane and sanitized!

Be well,

Mary

 

 

Preparing 1Ls for Persuasive Communication by Integrating Procedural Rules and Substantive Law

By Louis Jim, Assistant Professor of Law, Albany Law School

My last post discussed my experience of using “classroom clickers” in the first week of law school to build a foundation to understand the hierarchy of authority, a foundation that is critical to success in all classes. In this follow-up, I discuss my experience with using “classroom clickers” to improve student understanding of the Federal Rules of Civil Procedure before students write their motion and appellate briefs.

Many law schools require 1Ls to complete a legal analysis, communication, and research course. Although models may vary, those courses typically span two semesters: the first semester focuses on “objective/predictive writing” and the second semester focuses on “persuasive writing.” At Albany Law School, the course is called “Introduction to Lawyering,” which is a six-credit, two semester course (“Lawyering I” in the fall, “Lawyering II” in the spring). I started teaching the course in August 2018.

In Lawyering II, I require the class to write a summary judgment motion and an appellate brief; the students then complete an appellate oral argument. For the summary judgment, every student represents defendants who move (and are inevitably granted) summary judgment. Every student then represents the plaintiffs-appellants for the appellate brief. Students choose their side for the appellate oral argument.[1] By forcing students to switch sides, students must first write their statement of facts and argument from the perspective of the defendant, and then re-write their statement of facts and argument from the perspective of the plaintiff. This model fosters a better understanding of the strengths and weaknesses of both parties. But more importantly, because students must write from diametric perspectives, this model forces students to think about how organization and word choice affect the persuasiveness of their motion and brief.

The semester-long hypothetical is set in fictional State of New Scotland, and the venue of the civil action is the fictional U.S. District Court for the District of New Scotland,[2] which is in the fictional U.S. Court of Appeals for the Fourteenth Circuit. The U.S. Supreme Court hears appeals from the Fourteenth Circuit. The hypothetical involves a real circuit split on a constitutional or statutory issue and asks students to persuade the fictional district court and fictional circuit to take a position. As an “open universe” problem, students perform independent research, though I assign short research assignments to get them started. Students must recall their knowledge of “binding” and “persuasive” authority and analogize or distinguish the hypothetical problem’s facts to the facts of real cases on either side of the split.

When I first taught “Lawyering II” in Spring 2019, I presumed that every student fully understood how summary judgment actually worked because they took “Federal Civil Procedure” in the fall. But after reading the motions, I realized that I had failed to ensure that each student had a solid foundation to understand how summary judgment actually worked in practice.

Not wanting to repeat my mistake this spring, I created an in-class exercise to assess the class’s understanding of motions, appeals, and Federal Rules of Civil Procedure 12 and 56. A copy of the exercise that includes my comments on the objective of each question is available here:

The exercise involves two separate federal housing discrimination claims against “YBR Apartments, Inc.” The plaintiff in the first claim is “Oscar Zoroaster,” and the plaintiff in the second claim is “Dorothy Gale.” Both plaintiffs claim that they have the fictional “Ruby Slippers Syndrome.” Each question in the exercise builds the prior question, and each question assesses a different aspect of Rule 12 or Rule 56. By using a “classroom clicker,” each student participates without fear of being singled out for being incorrect.

I start with Rule 12 because it serves as a good opportunity to focus the students’ attention to the elements of the claim (i.e. “Can plaintiff state a prima facie case for federal housing discrimination?”). The discussion on the questions about Rule 12 also gave me an opportunity to stress that plaintiff’s counsel should draft complaints precisely and accurately as possible in light of the information available to counsel at that time.

The exercise transitions then to assessing the students’ understanding of Rule 56. For the Rule 56 portion, I wrote hypotheticals that would assess their understanding of (1) what it means for a fact to be “material,” (2) what a “dispute as to [a] material fact” and “judgment as a matter of law” actually mean, and (3) how a district court uses persuasive authority when there is no binding authority. The posture of the last two questions in the exercise are designed to mirror the posture of summary judgment motion and appellate brief for the semester-long hypothetical, i.e. convince a district court and a circuit court to adopt the position of another circuit absent any binding authority.

Not only was the exercise useful in assessing (or reviewing) their understanding of Rules 12 and 56, but the exercise also challenged students to begin forming and making persuasive arguments to support their responses. By practicing how to develop their persuasive communication skills early in the semester, students engaged with the primary learning outcome for Lawyering II—persuasive communication. Students could then apply the exercise’s lessons to the semester-long hypothetical. Finally, students saw how substantive and procedural law is actually integrated and used in practice, an opportunity that may not always arise in other courses.[3]


[1] Students sign up on a first-come, first-serve basis.

[2] Albany Law School is located at 80 New Scotland Avenue in Albany, New York.

[3] My students complete a biweekly reflection in which they must tell me two things they learned in Lawyering that week and two things they want to learn in Lawyering. The students then have the option of writing any comments or asking any questions even if the questions and comments are unrelated to Lawyering. One student commented that she wished she saw more of how doctrinal law is actually used in practice.

Why Law Schools Need to Teach Critical Thinking

by Scott Fruehwald

Law schools have never systematically taught critical thinking.  I do not mean that law schools do not help develop critical thinking.  However, this is not done on a systematic basis.  There is no method or approach for teaching critical thinking in law schools.

For example, taking a class in negotiation will help students develop critical thinking, but not systematically.  This is like learning grammar just by speaking a language.  While this gets the student some of the way, to be systematically trained in a language, a student must explicitly study grammar.  Similarly, the Socratic method does help develop some critical thinking processes, but it mainly teaches students how to extract and understand doctrine.

I have just completed a book that shows law professors how to understand and teach critical thinking: How to Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, but Newton asked Why.

Critical thinking is “[t]he intellectually disciplined process of actively and skillfully conceptualizing, applying, analyzing, synthesizing, and/or evaluating information gathered from, or generated by, observation, experience, reflection, reasoning, or communication, as a guide to belief and action.”  (here)  “It is . . . automatically questioning if the information presented is factual, reliable, evidence‑based, and unbiased.” (here)  Critical thinking is a set of processes, including metacognition, conceptualizing, synthesizing (constructing), asking questions, organizing, developing and evaluating alternatives, considering unintended results, planning, self-monitoring, reflection, spotting assumptions, evaluating inferences, exercising epistemic vigilance, supporting arguments with evidence, evaluation, skepticism, and self-direction.

Here are several things that critical thinking can do:

1.  Critical thinking helps overcome superficial thinking.  It helps you see when you are relying on unsupported assumptions or opinions.

2.  Critical thinking helps overcome thinking based solely on intuition.

3.  Critical thinking produces rigorous and disciplined thinking.

4.  Critical thinking helps individuals create questions.

5.  Critical thinking helps individuals know when they need more information.

6.  Critical thinking helps avoid unintended consequences.

7.  Critical thinking supports problem-solving.  It helps make sure you don’t skip a step in the problem-solving process.

8.  Critical thinking helps overcome biased thinking.

9.  Critical thinking helps avoid mistakes by providing a method to evaluate (double-check) one’s work.

10.  Critical thinking helps an individual critique the work of others.

11.  Critical thinking promotes deep thinking.

12.  Critical thinking helps an individual see all sides of an argument.

13.  Critical thinking helps individuals solve difficult problems.

14.  Critical thinking helps individuals support their arguments.

15.  Critical thinking helps individuals recognize how a problem is framed and overcome the framing effect.

16.  Critical thinking helps thinkers recognize when selfish motives lie behind an argument.  It helps thinkers recognize manipulation.

17.  Critical thinking teaches students how to construct the law.

My book introduces critical thinking, shows how to teach it to lawyers, judges, and law students, and demonstrates how to use critical thinking to improve the Socratic method.  It also shows law professors how to improve their teaching through critical thinking.  Finally, it includes chapters on teaching legal writing and judges.  Since critical thinking development requires practice, it includes many examples and exercises.

Universal Design in the Law School Classroom—a Few Thoughts

One of the many things that most of us teaching in universities, very much including law schools, lack by way of training is any overview of how living with a disability affects learning, let alone what interventions might make a difference.

At best, some of us have second hand knowledge through the experience of friends and relatives (My Mom was a Speech Pathologist) who have that training or perhaps their children who are recipients of such instruction in grade school.   So no matter how willingly we provide the “accommodations” ordered by often overwhelmed university offices tasked with meeting the institution’s legal obligations, we do so without an underlying understanding of what those accommodations are supposed to achieve.  Or how they are supposed to achieve them.

Fortunately, it is not necessary to get a degree in teaching and learning to acquire a basic proficiency in how to teach in ways that make it more accessible to all students and as well as to work with experts to address the specific needs of individual students.

The resources below reflect a variety of sources for information as well as some ideas about universal design that would make learning more accessible to everyone.  It’s also helpful, in general, to be open to the idea that learning and sensory perception is different for everyone—and it’s probably better to let students make their own decisions about things like where in the room they want to sit than to adhere to traditions like pre-assigned seating.

To preview an article I’m working on, it is also important for us to realize that many of the common tasks assigned to law students, especially in classes intended to teach the crucial skills of legal research and writing, depend on levels of Executive Function rather than intelligence or knowledge basis or even ability to “think like a lawyer.”

Here are some resources:

Preparing Accessible Documents and here

An article from Diversability Magazine, Navigating Learning Disabilities in Law School.  https://www.diverseabilitymagazine.com/2017/04/navigate-learning-disabilities-law-school/

This information from Vanderbilt covers a lot of ground, and offers very practical suggestions in the section titled, “Strategies for Creating Accessible Learning Environments”

A recent survey of medical students seeking input on what would enhance their learning was a plea for no more blue slides with yellow text.   These links are helpful to make sure that we are not making life harder for students when we design slides. https://www.yorksj.ac.uk/media/content-assets/student-services/documents/A-Guide-to-Dyslexia-(PowerPoint)-A5.pdf

Here are some practical suggestions that we might offer all our students dealing with pages of dense text in small print-https://www.ws.edu/student-services/disability/teaching/learning.shtm

Hearing impairment is very common and sometimes comes on so gradually that people don’t even notice. It’s fair to assume that everyone would benefit from things like not just the Prof. using a microphone but passing one around so that students can here each other.  Here are some things to keep in mind about students with hearing impairments-including a very helpful point that no assistive device “restores” hearing and that we should respect a student’s own assessment of where in the classroom works best for them.  https://www3.gallaudet.edu/Documents/Clerc/TIPSTOGO-2.pdf

Best Practice Contributors Highlighted in Best Articles of 2019

A big congratulations to our very own bloggers, Jennifer Bard and Benjamin Madison, for being featured on the TaxProf Blog!

Jennifer Bard’s article, “Are the Students Failing the Bar Exam Today Canaries in the Coal Mine warning us of a More General Need to Change Legal Education?” and Benjamin Madison’s article, “New Rubrics Available to Help Law Schools that Have Adopted Learning Outcomes Related to Professional Identity Formation” were both listed as TaxProf Blog’s “Best Legal Education Articles of 2019.”

Refuting the False Trope on Clinical Courses and Bar Passage

Robert Kuehn, Washington University School of Law

It has been observed that “the fewer the facts, the stronger the opinion.” Until recently, this could be said about the possible influence of enrollment in clinical courses on a student’s likelihood of passing the bar examination. While there was a shortage of empirical studies on any possible relationship, there have been plenty of opinions on how taking those courses might be harmful, opinions often reflected in graduation restrictions on clinical courses and requirements for bar subject-matter courses.

But, there are now significantly more facts to refute those opinions. Two recent, large-scale studies have both found no relationship between the number of law clinic or externship courses or credits a law graduate took and her likelihood of passing the bar exam.

In a forthcoming article in the Journal of Legal Education, academic records of ten years of law school graduates of Washington University in St. Louis and Wayne State University were reviewed for any relationship between the number of law clinic, externship, or, more generally, experiential courses or credits and bar passage. After first accounting for the possible influence of law school grades on bar passage (the most significant predictor of bar success), the study found no correlation at either school between law clinic or externship enrollment and bar passage — no relationship between participation in a law clinic or externship and passage, none between the number of clinical courses and passage, none between the number of clinical credits and passage, and no evidence that students graduating with lower GPAs were disproportionately enrolling in those courses as a way to avoid doctrinal courses (another not uncommon trope). This lack of any relationship was in spite of increased enrollment in experiential courses at both schools over the ten-year period and decreased enrollment in courses teaching material tested on the bar (referred to as bar subject-matter courses).

The article notes that nationwide data on experiential course enrollment and bar passage also belie any claim the two are related. That data indicate that as enrollment in experiential courses was increasing from 2006-2016, bar passage percentages were fairly steady and that the recent decline in passage coincided with decreased, not increased, enrollment in those courses.

A recent study commissioned by the California State Bar found a similar lack of relationship between law clinic and externship courses and bar exam performance. The study reviewed law school coursework and performance on three July exams for over 7,500 bar applicants from eleven California schools. It found no relationship between the number of academic credits from law clinic courses and exam performance, either across all schools or even when reviewing schools separately. Similarly, there was no relationship between the number of externship or internship credits and performance, again when examined across all schools or within schools. The broad range of entering credentials at the eleven schools, and lack of a relationship even within those schools, indicates that the results should be applicable to most law schools, including those with lower LSATs and undergraduate GPAs for entering students.

The study results from Washington University/Wayne State and the California State Bar are similar to smaller studies at Texas Tech and the University of Denver that also reported no statistically significant relationship between enrollment in a law clinic or externship course and bar passage.

The Washington University/Wayne State and California State Bar studies further revealed that opinions about the value of bar subject-matter courses should be moderated. There were small correlations at both schools between the number of bar subject courses and bar passage. But this result (explaining less than 5% of the variability in bar outcomes) was only for low performing students and additional courses showed no marginal benefit once students took the school’s average number of bar courses.

The California State Bar study focused on whether taking a specific course was related to performance on the bar exam topic taught in those courses. It found that neither attendance nor performance in courses covering any of the 13 bar-related topics was related to performance on the corresponding California bar exam or Multistate Bar Exam content covering that subject.

Studies at other schools also indicate that enrollment in bar subject-related courses do not support broad claims about the benefit of taking those courses.

It is time to put away the misinformed trope of participation in law clinic and externship courses harming a student’s chances of passing the bar exam and let the facts do the talking. Law schools should recognize and students should be told they can obtain valuable preparation for the practice of law by enrolling in clinical courses without affecting their likelihood of passing the bar exam.

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