Leaning into Uncertainty: Ensuring Quality Legal Education During Coronavirus – A Conference

On behalf of Susan L. Brooks,  Associate Dean for Experiential Learning, Drexel University

“I’m pleased to share information about a Roundtable Conference,  Leaning into Uncertainty: Ensuring Quality Legal Education During CoronavirusThe event, which will be held over two half-days (May 26 and 27) will be heavy on the sharing, lighter on the presentations.  Our sense is that there is much value in conversations, crowdsourcing and connection-building as we deal with similar challenges on different campuses. We think smaller breakout groups are an ideal venue for that.

The conference will feature six topical programs.  For each topic, we will have a 15 minute session with two presenters framing the issues, a 60 minute conversation in break-out groups, and a 15 to 30 minute return to share ideas. Our goal is broad participation, so we’re encouraging each school to send a small number of people to every program.  I hope many of you will attend some or all of the sessions.

***Please note that the session on Experiential Education will take place on Tuesday, May 26th from 4:15-5:45, and will include a wide range of topics related to varying sorts of clinics, externships, pro bono programs, and other experiential opportunities.

Feel free to forward this email to colleagues.  We are asking everyone to register by Wednesday May 20 via this link:

https://secure.touchnet.com/C20688_ustores/web/product_detail.jsp?PRODUCTID=2823&SINGLESTORE=true

The schedule is as follows:

Tuesday May 26, 2020:

  • 12:30 EST –   Opening Plenary
  • 12:45 EST –   Roundtable 1: Beyond Zoom! Moving from Emergency Virtual Classrooms to a Rigorous, Engaging Online Experience
  • 2:30   EST –   Roundtable 2: Designing Curriculum and Programs in a World of Social Distancing: Sections, Schedules and Changing Circumstances
  • 4:15   EST –  Roundtable 3: Maintaining High Quality Experiential Learning Opportunities from a Distance

Wednesday May 27, 2020:

  • 12:30 EST –   Day 2 Plenary
  • 12:45 EST –   Roundtable 4: Sustaining a Sense of Place and Well Being for our Students
  • 2:30   EST –   Roundtable 5: Maintaining Morale and Community Among Faculty and Staff
  • 4:15   EST –   Roundtable 6: Maintaining Strategic Priorities and Institutional Health Through Crisis

I’d like to acknowledge the members of the conference planning committee who assisted us in shaping this event: Barry Currier (ABA Managing Director Emeritus), Ben Cooper (University of Mississippi), Darby Dickerson (UIC- John Marshall and AALS President), Melanie Leslie (Cardozo), Kim Mutcherson (Rutgers University),  Zahr Said (University of Washington), and Emily Scivoletto (UC Davis).

Please feel free to email me with any questions or suggestions at: susan.brooks@drexel.edu. “

SALT Calls for Emergency Suspension of ABA Standard 316 Concerning a Law School’s Bar Passage Rate

“COVID-19 disruptions to the 2020 bar exam nationwide necessitates that ABA Standard 316, Bar Passage, be suspended.”

The Society of American Law Teachers (SALT) has submitted to the Council on Legal Education a  statement calling for suspension  of the 316 accreditation standard on Bar Passage, in light of the COVID-19 disruptions to the 2020 bar exam nationwide.  The Council is independent from the ABA  and oversees the accreditation of Law Schools.  In 2019, the 316 standard was heightened to require 75 percent of a law school’s graduates who sit for the bar to pass it within two years. 

The SALT statement is cogent and persuasive.  It relies on the following grounds:

  1. Standard 316 presumes as well as relies upon stable, predictable, and regular administrations of the bar exam in all jurisdictions.
  2. The COVID-19 global pandemic has caused significant disruption to the administration of the bar exam nearly everywhere including uncertainty surrounding the provision of test sites and seats for all desiring to take the exam.
  3. The National Conference of Bar Examiners (NCBE) reflects the same level of disruption.  For example, for states choosing to use NCBE materials to administer an exam, some “require that out-of-state applicants traveling from out-of-state for the exam self-quarantine for 14-days prior to the start of the examination.”
  4. COVID-19 has created an uncertain environment for nearly every test taker of the 2020 bar exam across the United States, suspension of Standard 316 is a reasonable accommodation and should be adopted.

Reasonable accommodation. Sounds reasonable to me.  Other thoughts?

 

A NY bar exam option that doesn’t require fighting for seats

 

In this article, a group of scholars and educators identify a practical and viable alternative licensing path for this year’s New York bar takers. The authors suggest that New York use the MPRE, its existing New York exam, an expanded Bridge the Gap program, and supervised practice to license new lawyers.  They posit that this alternative path to licensure would ensure knowledge of New York law, the Rules of Professional Conduct, key subjects covered in Bridge the Gap courses, and would be a true performance test of minimum competence.  Their plan, and its underlying reasoning, is worth a read and it merits serious consideration for numerous reasons.

 

First, it sets out a way to avoid constitutional challenges to New York’s recent announcement that there is limited seating for the 2020 bar exam [assuming the exam can be safely administered] and that in-state law school graduates will have registration priority.   Second, it provides a way to ensure that New York has a sufficient number of attorneys to address the increasing pandemic-related legal needs people face now and in the immediate future.   Finally, and most importantly, the suggestions lay out a viable alternative path for New York to ensure newly licensed lawyers possess minimum competence in the range of skills necessary to represent clients.

 

New York is not the only state facing limited seating issues.  Massachusetts recently announced a plan for seating that mirrors New York and other states have noted that seats at their exam tables are already full.

 

The limited seating dilemma many states face because of public health issues suggest states need to seriously consider ways beyond the bar exam to license this year’s law graduates.

 

The creative thinking these scholars demonstrate is the kind of work we need during this pandemic. The model they suggest for New York could be adapted by other states.  States could offer an option like this in addition to, or in lieu of, the traditional bar exam if public health reasons make it unsafe to administer the exam.

 

It’s a whole new world out there and sticking to the status quo just isn’t going to work – as the current competition for limited bar exam seats illustrates.

Conversations about Innovations in Teaching, Research and Technology

Here’s an announcement about a series of three conversations in June you might be interested in.  As you will see from the details below, this should be relevant to most law faculty even though some of this will be specific to dispute resolution.

With the unprecedented and rapid need to switch from face-to-face to synchronous online classes, everyone using exercises and simulations has learned a lot.  iDG, NegotiateUP and NTR  are launching a series of Conversations about Innovations in Teaching Research and Technology held during three Fridays in June (5th, 12th, 19th) from 12:00pm to 3pm Eastern Time.

We would like you to join these conversations to debrief these experiences, share best practices and identify how to meet future needs.

Please forward this email to interested colleagues and students.

Sign-up Here (This link takes you to the website with a detailed agenda and a list of people leading conversations).

Day 1: June 5, 12-3pm EST Innovations in Teaching Technology

  • Teaching Online (What worked? What could be improved) with first time, online teachers of teams, negotiations, mediation, behavioral decision making
  • Engaging Students: instant polls, synchronous and asynchronous group chats, videos, fishbowls, complex breakouts with technology first movers
  • Crowdsourcing Film/TV/Video clips for Teaching

Day 2: June 12, 12-3pm EST Innovations in Research

  • Research using Technology (Video chats, AI, Automatic data collection)
  • Analyzing Data from Video Chats, VoiceSkins
  • Using  iDG to collect data across classes
  • Open call for collaboration on Research Projects

Day 3: June 19, 12-3pm EDT Innovations in Teaching Content

  • Peer Reviews
  • Discussion & Examples – current content, how it works online; content/tech needs
    • Teams, Conflict & Communication, Negotiation, Behavioral Decision Making, Mediation
  • Exercise Teaching Workshops with Master Teachers

Reserve your place with a $25 deposit by clicking here. After June 19th you can request a refund of your deposit if:

  • You attend at least one session on June 5th, 12th or 19th.
  • You do not want access to the video recordings of the sessions.

The registration fee is to help us confirm your identity with a credit card since we will have confidential content and we also want to steer clear of any zoom bombing incidents.

We’ll be sending a survey to get your input in advance. In the meantime, if you have a topic you think we should be sure to cover – and you can help lead the discussion please email Jeanne Brett.

Niraj Kumar, Founder, iDecisionGames.com NegotiateUP.com

Jeanne Brett, President, negotiationandteamresources.com

 

 

Care-Taking, Gender & Scholarly Productivity During the Pandemic

In normal times, research suggests that women faculty take care of the academic family, providing more institutional service and student care work than their male colleagues.  This cuts into time for scholarship.  In a world where scholarship leads to rewards and advancement, studies document the problematic nature of this division of responsibilities.  Emerging research suggests that pandemic related care-taking responsibilities exacerbate the problem.

In many families, women carry a heavier burden when it comes to childcare, housework, grocery shopping, meal planning, and other household responsibilities. During the pandemic, these responsibilities have increased. While both spouses may be home, anecdotal stories suggest that employer expectations are resulting in gender inequalities when it comes to pandemic household and child-care related responsibilities.

The pandemic also has not alleviated the need to work with students or perform other institutional service.  In fact, for some faculty, those responsibilities have increased because many of us have seen an increase in student care needs.  While no data exists during the pandemic, pre-pandemic literature suggests students have higher nurturing expectations from female faculty.  There is no reason to expect the pandemic turned the table on this gendered expectation.

The upheaval caused by the pandemic, including increased care-work,  likely is negatively impacting some faculty members’ ability to engage in scholarship and the impact may not be evenly distributed across the board.  Initial data in higher education, based on journal submissions, suggests that the pandemic has had a more profound effect on women’s scholarly productivity than on that of their male colleagues.

The ability to be as productive a scholar as colleagues less burdened by familial, student, and institutional needs and expectations is an admittedly small problem compared to those dealing with deaths, significant health challenges, lack of food and shelter, and a host of other pandemic related issues.

It also is important to note that in some cases, the care burdens are falling to male faculty and that many women faculty have been incredibly prolific in the last couple of months.  Nonetheless, initial data suggests that, on average, women faculty members’ ability to produce scholarship during this pandemic is not equivalent to that of their male colleagues, thus potentially exacerbating a system already rife with gender inequities.

While the data looks only at gender, given the pre-pandemic literature on heightened student care work and institutional service expectations for faculty of color, it is reasonable to think that further study will show disparities there, too.

Below are some suggestions for addressing the added disparities created by this pandemic.

First, many universities have extended the tenure clock by one, and in some cases, up to two years.  Faculties should press those universities that have not yet done so to change their tenure clock policies. To help persuade those reluctant to make the change, it may be useful to point to emerging studies on how the pandemic exacerbates already existing gender inequities when it comes to time available for scholarship. Pushing back the tenure clock policies acknowledges the unique circumstances all faculty may face, and helps lessen some disparities resulting from pandemic-related care-taking.  Faculties also should ensure that those who take the extra time are not judged poorly for doing so.

Second, faculties and universities, in assessing tenure and promotion portfolios, should generally acknowledge that biases exist in evaluating faculty with similar qualifications.  In the Covid-19 era, it is even more important to identify the realities facing many faculty members, and the implicit biases that affect judgments about scholarly quality and productivity.

Third, in making promotion, tenure, or merit award decisions, those assessing scholarly productivity need to consciously fight the instinct to engage in comparisons of faculty members’ scholarly productivity during the pandemic.

Finally, all faculty need to take a deep breath and recognize the stress we all are under.  We need to give ourselves, and each other, permission just to get through this and not also feel the need to be prolific scholars in a time when, for some folks, making it through the day takes everything they have.

 

The Coronavirus Crisis Provides an Opportunity to Adopt Better Systems for Licensing Lawyers than the Bar Exam

The ABA Journal recently published an article entitled Bar Exam Does Little to Ensure Attorney Competence, Say Lawyers in Diploma Privilege State, describing the experience in Wisconsin, the only state that currently has the “diploma privilege.”  Under the Wisconsin rules, in-state law school graduates can become licensed without taking a bar exam.  These graduates must satisfy character and fitness requirements and complete at least 60 semester credits, including “at least 30 credits in courses including constitutional law, criminal law and procedure, jurisdiction of courts, pleadings and practice, and ethics and legal responsibilities of the profession.”

At one point, 34 states had diploma privilege rules but then the “ABA Code of Recommended Standards for Bar Examiners stated individuals should not be admitted to practice without passing a written bar exam.”

The issue of diploma privilege arises now because this year’s graduates may not be able to take bar exams due to the coronavirus crisis.

The article quotes former Wisconsin State Bar President Franklyn M. Gimbel saying that “whether [Wisconsin law school graduates] passed a bar exam … has no bearing on their lawyering abilities or character.”  He rejects the claim that bar exams ensure competency, arguing that this idea is “baloney.”

Keith L. Sellen, director of Wisconsin’s Office of Lawyer Regulation said, “My experience in 20 years of disciplinary regulation informs me that the causes of professional misconduct have little to do with whether the lawyer took a bar exam or was admitted by diploma privilege.  These causes are, in general, a poor or nonexistent mentor;  anxiety, depression and chemical dependency;  inadequate organizational skills;  character issues;  and a lack of business acumen.”  Obviously, none of these factors are measured on bar exams.  Of course, they are not in legal curricula very much either.

Predictably, the National Conference of Bar Examiners, which develops and produces attorney licensing tests, likes the system of bar exams and sees problems with a diploma privilege system.  It published a white paper identifying problems of reduced mobility, inconsistency between states, subjectivity, and conflicts of interest for law schools being both educators and licensing authorities.  Many of these problems are even greater, however, in a system of state bar exams.

Adverse Impact on Legal Education and Practice

The ABA Journal article doesn’t address distortions of legal education caused by bar exam requirements.  For one thing, bar exams entrench a pedagogy based on memorization of a lot of complex legal rules.  They are swords of Damocles hanging over schools’ and students’ heads.  They privilege some doctrinal courses and discourage students from taking practice-oriented courses because those courses will not help them pass the bar exam.  They also help feed the US News monster.

Bar exams produce one-shot high-stakes summative assessments of dubious validity based on answering hypothetical exam questions.  Bar exams provide binary results – pass or fail – and we can’t have confidence in the validity of results within a range above and below the threshold for passing.

Bar exam pass rates are part of the certification requirements for law schools.  Some law schools have low bar passage rates which may reflect low-quality education.  These schools generally admit students with the poorest academic credentials, so bar pass rates are not necessarily valid indicators of the quality of instruction.

The bar exam system requires a massive, costly infrastructure in law schools, bar review courses, and state bar bureaucracies.  In addition to the financial cost of the status quo, bar exams impose a huge intangible cost on graduates in terms of anxiety in studying, taking, and waiting for results of bar exams.  Test-takers who fail and re-take the exam lose confidence, time, and money.  Critics argue that bar exams improperly discriminate and have other flaws.

Better Ways to License Lawyers

We need mechanisms to protect law students and legal clients, and there may be better ways to do this than by perpetuating the bar exam infrastructure.  Redirecting resources from this infrastructure could produce better results at less cost.

Wisconsin, New Hampshire, and some countries have developed alternatives worth considering.

New Hampshire licenses some students through the University of New Hampshire’s  Daniel Webster Scholar Honors Program.

Students are accepted into the program prior to their second year of law school and discover first-hand what it takes to succeed in today’s legal marketplace. They hone their skills in both simulated and real settings – counseling clients, working with practicing lawyers, taking depositions, appearing before judges, negotiating, mediating, drafting business documents – while creating portfolios of written and oral work for bar examiners to assess every semester. … Successful Webster Scholars pass a variant of the New Hampshire Bar exam during their last two years of law school and are sworn into the New Hampshire bar the day before graduation.  They are also eligible to sit for the bar exam in any jurisdiction outside New Hampshire for which they would qualify having graduated from an ABA-accredited law school.

In some countries, law school graduates are required to do post-graduate apprenticeships, sometimes called “articling” or “pupillage.”  In apprenticeship systems, graduates develop practical legal skills by performing legal tasks and getting formative feedback from mentors.

Inevitably, alternative mechanisms are imperfect and need to be designed well to produce good results.  Considering the dysfunctions of the bar exam system, alternatives are worth considering.  States could offer multiple paths to licensing lawyers within their states.

When routines are in flux during and after major crises, institutions sometimes initiate major changes in their systems.  The disruption caused by the current crisis could prompt substantial changes in the system of licensing American lawyers in the new normal for lawyers after the crisis recedes.

To adopt alternative systems, there would need to be substantial concerted efforts to overcome resistance from principled defenses, vested interests, tradition, and inertia.

Normally, these forces preserving the status quo would be insuperable.  The current crisis could provide the impetus for change – but don’t bet the farm on it.

Clinical Legal Education Association Position on the 2020 Bar Exam

The leading national organization of Clinical Legal Educators – CLEA  today issued a statement about the 2020 Bar Exam.  The statement calls for State authorities to be “pragmatic, flexible and caring” and to promulgate regulations “that expand the availability of legal representation for underserved clients and equitably account for the impact of the COVID-19 crisis on recent law school graduates. ”

The statement poignantly notes

While we are strongly drawn to precedent and tradition, as are all lawyers, we urge that strict adherence to the current model of a single, highstakes, timed bar examination as the primary gatekeeper to the profession will needlessly
exacerbate inequality and further injustice during this pandemic.

CLEA has long critiqued the bar exam and “repeatedly urged that supervised practice and other experiential assessments would much better protect our clients and foster professional excellence.”

The statement elegantly concludes

We must try to better meet the legal needs of underserved groups and respond with care, concern and thoughtful reforms to the very serious challenges those striving to enter our profession face in this unprecedented time of crisis. Let us not look back and regret that we did not give enough attention to the least fortunate among us and let inequality flourish in disaster.

Fifteen Simple Ways (“low hanging fruit”) for Law Professors to Integrate Professional Formation and Development into Online Classrooms

by Sara Berman and Neil Hamilton

During this spring semester, legal education like nearly all education sectors, underwent an overnight revolution, moving from largely an in-person to an online delivery format. Educators have had to adapt to not only to new technologies but to new ways of communicating, adopting many new teaching and learning methods, new grading policies, and more. Understanding that many law faculty have been completely overwhelmed by having to change so much so rapidly, but knowing also that this change will continue, in all likelihood, into this summer and fall, we propose some simple steps that faculty can take to incorporate professional formation and development into online law classes, all of which can be employed in in-person classes as well.

I. Contextual Background

First, what is meant by professional formation and development?  Many publications have detailed these concepts at length.[1] For the sake of brevity here, each student should demonstrate an understanding and integration of:

1. Pro-active professional development toward excellence at all the competencies needed to serve others well in meaningful employment; and

2. An internalized deep responsibility to others, especially the client and the legal system, whom the student serves as a professional in widening circles as the student matures.

There are several key principles that should guide the development of strategies that foster professional formation and development. Holloran Center scholars have been building a framework of key principles to guide the development of the most effective curriculum, culture, and assessments to foster each student’s growth toward later stages of development on the two foundational professional formation and development competencies,[2] conducting research and analyzing scholarship on (1) higher education in other disciplines, particularly medical education, (2) moral psychology, and (3) self-directed/self-regulated learning.

Four research windows agree that an effective curriculum (including assessments) that promotes the two professional formation and development learning outcomes should:

  1. Take into account that students are at different developmental stages of growth and engage each student at the student’s present developmental stage – Go Where They Are;
  1. Provide repeated opportunities for reflection on the responsibilities of the profession and the habit of reflective self-assessment in general;
  1. Emphasize experiential learning, feedback on the student’s performance, and reflection; and
  1. Emphasize coaching.

An additional research window suggests the following curricular engagements to foster each student’s growth toward the two professional formation and development learning outcomes:

5. Experiences that create cognitive dissonance/optimal conflict with the student’s current developmental stage on either of the ethical professional formation and development learning outcomes;

  1. Instruction that helps the student understand how new knowledge is building on the student’s prior knowledge and competencies (student’s existing narrative);
  1. Instruction that helps each student understand how the professional formation curriculum assists the student to achieve his or her goals; and
  1. Instruction that helps each student understand and implement specific steps to grow toward later stages of development.

II. Fifteen simple questions or strategies

We need to remember that this generation of law students also experienced the Great Recession of 2009-11; now they are experiencing the current crisis and will in all likelihood face yet another serious recession or more dire economic struggles ahead –not to mention health and safety related hardships.  The questions/strategies below may be helpful to provoke constructive reflection and discussion, and hopefully to positively channel at least some important concerns about moving forward in their professional lives in this challenging context.

The following are questions that a professor can pose to students to spark self-reflection and awareness about professional formation and development:

  1. “Assume you meet a lawyer who could be important in your employment search and the person asks some version of, ‘What did you learn in this crisis?’  Write a brief answer to this question –or record a brief video of yourself answering this question.” 

The teaching opportunity suggested with this writing prompt is to provoke thoughts about this underlying query: “What did you learn that would be useful to an employer?” Thoughtful answers would go toward versions of I learned adaptive capacity skills, perhaps with words such as: a) “I learned that I know how to figure out solutions to a host of unanticipated changes and challenges,” b) “I made X changes to adapt to Y challenges.” Or, c) “Actions I have taken so far and/or will take to adapt and eventually thrive, even in the face of many challenges, include Z].”  Student answers might include specific examples of “grit,” “resiliency,” and positive or growth mindsets that helped them through pandemic-related challenges offering evidence that the student would demonstrate similar resilience as a future professional.[3]  Note: where students video themselves, they are also simulating how they might orally respond to such a question in an interview.

  1. Same situation as in the first query but posing this question: “What did you learn about the organizations, businesses, or business sectors you observed?  Write specific examples of how they reacted, adapted, or failed to do so during the pandemic.”
  1. Talk to a person whom you know who has experienced and transcended a crucible in life and ask what they learned from the challenges going forward.  As students: “What did you learn by asking the question and/or from the response?  What follow-up questions did you ask and why?”
  1. At the end of a Socratic Q & A session (in-person or online), ask students to write down any other questions they would have asked if they were the professor. The ability for students to see themselves in a professional role, here as professor, is critical to making the successful transition from student to professional.

The following are actions that a professor can take to support students while encouraging their professional formation and development:

  1. If you are comfortable doing so, talk with your students about the crises/crucibles/difficult times in your own professional life or the life of your clients, noting what you and they learned?
  1. Log on to synchronous online classes 10-15 minutes early or stay for 15-20 minutes after class to talk and listen to students’ comments about “life” and in particular about their professional life and concerns during this crisis.  This underscores the notion that a vital part of professional life is to engage in collegial discussion; it stresses the importance of personal connection as an integral part of professional work.  You might analogize “official” class time to office work time, and these pre- or post-class discussions to attending bar association meetings or receptions with colleagues. Taking just a few minutes before or after class also promotes belonging and work-life balance and underscores the importance of continuing to engage in personal and professional networking, especially as students are facing extraordinary health, financial, and psychological stress, and are forced to stay at home.
  1. As a faculty member, attend an extra-curricular event led by the Dean of Students, the Career Services office, the Academic Support faculty, and/or an event organized by a law student affinity group, and sit in the audience if invited when LRW faculty hold oral arguments. Attend these now, virtually, and plan to attend in person when you can.  Law schools host many events to help students, some of which are part of programs you strongly believe in. Theoretical support is important, but your presence (online or in person) as a faculty member, even for a few minutes, carries far more weight that you will ever know in terms of whether students take such programming seriously. This will also help students realize as future professionals how important their presence will be at law office functions, networking opportunities, and community events.
  1. Provide extra credit in class for students who make thoughtful explicit connections between classroom assignments and any outside pro bono work they are doing or plan to do. There will continue to be limitless opportunities for meaningful pro bono work as society weathers this storm – assisting with unemployment issues, bankruptcies, evictions, and more. Share with your students (in an email, recorded message, or synchronous online class) any pro bono work you are doing or examples of pro bono work you did in the past, noting how it has made you a better lawyer and more competent and empathetic professional.
  1. Tell students why you went to law school, and ask them to think about why they came to law school. (You can send this as an email, post it as a discussion board exercise in the LMS, or bring it up in a Zoom or other synchronous class.) Tell them about how your purpose with respect to your understanding of what it means to be a member of the profession may have changed over the years. Is it changing now in this crisis?  

For faculty involved in planning fall Orientations, think about including time for incoming students to write a Why Law School letter to themselves; collect the letters and return them to students during the summer between 1L and 2L and again before they begin bar exam preparation. Finding one’s “why” and holding fast to it are critical to success in law school, on the bar exam, and in practice.[4]

  1. When students pose a question or answer a question in a way that demonstrates that they listened to (or read) a previous student’s comments and integrated those comments thoughtfully into their new question or comment, the Professor can drop an email or instant message note saying, “The way you asked (answered) this question shows you listened carefully to your classmate’s comments (or listened to and recalled a dialogue from one of our last classes). That’s great! Critical listening (or critical reading) skills are among the most important qualities of a successful lawyer. As just one of many examples, you might well find yourself in the position of eliciting more important information and posing better, more thoughtful follow-up questions because you critically listened to a witness’s answers in a deposition. Thank you again for your thoughtful question/comment. And, keep developing this important skill.”

Little time is needed to reinforce and praise professional behavior and the demonstration of critical lawyering skills; the potential for positive impact on student engagement, well-being, and learning, in addition to on their professional formation and development is great.

  1. Professors can also help students improve listening skills by periodically stopping class (in-person or in a synchronous online class), for example after you have posed a question, and asking students to write down what you just asked (noting whether they believe they heard and understood your question) and then email you their answers. Collect the answers and choose some to read or post, anonymously. Warn students in advance that you will be doing this. And, be transparent about the nature and purpose of this assignment: to encourage individuals to sharpen their own listening skills. You can also use this exercise as an opportunity to explain the purpose of questions generally in the law school classroom – that they center not just on the 1-on-1 between professor and student, but on everyone collectively listening carefully (or reading questions posted on bulletin boards), just as they will need to listen to clients, colleagues, and witnesses. (Similar exercises can be useful to help students train critical reading skills.)
  1. Distribute (via email or on a discussion board) a master list of the key skills/qualities of competent lawyers (for example from Schultz and Zedek or IAALS) and/or note (in live class, by email, or on discussion board) a few of the key skills/qualities that you believe the work you are doing is helping to train during each class so that students can “check in” and ask themselves if they are honing these skills. Reading such practice-minded lists will empower students who are building certain skills but still working on others to continue to believe that they “have what it takes” to become competent lawyers. (You might also ask students to consider which competencies are most relevant to help clients in a crisis.)
  1. Bring guest speakers to online and in-person classes, such as practitioners who can talk about the entire range of competencies needed in the various areas of practice.[5]  Guest faculty can also provide insights into differing perspectives on parts of your courses. CALI.org has posted a list of professors willing to Zoom into classes as guest lecturers at https://www.cali.org/content/guest-speakers-available-remote-teaching-law-school-courses-coronaviruscovid-19
  1. When/if you give formative assessments (in-person or as part of asynchronous or synchronous online learning), make explicit which of the lawyering competencies each assessment is measuring – how and why. Provide concrete examples of the transferability of skills from success in law school and on the bar exam (where applicable), to success in law practice and as professionals.
  1. Give a talk (in a synchronous online class or in a recorded message), before the end of the semester if possible, or during this summer, to try to blunt the pain that the law school curve can bring and to encourage all of your students to feel that they belong. Even though many schools have changed the grading policies to pass/fall for the spring 2020, many students will be even more concerned about their law school GPAs and their potential impact on future employment. Now more than ever is an important time for students to read the Roadmap.[6]

There is no one right message; this has to be authentic for each professor. But, an example might include something like, “You are all used to getting A’s. You cannot all get A’s in law school. What you can all do is your best, and can and must, as professionals, engage in continuous learning and improvement. If your grades and/or comments on exams do not reflect the quality of work you will need to be doing to best serve clients when you graduate, please talk with me; ask me to review your exams and help you determine how to improve. The career path of great lawyers involve continuous improvement. Your goal is to be a lifelong learner.”

III. Conclusion

As noted at the outset, the authors applaud law faculty nationwide whose nimbleness served as irrefutable evidence of a collective dedication to students and to the continuity of graduating future leaders who will protect the rule of law. The suggestions in this paper are merely that, thoughts on some simple steps to incorporate professional formation and development into online law classes. The authors hope that these suggestions spark ideas for faculty to adapt as they choose, and that a discussion will continue to further develop both additional simple steps and more comprehensive programming on professional formation and development in online and in-person formats, as we weather the storms resulting from and adapt to changes required because of the 2020 pandemic.

The authors are available to discuss these further and encourage readers to contact the authors with additional strategies for integrating professional identity formation into legal education. This list will be updated and available on the Holloran Center website.

Neil W. Hamilton, Holloran Professor of Law and Co-director of the Holloran Center for Ethical Leadership in the Professions. https://www.stthomas.edu/law/facultystaff/a-z-index/neil-hamilton.html;  SSRN author page

Sara J. Berman, Director, Academic and Bar Success Programs, AccessLex Center for Legal Education Excellence; formerly held Assistant Dean and Director positions Whittier and NSU Law Schools, and served as faculty and in senior administration of nation’s first fully online law school. SSRN author page


[1] See generally body of work collected at https://www.stthomas.edu/hollorancenter/resourcesforlegaleducators/publications/

[2] These general principles here appeared first in Neil Hamilton, Formation-of-an-Ethical-Professional-Identity (Professionalism) Learning Outcome and E-Portfolio Formative Assessments, 48 UNIV. PACIFIC L.REV. 847, 856-59 (2017).

[3] Neil Hamilton includes many additional strategies to help students and for students to help themselves to pave the way toward developing meaningful employment opportunities in Roadmap: The Law Student’s Guide to Meaningful Employment, Second Edition (ABA Publishing, 2019).

[4] Purpose-driven learning is a cornerstone of bar success, as Sara Berman writes in the introduction to Bar Exam Success: A Comprehensive Guide (ABA Publishing 2019).

[5] Inspired by her civil procedure professor who brought a journalist to class to discuss the differences between the types of questions lawyers ask and those that journalists ask, and why, providing an engaging deep dive into the importance of facts generally, author Berman regularly invited police officers to her in-person criminal procedure classes and a family court judge to her online community property classes, which resulting in The Courtroom Comes to the Classroom, a collaboration between Professor Berman and Judge Mark Juhas.)

[6] See Roadmap, supra at note 3.

 

Rise in Wellness Blog Q&A: Part 2

Q: Introduce yourself! What’s your name/class year/any extracurriculars/area of interest/etc.?
A: Olivia Cox, 2021, Executive Editor of Albany Government Law Review, Vol. 14; cello teacher/teaching artist for Empire State Youth Orchestra’s CHIME program.

Q: Can you give us some background on what the Wellness Initiative is and how it got started?
A: In 2018, the Wellness Initiative was establish to raise awareness of issues related to health and wellness, provide resources for members of the law school community who are dealing with issues related to mental health and wellness and provide educational programming related to mental, physical, social, financial and academic health and wellness within the law school community. The Colby Fellowship was created to allow students the opportunity to participate in various wellness based activities, provide resources to students, and to help bring greater awareness to the importance of a holistic, balanced lifestyle. The Colby Fellowship is named in honor of our generous donor, Trustee Andrea Colby ’80.

Q: Why did you choose to get involved in the Wellness Initiative and become a Colby Fellow?
A: Wellness/Mental Health has always been very important to me. I have always believed that all my accomplishments are for naught if I don’t have my health. This sentiment seems to be lost in the law school environment due to its competitive nature. I hope our events and Blog remind students of the importance of mental health and wellness, especially during law school.

Q: What has the Wellness Initiative done this year at Albany Law School?
A: This year, unfortunately, was cut short by the COVID-19 pandemic, but that has not stopped us from soldiering on with our wellness programming. We have held several yoga/meditation classes, hosted speakers, including Brian Cuban, and various relaxing activities during finals.

Q: What is the Wellness Blog? What kinds of topics have you written about and what do you plan to write in the future?
A: The Wellness Blog is Albany Law’s central hub for wellness tips, resources, updates, upcoming events and more. We’ve posted a Q&A with a yoga teacher, volunteer opportunities, and about various events we have hosted. However, the Blog is getting a lot more traffic since the onset of COVID-19. We have been compiling and posting all sorts of resources, in addition to posts from guest writers about how best to work/learn from home.

Q: What’s your ultimate goal for the Wellness Blog?
A: I hope that students will enjoy reading the Blog as much as I have enjoyed writing the Blog. I hope it becomes “one of those things” that students check often, like Canvas or TWEN.

Q: Who can post to the Wellness Blog?
A: Anyone! Currently, it is primarily Carly and I creating content for the Blog. However, we welcome contributions from anyone and everyone. Professors, students, and faculty alike are all welcome to post on the Blog. Just send us your article/post and we will post it!

Q: Do you have any advice for other schools that might want to start a Wellness Initiative?
A: “If we build it, they will come.” It sounds cliché but it’s the truth. At first you may not have many participants, but over time more students will become interested. Mental health and wellness are often put on the back burner during law school, but that is when it is the most important.

Rise in Wellness Blog Q&A: Part 1

Albany Law School established a Wellness Initiative, which is currently run by Carly Dziekan ’20, Olivia Cox ’21, and Rosemary Queenan, Associate Dean for Student Affairs. As part of the initiative, the team created the “Rise in Wellness Blog” – a blog devoted to health and wellness. Every week, the blog posts resources, wellness tips, updates, and upcoming events. I “virtually” interviewed Carly and Olivia to find out how the Wellness Initiative and Rise in Wellness Blog got started (“Part 1” will cover Carly’s interview and “Part 2” will cover Olivia’s interview).


Q:
Introduce yourself! What’s your name/class year/any extracurriculars/area of interest/etc.?
A: My name is Carly Dziekan and I am a 3L at Albany Law School and one of the Colby Fellows for the Wellness Initiative. I am also the Editor-in-Chief of the Albany Law Journal of Science and Technology. In my free time, I enjoy running, biking, and recently started kickboxing! Especially in light of this pandemic, it is even more important to take care of yourself physically and mentally as best as we can.

Q: Can you give us some background on what the Wellness Initiative is and how it got started?
A: The Wellness Initiative started in 2018 by a recent graduate who saw a need for an administrative initiative devoted to law student mental health, wellness, and overall wellbeing. The administration and the students then took on the ownership together and it has been growing ever since! This initiative is still very new, so we are open to any and all suggestions!

Q: Why did you choose to get involved in the Wellness Initiative and become a Colby Fellow?
A: Law school is a challenging time in so many ways, and it challenged me in ways I never expected. I am very lucky to have an incredible support system and to have already had coping mechanisms and wellness habits grounded in me before law school. Even so, I still struggled. I was excited to become involved in the wellness initiative to help other students who may not have had the experiences I have had, and to show them that help is out there is they need it and we are here for them.

Q: What has the Wellness Initiative done this year at Albany Law School?
A: This year, we have had monthly yoga class on campus (and now via Zoom), a Mental Health Week in honor of World Mental Health day, an impactful keynote speech by Brian Cuban, programming for 1L students discussing the stress of finals, and other educational and recreational wellness centered events.

Q: What is the Wellness Blog? What kinds of topics have you written about and what do you plan to write in the future?
A: The Wellness Blog really turned into a way to update students with COVID-19 resources. Now more than ever, wellness and mental health in law students is a huge issue. (Rest of the answer morphed into the question below)

Q: What’s your ultimate goal for the Wellness Blog?
A: The idea of the blog started when I got a flat tire and didn’t know where to get it fixed as I am not originally from the Albany area. It got me thinking: how many people are having this problem? I wanted to create a central location where students could get information on various resources in Albany, from gyms, to restaurants, to car mechanics, to mental health resources. Another goal is to also highlight all of the work we are doing on campus related to wellness as well as what other schools and organizations are doing.

Q: Who can post to the Wellness Blog?
A: The Colby Fellows run the blog, but anyone can contribute! Send Olivia or I an email and we would love to have others write a piece.

Q: Do you have any advice for other schools that might want to start a Wellness Initiative?
A: Don’t get discouraged. This work is so important and necessary but it takes some time to gain traction. Sometimes, even if an event isn’t well attended or no one “responds” to your post, trust me, people read it or heard about it and it impacted someone. Which is what really matters. Now that the initiative has been around for a bit, more students are aware of the work we are doing and much of it has been de-stigmatized.

New York State Bar Association Leads with Bar Exam Questions

Patricia E. Salkin*

On April 4, 2020 the New York State Bar Association once again delivered a resounding thumbs down to the Uniform Bar Exam (UBE) as a measure of competency to practice law in New York.  Five years earlier, the Association’s Committee on Legal Education and Admission to the Bar delivered a report that was overwhelmingly approved by the House expressing the sense of the profession that a move to the UBE was a bad idea. 

The NYSBA Committee on Legal Education and Admission to Bar (CLEAB), which had long studied the bar exam, hosted a session during the annual meeting on January 16, 2019 titled, “A Question of New York Law: Should It Be Taught in Law Schools and Tested on the Bar Exam?”  A preview to that discussion, “The Role of State Law in Legal Education and Attorney Licensing,” was published in the New York Law Journal the week prior.  In April 2019, the NYSBA Task Force on the Bar Exam was appointed by President Michael Miller, “to investigate and report on the experience and impact of New York’s adoption of the UBE.”  Then president-elect Hank Greenberg stated, “New York law has long been the gold standard in American jurisprudence. The bar exam should play an important role in ensuring that newly admitted lawyers appreciate the importance of New York law, and have an appropriate grounding in it.”

On March 5, 2020, following a series of statewide hearings on the bar exam, the Task Force, chaired by the Honorable Alan Scheinkman, Presiding Justice of the Appellate Division, Second Department, released its report and recommendations.  The report contains an accurate and detailed description of meetings, stakeholders and the decision-making process that ultimately led the New York Court of Appeals, under the leadership of former Chief Judge Jonathan Lippman, to abandon the New York Bar Exam (NYBE) in favor of the UBE; and the report starkly concludes that “…since the adoption of the UBE, the fundamental purpose of the bar examination has been lost.” (emphasis added)

Accompanied by analysis of findings and explanations to support their positions, the Task Force made the following recommendations to chart a path forward for the licensing of new attorneys in New York:

  • Eliminate the New York Law Exam and replace it with a rigorous exam on New York law as a prerequisite to admission to the New York bar.
  • Conduct an independent psychometric analysis of the grading and scaling of the UBE.
  • Allow those who do not wish to practice law in New York to take only the UBE and allowing those who only wish to practice in New York to take only the Multi-State Bar Examination section of the UBE and the rigorous New York test.
  • Consider a New York law Certification program that would allow people to forego the bar exam entirely. Under this program, ABA-accredited law schools inside and outside of New York would offer courses that include New York law-based content.
  • Consider an experiential learning pilot program, which would allow second and third-year law students to spend time counseling clients, working with practicing attorneys and learning other practical skills so that a portfolio of work is created and assessed every semester.

These recommendations are welcome, especially the last two items which get to the heart of what many thoughtful national experts have maintained are the more accurate measures of competency to practice law. While under normal circumstances, degree privilege plus programs that incentivize curricular choices (in this case more New York law) and require client-focused legal skills experiences are the better measures of basic competencies, the strange confluence of the timing of this report and the COVID-19 pandemic has created a fortuitous opportunity to test some of the recommendations in the report.

The fact that this Task Force was in existence and already working on bar exam issues led NYSBA President Hank Greenberg to ask the group to separately opine on the challenges surrounding the then-scheduled July 2020 uniform bar exam in New York. Greenberg has been a staunch advocate for the soon-to-be members of our profession noting, “Graduating law school students are experiencing high levels of anxiety and distress as their lives and potential livelihoods have been significantly disrupted, and we are focused on making sure that their concerns are being heard and responded to by policymakers.”  The Task Force recommended postponing the July 2020 bar exam until early September and if the exam is still impossible at that time, then to expand practice orders to enable new graduates to begin supervised practice while waiting for a bar exam to be administered. 

While the Court of Appeals under the leadership of Chief Judge Janet DiFiore has accepted the State Bar recommendations, much more needs to be done to clarify the status of the developing procedures for licensing lawyers from the Class of 2020.  Another blog dedicated to pragmatic discourse on how to best license new lawyers who are getting ready to take their first bar exam during the COVID-19 pandemic is documenting the thoughtful and reasoned ways in which many state licensing jurisdictions are rethinking the value of the traditional bar exam limited to the unique challenges presented during the COVID crisis.  Law deans and faculty, law students and members of the profession, importantly including the leadership of the State Bar, are engaged in thoughtful dialogue on this topic with the Court of Appeals to arrive at a fair and just resolution for the Class of 2020. 

Some may think it unfortunate for the NYSBA Bar Exam Task Force to have issued its critique of the UBE at the same time that we are experiencing an unprecedented disruptor in the practice of law and in the administration of justice. However, this is precisely the time that New York can lead the country with piloting alternative ways to license lawyers with a reasoned roadmap prepared not under the pressure of the pandemic, but rather after a year-long focused study that supports the concept that there are different and equally effective, if not better, ways to assess candidate competency for admission to the bar in New York.

*Patricia Salkin is Provost of the Graduate and Professional Divisions of Touro College. She is a legal educator and a past co-chair of the NYSBA Committee on Legal Education and Admission to the Bar.     

Book Launch: Come for the Free, Online CLE: Stay for the Conversation

A great opportunity to listen to someone who has been given thought to this timely issue. And he is one of our contributors!

the Future of Change

I am deeply honored to announce that on Tuesday, April 21st, at 4:30 p.m., Albany Law School will be hosting a virtual book launch for my new book, The Future of Change: How Technology Shapes Social Revolutions.  In addition to what I hope will be an interesting and compelling talk, which I am working hard to deliver, lawyers can also get one free credit of NY CLE!  Please join if you are able.  Register at this link so we can send you the Zoom invite.

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Disparate Impact Magnified: Holding a Bar Exam during the COVID 19 Pandemic year of 2020

Yesterday the Harvard Law Review blog posted an excellent piece by a powerhouse group of legal educators who describe the prospect of a “licensing abyss” just when non-privileged folks and small businesses will need extra legal assistance to navigate the health, employment, housing and government benefits legal landscape.  On the same day, the ABA also urged states that cancel or delay the bar exam to  license law grads on an emergency basis “to help address the increase in legal needs for individuals and businesses caused by this pandemic.”

The Harvard blog authors note, in addition, the the reluctance of bar examiners and courts to find alternatives to the “closed-book, two-day exam anchored in 200 multiple-choice questions” despite the option of so many good alternatives that may well better predict competence to practice law. The authors ask,

Why do our courts and bar examiners place so much faith in this high-stakes exam to predict who is competent to practice law?

This question has puzzled readers and contributors of this blog particularly in light of the discriminatory nature of “speeded” exams  and the economic call for practice-ready lawyers. It is also puzzling when the profession itself is so deficient in diversity and standardized tests are used in ways that preference the privileged.

For 2020, the issue of disparate impact with respect to timed, closed-book exams anchored in multiple choice questions is further exacerbated by law students’ quarantine and sheltering conditions while studying for the bar exam- see the excellent piece in the NYT on how students returning home to attend classes removes the veneer that all are equal. Even more disturbing and heartbreaking is the information surfacing this week about the horrific disparate impact of COVID19 deaths on Americans of color.  Pre-existing disparities in trauma, housing, employment, healthcare, opportunity, discrimination and historical DNA exacerbate the distress and fatalities for communities of color and for those whose families and friends are populated by people of color.  Some of us – particularly our students of color – will be affected in disproportionate ways and in ways no one can predict or control over the course of the coming months.

As the authors of the Harvard Law Blog wrote, “Crises challenge assumptions and demand action. For this year, emergency licensing based on diplomas and periods of supervised practice would offer proof of competence.”  To do otherwise would demonstrate an inability of our profession to adapt and experiment, and a shocking refusal to recognize and correct disparate impacts.

NYS Law Students Urge Highest Court to Expeditiously Announce Alternatives to September Bar Exam

Throughout the country all of us are being asked to change, adapt and respond in unprecedented ways as we experience global pandemic, quarantine, loss, fear, empathy and grief.  New York’s situation seems at this moment most dramatic as the deaths due to the virus surpass those from September 11th.

Two days ago, on April 1st,  law students from the 15 New York law schools eloquently and compellingly argued for the highest court to recognize this unprecedented moment and act accordingly in their Student Letter to Chief Judge DiFiore . In addition, the 15 deans of New York Law schools co-wrote and submitted a similarly persuasive Letter from New York Law Deans to Chief Judge DiFiore.

Yesterday, April 2nd,  the National Law Journal published Judith Wegner’s An Immodest Proposal. Professor Wegner, the innovative co-author of the pathbreaking Carnegie report Educating Lawyers calls for state bars and courts to:

  1. Recognize the factors that are impeding meaningful responses;
  2. Mitigate immediate problems through supervised practice rules;
  3. Consider adopting an emergency provisional licensing system; and
  4. Recognize that other options also deserve attention.

It is incumbent upon the New York Court of Appeals to act swiftly and with innovative  measures to effectively respond to the informed voices of  New York’s law students and law deans.

Adapting to the New Normal: Tips for Socialization While Social Distancing in Law Schools

I don’t think any of us realized that the day before spring break would be the last day we would be able to walk the halls of Albany Law for a while – I know I didn’t. In fact, I couldn’t have been more excited to escape that building in anticipation of vacation. But now, I miss waving to friends, catching up between classes, and the feeling of being in the Rochester Moot Courtroom. No one expected to have to transition the entire law school online to keep loved ones safe from COVID-19.

What we need now in this time of crisis is leadership and yes, even law student leaders can play a part. In light of the current situation, student leaders at Albany Law School put on their creative thinking hats to try to maintain a sense of community by offering “virtual events” and a list of online resources. Having a sense of community brings us together and keeps us feeling connected when we can’t physically be with one another. It keeps our relationships developing and our heads kept high. Most importantly, it provides a space for support, which is something we desperately need right now.

I thought of the idea for “Pet Happy Hour” when I was experiencing my first “Zoom” class. It was just a “test” class, so there was no substantive material being discussed. Then, several students “brought” their pets to class. Everyone in the class immediately started to smile – like instant therapy! I thought about how special our pets are and how animals can help us destress. Then I thought it would be fun to host a virtual event where students could show off their pets and wind down from the week with one another (and grab a drink). Since the inception of this idea, my student group has teamed up with two others to promote this therapeutic space to the rest of the student body. I’m excited to admire everyone’s pets and of course, show off my own!

Here are a list of the events/resources, which you could potentially recommend for your school:

  1. “Pet Happy Hour” – Several student groups teamed up to host a virtual pet happy hour on Zoom, where participants are being asked to bring their pet (or come admire other pets), grab a drink, and hang out.
  2. “Virtual Murder Mystery Night” – A student group will be hosting a virtual murder mystery game night. Participants are asked to sign up beforehand on a public google spreadsheet to ensure they receive character information before the game. (Note: there is a small cost associated with purchasing the game packet. ~$2 a person).
  3. “Virtual Meditation” – One of Albany Law’s very own professors leads a meditation session on Zoom every Friday at 12PM.
  4. “Virtual Exercise” – The Wellness Initiative at Albany Law is hosting a virtual yoga session and HIIT class for students on Zoom.
  5. “Rise in Wellness Blog”The Wellness Initiative at Albany Law has a blog with many resources listed including resources specific to COVID-19. A post by our Director of Communications and Marketing provided 5 excellent pieces of advice for working from home. Here they are quickly summed up:
    1. “Create a routine”
    1. “Keep a dedicated working space, if possible”
    1. “Make ground rules”
    1. “Take advantage of technology”
    1. “Stay positive”

It’s certainly a stressful time, but I think it helps to know that none of us are alone – we’re all in this together. Just because we are social distancing, doesn’t mean we can’t still stay connected. I urge other law schools to use some of the resources I’ve provided or find other creative ways to keep that connection with students. If your school has some other ideas, I would love to hear them in the comments!

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