Best Practices for Legal Education

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Law schools in Oregon are urging the Oregon Supreme Court to institute a Diploma privilege given the precarious public health moment in which we find ourselves.

The Willamette Week reported that on June 15,

the deans of the state’s three law schools—the University of Oregon, Lewis & Clark, and Willamette University—asked Oregon Supreme Court Chief Justice Martha Walters to waive the July bar exam, which new graduates from the law schools normally take.

The deans’ letter notes

We are deeply appreciative of the efforts of the Oregon State Bar and the Board of Bar Examiners to administer the July exam at multiple sites—including our law schools—in order to try to socially distance the applicants from each other in light of COVID-19,” the deans wrote. “But as the number of new confirmed and presumptive COVID-19 cases continues to increase steadily in our state, this plan becomes more imprudent.”

Advocates and bar takers compiled this google document of the health, mental health and financial harm which will be done by instituting a live in-person exam.

Meanwhile, the Oregon State Board of Bar Examiners added a new waiver requirement.  It is requiring bar takers to sign a waiver assuming all risk with respect to COVID 19.  See  COVID-19_assumption of risk.

The Deans and law students are quite reasonable and prudent in requesting this relief. Oregon’s worrisome rise in the number of new confirmed and presumptive cases of COVID-19, as well as the unequal impact of this virus on communities of color, makes the one-time issuance of a Diploma Privilege for these Oregonian bar candidates the right thing to do.

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The Washington Supreme Court stands as a model for other courts to follow.  Recognizing the “extraordinary barriers” facing bar applicants this year, it recently issued an order allowing for licensure via diploma privilege as an option for graduates of ABA accredited law schools who are currently registered for either the July or September 2020 Washington bar examination. The order encompasses first time and repeat takers.  Examinees may still take the UBE if they want portable scores.

This order comes from the same court that recently wrote a powerful letter to the judiciary and legal community about our responsibility to recognize systemic issues that underlie and perpetuate racial injustice and to dismantle and disavow those systems.  As the justices noted:

“Too often in the legal profession, we feel bound by tradition and the way things have ‘always’ been.  We must remember that even the most venerable precedent must be struck down when it is incorrect and harmful”.

Numerous scholars have long argued that the existing bar exam, with its discriminatory impact, and its lack of relationship to skills needed for law practice, is a tradition that should be abandoned in favor of a licensing scheme that better measures minimum competence to practice law.

Scholars also have argued that we particularly need this year’s new lawyers because under-served communities have significantly increased pandemic-related legal needs and new lawyers disproportionately serve those needs.

As Dean Annette Clark wrote in an eloquent letter explaining why her faculty unanimously voted in favor of asking the Court to adopt a diploma privilege – this year is unlike any other.  This year, she writes, law graduates face pandemic-related health and financial issues  – issues that disproportionately impact communities of color.  This year, she notes, the murders of George Floyd, Ahmaud Arbery and Breonna Taylor, and the social unrest and calls to action that followed have affected graduates and have taken a particularly heavy emotional and mental toll on graduates of color.

This year, the mere act of taking the bar exam endangers examinees’ and their loved ones’ health– something states recognize because they are requiring examinees to sign waivers.  This year, graduates worry that after months of studying, public health issues may cause states to cancel the exam at the last minute.

While a pure diploma privilege may not be an appropriate long-term law licensing solution for most states, it is a practical solution given today’s world.   As Dean Clark states:

 “While requiring a bar exam for licensure is supported by long precedent, doing so now may be insupportable given the extraordinary circumstances these graduates are facing. The burdens of the coronavirus pandemic and the racial unrest we are experiencing are being disproportionately borne by our graduates of color as they struggle to prepare for the bar exam.  Removing the exam barrier to admission would be a step in responding to our graduates’ concerns and in bringing “greater racial justice to our system as a whole.”

Dean Clark’s  letter should be read in its entirety.  It sets forth strong arguments that should be presented to all state supreme courts with a request for re-consideration of the decision to hold a traditional bar exam this year.  It also lays the groundwork for why each state should establish a post-pandemic study group to evaluate whether the existing bar exam is the best way to determine admission to the bar.

Kudos to the Washington Supreme Court, as well as to the deans, faculty and students at the Washington law schools for their advocacy.  Their solution addresses problems faced by all of this year’s graduates while also addressing inequities that cannot be denied.

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In this blog post Professor Allie Robbins eloquently sets out why, during this crisis, states should implement alternative law licensing methods. She argues states should forego in-person exams this year to avoid the inevitable health risks to bar-takers, their families, and the members of the public who come into contact with them. The entire blog is set out below. It’s a powerful piece that hopefully will find its way to state boards of bar examiners and state supreme court justices as “food for thought”.

“Please do not hold the bar exam this year. Do not hold it in July. Do not hold it in September. Maybe not even next February. Figure out a better way to license attorneys. There are many options.

Recent liability waivers from Mississippi and North Carolina demonstrate that you understand the serious dangers posed by taking a two-day exam in person surrounded by a lot of other people. The fact that you are finding it difficult to find proctors and are asking for help from “young attorneys” says that your own people are telling you it is too risky.

Putting hundreds, or even dozens, of stressed out people in a room together for hours and hours in the midst of a global pandemic is a public health disaster. Temperature checks only tell you if someone has a fever, not whether someone has the virus. Many transmissions if COVID-19 occur from asymptomatic individuals. Masks are helpful, but not 100% effective. Some of you are permitting masks but not requiring them, leaving many potential carriers the option of exposing those around them. Have you tried to do 100 MBE questions with a mask on? The anxiety surrounding the bar exam is immeasurably high in normal times. This, is taking it to an unimaginable new level.

There doesn’t have to be a bar exam. But if you think there does, you can do it online, as Nevada and Indiana will be doing. Those of you in UBE states may feel that you no longer have the capacity to administer your own exam. But you did it not that long ago. You can do it again. There are expert exam writers at your local law schools who can help. You could even work together and have each state draft one essay question. There are many options. Please explore them.

There are concerns about exam security. But if that is the driving force for having an in person exam, then you are prioritizing fears about cheating over the protection of human life. Do you really think so little of the next class of attorneys that they must risk their lives to prove to you that they would not cheat on an exam?

Ask yourself honestly, would you take the bar exam during this pandemic? Would you encourage your child to? Do you really want to be responsible for the next surge in your community?

You may counter that hundreds of applicants have registered so they must want to take it. But what they want is to be a licensed attorney. Their registration is a product of employer pressure, fear, and the perverse incentives of the legal profession. Despite their registration, they are terrified.

We owe it to the newest members of our profession not to sacrifice their health for the sake of the status quo. Nothing is the same right now, and it shouldn’t be. We are in the midst of a worldwide health crisis. Is the bar exam actually worth risking their lives for? Is there really no way to determine who is minimally competent to be an attorney, other than to have them all gathered together in a room for two days?

The purpose of the bar exam is, ostensibly, to protect the public. What about protecting law graduates?

These waivers may protect you from legal liability, but if you go forward with an in-person bar exam, you will still be responsible for spreading COVID-19 throughout the population of new law graduates, their friends, families, and communities. How can this possibly be the right decision?”

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“At this painful time, I see law students leading in the intersectional manner that will move us forward. I have attached Albany Law Affinity Groups student statement here. Please feel free to post and comment what your students are doing!”  ML

——–

Hello everyone,

I hope you are safe and well. Some of Albany Law’s student groups wanted to take a moment to address current events.

Our fellow students are suffering in ways we cannot imagine. The deaths of George Floyd, Tony McDade, Breonna Taylor, Ahmaud Arbery, and countless other members of the black community are a tragedy and a disgrace. OUTLaw, Latin American Law Student Association, Women’s Law Caucus, Muslim Law Students Association, and Asian Pacific American Law Students Association denounce racist actions against the black community. We promise solidarity with black students and the Black Law Students Association. And as student leaders entering the legal profession, we will take active steps to fight systemic racism and provide support in our fields.

On behalf of all of us: We love you. We are here for you. We see your pain and grief. We will make space for you. We will listen to you. We will share your stories. We will follow your lead. We will fight for you. We encourage other clubs and groups to make similar commitments. Active support means everything.

If you have the resources, please donate to any of the organizations listed below:
Citizen Action of New York
New York State NAACP
National Bail Fund Network
American Civil Liberties Union
Minnesota Freedom Fund
Black Visions Minnesota
Campaign Zero
Reclaim the Block

And/or give your time and support by signing petitions and reaching out to public officials. A master list of petitions and numbers is available at blacklivesmatters.carrd.co

We are stronger together,

OUTLaw, LALSA, WLC, MLSA, and APALSA

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The Center for the Study of Applied Legal Education (CSALE) is in the final weeks of collecting data for its 2019-20 tri-annual survey of clinical legal education.

The CSALE Master Survey was completed in the fall by over 94% of law schools; the follow up CSALE Sub-Survey was sent earlier this year to almost 2,000 law clinic and externship instructors. The ongoing Sub-Survey collects information on each instructor’s position and courses and will remain open for additional respondents until the end of May. CSALE will publish a detailed report on the 2019-20 survey, its fifth, in late summer, available with prior reports on its website.

But there’s no need to wait. Some of the data in the CSALE Master Survey is available now, and it shows both stability and change in clinical legal education. Relatively unchanged was the number of law clinics, with schools reporting 1,521 clinics, a median of 7 per school, unchanged over the last three surveys. Six schools offer no law clinics and three offer just one, while seven schools reported more than 20. There are some significant changes in the substantive focus of clinics. The most common now is Immigration (displacing Criminal Defense), offered at 63% of schools, a 34% increase in just three years. Intellectual Property clinics also greatly increased in number (at 35% of schools, up 50% from the last survey), as did Entrepreneur/Small Business (now at 36% of schools).

Student demand for law clinics is up slightly from CSALE’s 2016-17 survey, perhaps reflecting the new ABA six-credit experiential coursework graduation requirement. At 46% of schools, student demand for clinics increased over the past three years (compared to 38% in the last survey), while at only 10% did demand decrease (19% in last survey). In contrast, in the 2010-11 CSALE survey, 80% of schools experienced increased law clinic demand, while only 1% reported a decrease. The most common reasons given for decreased demand in the current survey were the school’s smaller student body and the students’ belief they should spent their time on bar subject courses.

With externships, criminal (prosecution and/or defense), government, judicial, and public interest law offices continue to be the most common types of field placement practice areas offered to students. A majority of placements continue to be in litigation or dispute resolution practice. At nine schools, 90% or more of placements are litigation/dispute resolution focused, while over 80 schools place less than 10% of their students in transaction-focused offices.

Similar to the last CSALE survey, over half of schools now allow students to receive more than 10 credits in a field placement course, with almost all of those schools (98%) permitting “full-time placements” outside the vicinity of the law school. Fewer than one quarter of schools permit students to extern with a law firm. And while 45% of schools prohibit placements at in-house counsel offices of for-profit entities, only four schools prohibit placements at not-for-profit entities. Compensation (paid externships) without conditions or limits, such as from law firms or for-profit corporations, is only offered at 17% of schools:

Demand for field placement courses is up slightly – 47% of schools report increased demand over the past three years (compared to 42% in the prior survey) – with decreased demand down from 15% of schools three years ago to just 7% in the current survey. Like law clinics, demand for field placement courses peaked in the 2010-11 survey when 76% of school reported increased demand and only 1% reported a decrease.

Looking at faculty changes, schools reported a median of 12 persons teaching in a law clinic or field placement course, full- or part-time, including adjuncts, staff attorneys, fellows, etc. This is up slightly from 11 per school in the last two CSALE surveys. The percentage of clinic and externship courses taught by full-time clinical faculty, however, continues to decrease. During this academic year, 65% of clinical teachers were full time, down from 72% full time in 2016-17, 78% in 2013-14, and 82% in 2010-11.

The status of those teaching full-time shows slightly more clinical teachers (law clinic and externship) on contract and somewhat fewer on some form of tenure (combining traditional and clinical tenure) – dropping to 29% after 35% in the three prior surveys:

One third of all clinical faculty are on long-term, presumptively renewable contracts (or on short-term contracts leading to long-term renewable contracts), down slightly from the last two surveys, while 37% are in shorter term, less secure positions as staff attorneys, fellows, or at will administrative positions.

Contrary to worries about contraction of clinical faculty, at half the schools the number of total full-time clinical instructors has remained constant, while at 38% it has increased, and at 12% decreased. The main factors contributing to an increase were the addition of new law clinic or externship courses, while the main factors contributing to the decrease were the retirement/death or voluntary departure of a clinical faculty member without a replacement. Only 5% of schools attributed the decrease to layoffs, and only 5% attributed it to decreased student interest in law clinic or field placement courses.

Finally, this was the first CSALE survey after the implementation of the new six-credit experiential coursework requirement. In response to that new standard, approximately one third of schools made no changes to its courses. However, 43% of schools added new law clinic, field placement, or simulations courses, 30% restructured some previously non-experiential courses to become experiential, and 23% increased the number of slots available to students in existing clinic, field placement, or simulations courses. Ten percent of schools simply restructured an existing legal research and writing course to now be considered experiential. The new standard has had some impact on the first-year curriculum — one-fourth of schools now offer or require an experiential course. Yet, only seven schools offer or require a law clinic or field placement course as part of the first-year curriculum as 95% of first year experiential courses are simulations.

CSALE’s report on the 2019-20 survey will provide much more detail from the Master Survey on school-wide programs and policies and, from the Sub-Survey, data on specific types of courses and teacher status and demographics. If information is power, there is great power in CSALE data to guide decisions on clinical programs, courses, and faculty. But, that information is only as good as what CSALE can collect. If you received an invitation to the survey and have not yet filled it out, please add your answers to CSALE’s nationwide database.

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Previously, we posted the Society of American Law Teacher’s statement calling for the Council on Legal Education to suspend law school Accreditation Standard 316 “in light of the COVID-19 disruptions to the 2020 bar exam nationwide. ”  (You may remember that ABA Standard 316 requires that “at least 75 percent of a law school’s graduates in a calendar year must have passed the bar exam within two years of their date of graduation.”)

Today, the Clinical Legal Education Association (CLEA)  joined SALT in urging the ABA Council on Legal Education to suspend 316 as the

only remedy that makes sense given that we cannot predict the ultimate impact of COVID-19.

CLEA’s letter submitted by Kendall L. Kerew, CLEA President, on behalf of the Board of Directors, and found here, notes how consistent this submission is with past submissions to the Council and with their Board of Directors April 21, 2020 statement on licensing for 2020 law graduates:

CLEA has long expressed concerns about Standard 316’s over-reliance on the high-stakes, timed bar examination and its negative impact on diversity in the legal profession. CLEA also has criticized the exam’s emphasis on test-taking skills and memorization of substantive knowledge over legal analysis, problem-solving, and lawyering skills, which are all essential to legal practice. 

Finally, CLEA, whose mission includes a commitment to “pursue and promote justice and diversity as core values of the legal profession,” writes that 

The ability of law students to prepare for and take the
bar exam, given serious virus-related disruptions, is greatly hindered and varies significantly, depending on location. In fact, growing data underscores that people of color face disproportionate illness and death from COVID-19.

The Council meets tomorrow May 15th to “conduct its accreditation business by video conference and will have a brief open session conference call on Friday, May 15, beginning at 3:30 p.m. CDT, to review and take action on the ABA Standards and Rules of Procedure previously circulated for Notice and Comment.” 

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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 Coronavirus.  The 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 26^th 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. “

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“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?

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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.

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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 (5^th, 12^th, 19^th) 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

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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.

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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.

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