MORE NEWS ON STATES, BAR EXAM, AND DIPLOMA PRIVILEGES

For several months now, this blog has commented on Courts and States continuing to require a traditional bar exam for admission to practice.  It has also covered the call by law deans and law students to enact Diploma Privileges.

Since our last post on this subject Oregon has adopted a Diploma Privilege and now a New York State Senator has proposed a bill which according to its “justification” allows for “a modified form of diploma privilege. “  The bill is found here.

Senator Brad Hoylman’s Sponsor Memo reads as follows:

At this point in time, it is too early to tell with certainty whether it will be safe and feasible to hold an in-person bar exam in early September. State and local restrictions on venues being open and limiting the size of in-person gatherings may preclude the administration of an in-person test. Amid the uncertainty over the test’s administration, law graduates are reporting that the already stressful bar exam preparation has been compounded by personal challenges ranging from their own health and wellbeing to financial hardship to increased caregiving responsibilities. Allowing a modified form of diploma privilege, as proposed in this bill, would give law graduates a reprieve from further delays in admittance, while retaining the Court of Appeals’ prerogative to set standards for the profession. Under this bill, as long as there is an extent state of Emergency related to COVID-19, the uniform system of examination for admission to practice law in New York will consist of the New York Law Course, the New York Law Examination, and the Multi- state Professional Responsibility Examination, all of which can be taken online.

Nothing in the bill precludes the State from moving forward with admin- istering the Multistate Bar Examination, meaning it can remain an option for New York-based law graduates who wish to practice law in a state other than New York. Passing the MBE, however, would not be a required prerequisite to admission to practice in New York for the duration of the COVID-19 State of Emergency.

According to Karen Sloan’s article on Law.com, 2020 Brooklyn Law School graduate Claire Schapira, who is involved with an advocacy group called NY 4 Diploma Privilege hopes

that the Board of Law Examiners and Court of Appeals will act on their own, because they have the power to do that,” Schapira said. “But I think that this helps push the momentum. This is not something that graduates want because we don’t want to take the bar exam. This is an issue that has a real impact across the legal community and the community more generally.”

I agree. I spent a portion of yesterday trying to problem solve with a brilliant, hardworking, ethical and professional law graduate and accepted bar examinee.  This student also excelled in clinical practice.  Like other examinees, this immune compromised student, who is normally efficient, excellent at focus and time management, and extremely organized is being distracted from bar study by 

  • trying to keep up on what is safe to do as the virus surges again
  • changing bar expectations and information across the country
  • concern about friends and family who live in other states
  • Rent issues while studying for the bar in a safe appropriate place in the Capital NY Region 
  • Figuring out when to move to a more expensive city where a more challenging living situation but good job is waiting
  • Fear that NYS will once again punt making a hard decision by delaying exam dates until October which continues unemployment for this graduate and many others.     

It is time to provide certainty and provide New York law graduates with a diploma privilege tied to other indicators of professional promise as outlined previously on this blog here and here.

 

UPDATE: 7/8/20 See also https://news.bloomberglaw.com/us-law-week/insight-clinical-education-a-safe-and-sure-pathway-to-law-licensure

 

Let’s Take This Period of Unprecedented Change to Consider How Grading Practices Can Affect Issues of Diversity and Inclusion in Our Law Schools

Jennifer S. Bard, Visiting Professor, University of Florida, Levin College of Law

For the last half of spring semester 2020, law schools all over the country were forced to change their method of instruction, delivery of final exams, and (in many cases) grading practices because of the demands for physical isolation following the outbreak of Covid-19.  Now that the semester is over, there is a further round of disruption as many states have delayed or even cancelled their bar exams, some have granted graduates diploma privileges, while others bravely go ahead in the face of a possibility that they will have to cancel at the last minute because of ever-rising rates of infection. 

Like the opportunities that may arise when a river is drained and a ship revealed, there may never again be such an opportunity for us to consider what role we play in the glacially slow diversification of the legal profession and how we can make our law schools more equitable, inclusive, challenging, and effective for all of our students—not just those for whom it has been particularly well suited.

With many things to choose from, my starting point for looking at things we rarely question is the marrow deep belief that we owe it to our students to sort them for the benefit of large law firms—even when our employment profile shows that very few of our students will ever work at such a place.  Since the threshold for this opportunity is a top 5 or perhaps 10 percent class rank, it may seem odd, on reflection, that we have designed a curriculum designed to compare students that may have many undesirable consequences including undermining self-esteem, discouraging learning for learning’s sake, and contributing to the lack of diversity in the legal profession.  

Over the years, other justifications have been added such as the need to motivate students or assess their progress but never have we had such a good opportunity to see what law school is like without grades or, more to the point, comparative curves.

Here are some Practices We Might Question

The Primacy of First Semester Grades

One result of the decision to go pass/fail (or some variation of the words) was to “freeze” first year first semester class ranks because it was impossible to produce comparative curves

The resulting phenomena gives us a chance to ask ourselves  some tough questions:

  1. Do First Semester Grades Reflect What Students Bring to Law School Rather Than What We Bring to Them? OR Do Students Who Come in Knowing the Rules Get Better First Semester Grades?

Many students, very often First Generation Students, but also some facing racial or gender identity or expression based discrimination, frequently tell us (and the many researchers who study first generation college students) some version of “everyone knew the game but me and by the time I figured it out, it was too late.” And while students living with disabilities might intersect with any of these groups, they also are often using new adaptive equipment and certainly facing new challenges that they may have been able to mitigate in college.

Certainly many of our students do know the game from the start.  The recent AALS survey “Before the JD” found a disproportionate number of students who ended up going to law school had parents who were either lawyers or professionals. While students have, themselves, created organizations to support each-other usually with the enthusiastic support of the law school it may not be enough.

Our challenge going forward is that history is told by the victors.  We can see the students who were not comfortable the first semester but then continued to graduate “at the top of their class” (a vague term that usually means somewhere in the top 20%), but we don’t hear from the ones who didn’t draw attention through academic distress, but also didn’t thrive.

It would be helpful to know more–and many schools do know more about their own students.  But so little of this information is published.

Much is being done in supplemental programs- to name them is to leave many out- such as pre-first semester programs, orientation programs  and excellent pre-law institutes like the Tennessee Institute for Pre-Law , and in wonderful conferences organized by the National Black Law Students AssociationLavender Law, the National Association of Law Students with Disabilities,  and so many others.  

But how much more effective would it be to have a curriculum that was truly equitable and inclusive – all the way through?

2. Did Pass/Fail Grading Help Learning, Hinder Learning, or None of the Above?

Across the board pass/fail grading that makes no effort to compare students to each other is so unusual as to make any observations worth considering. The expectation was a distressing list of bad results-students putting in less effort during class, performing worse on exams — but did that really happen?

3. Ditto Open Book Exams

As above, it would be interesting to test, in the fall, the content knowledge of students who took open exams.  Not so much as to compare them with past classes, but to see what how much they learned.

4. What Will Be the Long Term Effect of the Delayed or Cancelled Bar Exams–and How Might that Change Our Curriculums?

The opportunity presented by the necessary changes to the bar exam is already in very good hands, (thank you AccesLex) but it’s still worth considering what the future will look like in states which choose provisional or full licensure.  Even decisions to delay the bar exam could raise issues of an on-going, career long licensing process, much as many doctors (but not all) must take requalifying exams every ten years to retain their “Board Certificate.” What would that mean for law schools?

To Be Continued: Part II: What Can We Learn from the Delay of Fall On-Campus Interviewing?   

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.     

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.

Best Practice Contributors Highlighted in Best Articles of 2019

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

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

Refuting the False Trope on Clinical Courses and Bar Passage

Robert Kuehn, Washington University School of Law

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

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

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

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

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

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

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

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

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

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

Active Retrieval Practice: Known to Improve Learning but Underappreciated?

Exam time has arrived in law schools.  Students who want to excel on exams (and later, as attorneys) would do well to try out active retrieval practice.  To understand the value of retrieval practice, some brief discussion of well-established cognitive science is necessary.  Learning involves (1) taking knowledge into short-term working memory, and then (2) moving it from working memory to long-term memory by actively using the knowledge.[1]  In their excellent book, Teaching Law by Design, Dean Michael Hunter Schwartz, Professor Sophie Sparrow, and Professor Gerald Hess explain this process of storing learning in cognitive schema.[2]  They liken schemata to a “folder system[] provided for users of computer operating systems.”[3]  As they observe, however, storing knowledge “isn’t enough.  To analyze a problem, students must recall (“retrieve”) what they have learned and use that learning . . . .”[4] 

Research on cognition demonstrates that meaningful learning in any discipline requires the learner to perform some form of active retrieval exercises to be able to use the knowledge in analyzing and solving problems.   Active retrieval methods are ways in which the learner recalls knowledge and uses the recalled knowledge to solve problems or answer questions.[5]  Recalling for mere “knowledge checks,” sometimes called rote learning, is not effective.[6]   In the law school arena, a student can recite a memorized rule but not be able to apply it to fact patterns in a way that shows understanding.   Effective retrieval-based learning activities require the student to solve problems or to answer questions.  By doing so, the learner strengthens her understanding  of, and ability to recall, the knowledge.[7]  In law school, mid-term exams require students to recall information at least in mid-semester.  The problem there is that neuroscience shows a marked forgetting curve: if learning is not retrieved within a few days of its being stored, the knowledge is lost and must be relearned.[8]  Indeed, retrieving and using the knowledge are the critical parts of developing meaningful learning. 

               Spurred by the adoption of ABA Standard 314, my colleagues and I have been giving mid-term exams and using a variety of interim assessments designed to have students to recall information from previous classes. I regularly have a mid-term that includes multiple-choice, essays, or both.  The exams are graded and students receive a model answer. I discuss with students the answers to the assessments and common mistakes (e.g., failing to state rules accurately, insufficient application of facts in supporting one’s analysis).   The exam and follow-up discussions achieve the goal of providing the “meaningful feedback” that ABA Standard 314 seeks.   The mid-term is also summative. My experience is that many students do not take a practice, ungraded mid-term seriously. Having the exam count, but not so much as to prevent a student from recovering from a poor exam, helps to ensure that students prepare for and spend time on the mid-term.

               Another way that I have incorporated active recall practice is by using multiple-choice polling questions.  In the first class after we finish a course segment, we begin the class with multiple-choice questions that students answer by polling.    I ensure participation by recording the polling, by student, and including their responses (or lack thereof) as a class-participation part of the grade.  In answering the questions through polling, students must recall knowledge to analyze the question and reach a conclusion.   For example, after completing the study of removal jurisdiction and procedures, I use a series of multiple-choice polling questions that explore the many nuances of removal.   These sessions provide “meaningful feedback” to both students and to me.   If everyone misses a question, you can be sure I go back to discuss the area.  I also encourage anyone who missed a question in these polling sessions to meet with me after reviewing the topic addressed by the question.

               I urge students not to rely solely on the mid-term and the polling sessions as a means of ensuring they have learned material well.  Instead, I highly recommend preparing answers to essays under timed conditions.  At times I provide a model answer after they practice an essay. I also invite students to meet with me to go over their answers.   In these discussions, I almost always find some area in which a student has a mistaken understanding of a rule or concept.  If we did not uncover that misunderstanding, a student could repeatedly recall a flawed rule or approach.  Hence, I appreciate more than ever the wisdom of Standard 314’s emphasis on formative assessment.   After resolving any misunderstandings, I encourage a student to rewrite an answer.  That allows the student to revisit the topic and solidify her understanding.  Indeed, the act of writing itself helps students to embed the rules and concepts more firmly in their memory.[9] 

               What is true for law school is also true for the Bar Exam.   Last summer Sara Berman and I created a podcast for the ABA on practicing tests (essays, Multistate Performance Tests [MPTs], etc.) as some of the most effective ways to prepare for a state’s Bar Exam.[10]  Ideally, a student learns everything she needs to know in law school Bar review is just that–review.  More often, Bar applicants have a vague recollection of rules and concepts from their time in law school.  In other words, Bar applicants often find themselves relearning rules and concepts.  In so doing, they will learn more effectively by practicing an essay or MPT answer and by submitting these answers for grading to their Bar Preparation company and the faculty at their law school who help Bar applicants.  In doing these exercises, they benefit for at least two reasons.  First, it will identify areas in which the applicant’s knowledge of rules and concepts is so weak that she cannot answer a question.   Knowing that, the applicant can review that area and know that she needs to do so.  Second, exercises such as practice essay answers will require applicants to recall the rules they do know and apply them.  The more they do so, the more likely they are to remember them on the Bar. 

               Repeated, active retrieval practice is one of the best ways to learn to perform on exams or in law practice.  Yet, despite the data showing its effectiveness, such practices are not the norm in higher education.[11]  The practice is likely not the norm in law schools.   Standard 314 ought to help to some extent increase active retrieval before the end of the law school semester.  Yet, at present students are not spending their time as wisely as they could. Instead of preparing detailed outlines, and memorizing rules or flash cards, they would learn more from methods that require them to recall and apply legal rules and analysis.   Indeed, one might say this fact is one of the best kept secrets in law school. Perhaps it is time to let this secret out.


[1] Michael Hunter Schwartz, Sophie Sparrow & Gerald Hess, Teaching Law by Design 4­–7 (Carolina Academic Press 2009).

[2] Id.

[3] Id. at 5–6.

[4] Id. at 6.

[5] Jeffrey D. Karpicke, A Powerful Way to Improve Learning and Memory: Practicing Retrieval Enhances Long-Term, Meaningful Learning, American Psychological Association (2016), available at https://www.apa.org/science/about/psa/2016/06/learning-memory (last checked Dec. 6, 2019).

[6] Id.

[7] Id.

[8] Louis N. Schulze, Jr., Using Science to Build Better Learners: One School’s Successful Efforts to Raise its Bar Passage Rates in an Era of Decline, 68 J. Legal Educ. 230, 245 (Winter 2019).

[9] Bryan Goodwyn, The Magic of Writing Stuff Down, 75 Educational Leadership 78–79 (April 2019).

[10] Sara Berman and Ben Madison, Practice Makes Passing, Episode 6 of American Bar Associations Path to Law Student Well-Being Podcast series, available at  https://www.spreaker.com/show/path-to-law-student-well-being  (June 22, 2019).

[11] According to Dr. Karpicke, college students likewise use rote learning methods more than they use active retrieval exercises.  See Karpicke, supra note 5.

An Overview of “A Study of the Relationship Between Law School Coursework and Bar Exam Outcomes”

Robert Kuehn, Professor of Law at Washington University School of Law in St. Louis, and David Moss, Associate Clinical Professor at Wayne State University Law School, recently conducted a large-scale study looking at the relationship between clinical/experiential or bar subject-matter courses and bar passage success in a paper entitled, “A Study of the Relationship Between Law School Coursework and Bar Exam Outcomes.” As a law student currently enrolled in a clinic, this study immediately piqued my interest.

This study was in response to fear that bar passage rates were down because of rising enrollment in “experiential courses” as opposed to “bar-subject courses.” Law schools began pushing students to enroll in more of these bar-subject courses to correct this so-called issue. However, Professor Kuehn and Professor Moss observed that there was no evidence to suggest that taking more bar-subject courses was appropriate advice for all students. Their study looked at this missing evidence between bar-subject courses and experiential learning and bar exam outcomes for ten years between two law schools: Washington University School of Law (WashU) and Wayne State University Law School (Wayne State). Both schools only require the designed first year courses and the upper-level writing courses mandated by ABA accreditation standards.

Previous studies performed in states like Texas, Colorado, and California looked at the effects of coursework and bar passage rates. These studies did not support the claim that taking more bar-tested law school course improve chances of passing on the first attempt. Notably, a study done in Indiana concluded, “simply forcing lower-performing students to take more upper division bar-subject courses will not solve the bar examination failure problem.”

The first goal of the present study was to determine whether a graduate’s enrollment in elective experiential courses was related to first-time bar passage success. Next, it was to assess whether enrollment in elective courses that cover bar subjects was related to bar success.

Data was collected from law school graduates from 2006-2015. The following table outlines the number of graduates with LSAT scores and bar passage rates between the two schools:

The next table looked at graduate characteristics such as undergraduate GPA, LSAT score, 1L GPA, and law GPA and their correlation with bar passage:

It wasn’t until 2005 that the ABA began requiring graduates to receive professional skills instruction with as little as one credit satisfying the requirement. In 2014, the ABA changed this to require six credits beginning with 2019 graduates. The study authors decided to track enrollment in skills courses versus bar passage over this time period.

The table above reveals a solid line depicting that average bar passage percentages were steady from 2006-2013 (this is when experiential course enrollment increased by over 50%). During the significant rise in experiential enrollment, bar passage percentages were largely steady. “Therefore, efforts to link declining nationwide bar passage rates to the rise in experiential course enrollment are not supported by national statistics.” A more likely contributing cause for bar passage declines since 2014 is weaker credentials of incoming 1Ls.

At WashU, it was found that while taking at least the average number of bar courses is associated with increased likelihood of passing the bar, there was no statistically significant increase in bar passage associated with bottom-quartile LGPA graduates who took more than the school’s average. This was similar with graduates in the bottom half of their class at Wayne State. Results for both schools indicate that graduates in bottom quartile who take fewer than the average number of bar courses at their school were associated with a significant increase in bar failure. Further, at both schools, students entering with scores lower than 150 were associated with pass rates significantly below the school’s average.

This study concluded that the claim that the dramatic decline in bar passage rates is due to law students taking more experiential courses or fewer bar-related courses is not supported. It characterized efforts to cap experiential credits in order to improve bar passages rates are “misguided,” warning that schools should not expect that “mere exposure” to more bar courses will significantly improve bar passage rates.

Also see “Legal Skills Prof Blog” and “TaxProf Blog” for more posts on this study

After All These Years: Another Bar Exam Over, Another Entering Class, but Still a Disconnect between the Licensing Exam and What We Need Lawyers to Be and Do

I was never a Journey fan but I truly am astonished that after all these years of preparing lawyers for practice, and after two years of an unprecedented undermining of  the rule of law in our nation, law schools still live with a disconnect between the profession’s  licensing exam and what business, government and society needs lawyers to be and do, which includes protecting  the rule of law. 

The National Law Journal recently discussed two new major studies which will analyze whether the current exam is the best measure of new lawyer competence.  The National Conference of Bar Examiners (NCBE) is in the midst of a three year study  to “ensure that the bar examination continues to test the knowledge, skills, and abilities required for competent entry-level legal practice in the 21st century.”  (Hmm, continues? that’s a bit biased) and has already held 30 listening sessions.  

The second study, “Building a Better Bar: Capturing Minimum Competence” is an initiative of  the Institute for the Advancement of the American Legal System in partnership with Ohio State Law Professor Deborah Merritt, and aspires to develop a “fair, evidence-based definition of minimum competence” to improve the current licensing process.  Funded by Access-Lex, the researchers:

will be holding 60 focus groups in 12 locations around the country. While these focus group participants will primarily be new lawyers, we will also hold a number of specialized groups with supervisors. Additional specialized groups will include only women and only people of color, as well as groups in rural areas; traditional job analyses can mask the views of these lawyers, yet their perspectives are essential to create a more fully representative view of minimum competence and how to test for it effectively. Through these focus groups, we will be able to capture key information from a diversity of perspectives and provide concrete data on the definition of minimum competence that the profession can use to improve the bar exam and how lawyers are licensed.

 

Readers may remember that IAALS has provided helpful research in the past through its Foundations for Practice  research, which identified the  competencies over 24,000 legal employers value in new hires (most of which go untested by the current licensing process) as well as the evaluation of the graduates of the Daniel Websters Honors alternative to the bar exam in “Ahead of the Curve:  turning Law Students into Lawyers

I suppose I should be delighted that more studies are being launched. They are addressing the exact issues so many of us have raised for decades. However, my reaction is uncharacteristically pessimistic.  (Readers here who have tolerated my enthusiastic use of exclamation points and emphasis will agree it is uncharacteristic).  Perhaps it is the August humidity. Perhaps, it is the sorrow surrounding our nation after a week of grief from senseless gun violence But more likely, it is the fact that I am feeling frustrated that we have already studied this to death! For example, working with state bar associations The Foundations for Practice Project already studied new lawyer competencies with 24,000 lawyers from all 50 states participating and found

… the foundations that entry-level lawyers need to launch successful careers in the legal profession.

In a first-of-its-kind survey, we asked, “What makes a new lawyer successful?” More than 24,000 lawyers from all 50 states answered.

What we learned is that new lawyers need more than IQ and EQ to be successful. They also need CQ: Character Quotient. In fact, 76% of characteristics (thinks like integrity, work ethic, common sense, and resilience) were identified by a majority of respondents as necessary right out of law school.

Beyond character, new lawyers are successful when they come to the job with a broad blend of legal skills, professional competencies, and characteristics that comprise what we call the “whole lawyer.”

So why is the NCBE, who clearly has a stake in the outcome, refusing to respond to the outcome of that 3 year old study but instead promising only to do its own study. JEESH! We tweak here and there, we add more pro bono or experiential requirements, but no one truly influential will admit that our insistence on anchoring the gateway to the profession to a timed, written exam instead of clinical excellence is the problem.

Starting as early as 2008, this blog has discussed the problems with the bar exam and its role as an unhelpful, anxiety producing, discriminatory, skewed, and unnecessarily speeded, gate-keeping device.  For a sporadic history of posts between then and now, in fairly chronological order, click on the links below.

Did You Know That “Bar Courses” Don’t Matter? 

New Article: No Excuses Left for Failing to Reform Legal Education

Working with State Bar Associations on Best Practices

Bar Passage and Best Practices for Legal Education

One BAR to rule them all?

The Daniel Webster Scholar Honors Program

NYSBA Task Force on the Future of the Legal Profession Report

New Requirements for Bar Exam Stress Clinical Education

Existential Crisis and Bar Exams: what is really cruelest?

The Bar Exam Inhibits Curricular Reform

NEW YORK STATE BAR ASSOCIATION VIGOROUSLY OPPOSES PROPOSAL TO BRING UBE TO NY THIS JULY

Preparing Students for the Multistate Bar Exam

Musings on the Bar Exam and Legal Education’s Attitude toward it

Bar Exam Musings, Part II: Skillfully Changing the Bar Exam Narrative

Experts in the Legal Field Question the Bar Exam…

What’s going on in California? “TFARR- recommended” 15 credits of competency training

New York Proposes “Experiential Learning Requirements” as Condition of Licensure: CLEA and NYS Bar Committee Respond

Examining the Bar

Keeping an experiential identity in bar passage reform

Whither Clinical Courses and Bar Passage – by Prof. Robert Kuehn

DO LAW SCHOOLS ADEQUATELY PREPARE STUDENTS FOR PRACTICE? SURVEYS SAY . . . NO! – Robert Kuehn, Washington University School of Law

Professor Merritt’s Blog post on attorney discipline and bar exam WORTH A READ!

Studying Better Ways to Test Bar Applicants for Minimum Competence: Another Reason to Care about the California Bar Exam (Besides the Cut Score Debate)

Scholarship on Bar Exam Alternatives Needed

ABA Commission on Future of the Profession & ABA Vote on Bar Passage Proposal

Drafting Exams With Test-Taking Speed in MindConcrete Suggestions for Bar Exam Reform

We have to talk about the bar exam

What can Law Schools Learn about Bar Passage from Medical Schools’ Approach to Studying Students Who Struggle with Licensing Exams?

More Resources Re Teaching, Learning, and Bar Passage

A Fresh Look at the Uniform Bar Examination

Letters raise concerns about changes to the bar pass accreditation standard

Time to Remedy the Ills Afflicting ABA Council’s Standard 316 Proposal

Are the Students Failing the Bar Exam Today Canaries in the Coal Mine warning us of a More General Need to Change Legal Education?

Shifting the Focus of Legal Education Back to Just That: Education

How Practice Tests Reduce Anxiety in Bar Preparation and the Exam

Quite a listing, huh? I suspect that the IAALS and Merritt project will provide us with extraordinarily helpful insights into measuring minimum competence. But political clout is also needed. Will this BLOG simply be adding more posts for years to come on the unfairness and inappropriateness of a slightly modified, unnecessarily stressful, timed, bar exam — a continued hazing tradition?  I hope the NCBE and other institutional influencers proves me wrong.

Leading Edge Conference: Facing and Forming Legal Education’s Future with Insights, Data and Inclusive Thinking

Last week, I was fortunate to attend the 6th annual Leading Edge Conference hosted by Wolters Kluwer (WK) in Riverwoods, Illinois. It was my first experience with this particular conference. Using an unconference format and with a balance of old-timers and new attendees, WK brought together approximately 30 “thought leaders” for two+ days of intense discussion. Participants included professors and deans from a wide variety of law schools, representatives from law related entities such as LSAC, NITA and IAALS, education or pro-bono related entrepreneurs, and digitalization pioneers.

In addition to the conference, WK hosts the Leading Edge Webinar Series and just announced its 2nd annual Leading Edge prize. Ten Thousand Dollars ($10,000) will be awarded to two winning teams “to help implement their visions of improving student outcomes or expanding educational opportunities for law students.” Proposals are due August 15th.

I left the conferences with many “take-aways,” that I am only beginning to fully digest, and with a better sense of the continuing challenges facing legal education and our profession. Bernard A. Burk, Jerome M. Organ and Emma B. Rasiel recently published in the Nevada Law Review “Competitive Coping Strategies in the American Legal Academy: An Empirical Study”. Their research examined the response of law schools “to the substantial fall off in both the number and the conventional qualifications of applicants to law school that began after 2010.”

The “Competitive Coping Strategies” research also explains why more law schools have not closed and emphasizes the “widened distance” between current students’ needs and current school resources. The study found that in the face of plunging applications to law school, “Reputationally stronger schools” generally chose to preserve their entering Class Profile. This meant “thousands of viable candidates remained available to other law schools, effectively preventing the closing of as many as twenty Reputationally Weaker schools.”

Second, the study points out the implications of shrinking Class Size and discounting Tuition to preserve entering class profile. “As a practical matter, then, law schools ‘invested’ in Profile rather than in expanding their faculties, facilities or their access to clinical and experiential education. We encourage discussion of the implications of this investment choice.”

Third, the study noted that “some Reputationally Weaker law schools perversely were able to maintain or raise their average Net Tuition” and “the students with the least promising prospects for obtaining or making any economically sustainable use of their law degrees are paying the highest prices to obtain them. These inequalities expanded significantly after 2010.”

Fourth, the study highlights the millions of dollars in forgone Tuition Revenue “unavailable to meet the needs of students who at many law schools are significantly less prepared” than their predecessors and suggests this widening gap underlies the declining Bar Exam pass rate.

We seem to have reached a plateau in declining admissions to law school. But that plateau is not a place for us to settle in and rest. There are too many hard questions about where we are now.

How do we address the inequalities which have expanded since 2010 in law schools? What is the value we provide to those with the “least promising prospects?” Is it immoral that those least likely to make “any economically sustainable use of their law degrees are paying the highest prices to obtain them?” or that they may be undertaking crippling debt to obtain a law degree?

On the other hand, if we narrow the pathway into law schools even further, rejecting any who come to law school less credentialed or less prepared, will we be rejecting the dreams and hopes of those who desire a professional pathway? Will we be rejecting many who will find an economically sustainable and good life for themselves? Will we be playing God with students from less advantaged backgrounds just because we don’t know who will make it and who won’t? Will we be eliminating first generation students in larger numbers? Will we be amplifying the lack of diversity in our profession?

And what about the role of law schools in the community at large at this moment in our nation’s fledgling history? Shouldn’t we continue to exist as community laboratories which encourage civil discussion, uphold the rule of law, critique unjust legal systems and decisions, work to sustain democratic institutions and constitutional checks and balances, and produce new ideas about the role of law and legal systems in society?

Finally, if we espouse the “public good” values of my last two paragraphs as arguments for the continued existence of the legal academy and law schools, then do we prioritize these values in our faculty hiring, our strategic plans, and our prioritization of resources?
So, I leave you as I left the conference, with more questions than answers, but with a firm sense that we must continue to ask these important questions.

(Note: the author had her lodging, food and flights paid. She was not paid to write or post anything about the conference. Besides, she is pretty opinionated and not easily swayed.)

More Resources Re Teaching, Learning, and Bar Passage

Thank you to Best Practices for Legal Education Blog for having me as a blogger this week.  I hope the examples I’ve provided about methods medical schools use to evaluate their curriculum, test the effect of new programs, and look for factors that affect success on licensing exams.  As I mentioned at the end of my last post, the most comprehensive source for research based information about bar passage programs as well as a source of funding for sources is AccessLex.  There is a growing literature of articles from schools which have implemented successful bar passage programs.  Here’s an article by Louis Schulze about his work at FIU.

You might also be interested in a series of articles from back in 2009-2010 when those at the front lines of legal education, first year faculty and legal writing and research faculty, began to see significant differences in performance between the students they were teaching and those in the past.  These articles provide information about how substantial changes to the k-college education system in the U.S.A. impacts law students’ transition to law school. This article by Rebecca Flanagan is a good overview.  Prof. Patricia Grande here.  A literature review of law learning strategies by Profs Jennifer M. Cooper and Regan A.R. Gurung.   One more by Profs Susan Stuart and Ruth Vance

Here are the proceedings of a 2014 Symposium entitled “Teaching the Academically Underprepared Law Student” and I invited readers to take advantage of the comments section of this blog to share other publications—including the many more recent ones.  My point here is historical, not bibliographical.  And here, as a quick reminder of one of the crucial skills the bar doesn’t test– research.  Caroline L. Osborne

Finally, something I’ve mentioned elsewhere, the new collaboration between LSAC and Khan Academy providing free, on-line, very high quality LSAT preparation may have something to offer law students.  The skills underlying LSAT performance, close reading and legal reasoning, are not immutable—students can get better at them after enrolling in law school and may find some time with these materials a helpful and interesting way to brush up on these skills.

 

 

What can Law Schools Learn about Bar Passage from Medical Schools’ Approach to Studying Students Who Struggle with Licensing Exams?

It’s not unusual for a provost or a colleague or a relative at Thanksgiving to ask a legal academic why law students have so much trouble passing the bar exam when the pass rates for medical students are usually in the high 90th percent.  The short answer to that question is that the two processes are completely different—and there’s no obvious trick, technique, or intervention that could convert our bar passage rates into their licensure passage rates.   For one thing, it’s the wrong question.  “Passing” the medical licensing exams is certainly important, but unlike the “all or nothing” process of passing the bar exam, the score achieved on Step 1 affects medical students’ entire career path.  But there is a lot to learn about the methods that medical schools use in studying the very few students who have trouble as well as how they evaluate the effect of changes to their curriculums on scores on the licensing exams.

Quick recap on professional licensing—future doctors take a series of three exams over the first six years of their undergraduate medical education and the start of their residency.  (more links in a post I wrote earlier this year here).  The exams are almost entirely national although the actual process of being licensed is conducted on a state by state basis.   Law students take a licensing exam in the state where they intend to practice upon graduation.  For purposes of this post, the closest analogy to the bar exam is the more academic Step One students take during their second year of medical school.  Like  our NCBE, the National Board of Medical Examiners which produces United States Medical Licensing Examination works with medical licensing boards and depends on their confidence.  It issues annual reports.

The focus of this post is on the methods that medical schools use to study the small number of their students who do have trouble passing the licensing the exams as well as the factors that can affect the scores students achieve.  I’ve tried to focus on articles outside of paywalls, and would certainly encourage you to conduct your own searches in the various data bases to which you have access.  There are several journals devoted directly to studying medical education—although these articles can pop up anywhere.

Medical educators use a wide range of research techniques to learn more about students who struggle with licensure exams.  Like us, medical schools would prefer students pass the first time and many articles like this one look for characteristics who fail the first time but eventually pass.  Others look for characteristics of students at risk for failure here and here  or even  what students think of the exam.    Another area for inquiry involves the role stress plays in the score students achieve.   In partnership with social scientists at our schools or in our communities, we too could be conducting studies to help us learn more about students who face difficulty passing the bar exam.  These studies can be part of graduate student work or may even be funded by groups like Access which is making money available to study bar passage.

 

The actual reason the medical school pass rates are so high, though, may not be all that helpful.

It’s not just because they are able to limit admission to students who have already demonstrated an ability to score very highly on the MCAT.  A test that is much more similar to step 1 than the bar exam is to the LSAT.  Indeed, medical schools have direct input in both the MCAT and the Licensing Exams—so when one changes, the other can too. And it’s not clear that anything in the curriculum makes a difference at all—the industry offering study aids and licensure prep courses dwarfs the bar prep and study aid market to a point where students often start studying for the licensing exams before the first day of medical school.

But if it is the curriculum, it’s important to remember the vast difference in time scale between medical and legal education.  We have students for three years post B.A. Medical schools in the U.S. plan their curriculum based on  8 plus years of increasingly specialized medical education.  They are therefore comfortable holding off on the direct teaching of practice skills for the first two years while they are aligning their curriculum with the content of the Step 1 exam.

Even Step 1, though, is far more focused on practice than on knowledge accumulation or deliberately confusing question formulations that characterize the bar exam. Step 2,  the second round of licensing exams prior to graduation medical school,  go past paper and pencil in that they actually test students’ ability to conduct exams and exercise medical judgement.  Another reason for the high pass rate is that most medical schools have stopped developing their own tests and instead use assessment instruments (shelf exams) provided by the same company that produces the exam.   Sure, there is grumbling and criticism about content & timing of the licensing exams, but medical schools work hard to make sure that their curriculums are aligned with the content of the exams.  Finally, medical education is extremely self-reflecting–they are constantly aware of the risks that come from confusing correlation and causation.  How do you know that a change in one part of the curriculum is the cause of a change in test scores?  You run Pearson correlations followed by stepwise linear regressions.  Seeing is not believing when comes to identifying factors that affect performance on licensure exams.   Look here, here, here, and here for studies evaluating curriculum changes.  They take nothing for granted—does attendance make a difference, does flipping classrooms really work? Does reducing the number of hours spend in the anatomy lab reduce USMLE scores?

Another standard practice in medical schools is curriculum mapping— an essential first step for any school that wants to understand what they are teaching—let alone make changes.   Like all maps, curriculum maps are DESCRIPTIVE, not PROSCRIPTIVE.  Here is   Harvard’s curriculum map, but you can find examples on the home page of just about every U.S. Medical School.This is a an article walking through how to map a curriculum.

So what’s helpful to us isn’t so much what medical schools are doing, but how they are evaluating themselves. 

In recap, neither I nor anyone else who has ever practiced law thinks it would be a good idea to emulate medical schools by fully aligning our curriculum with the bar exam so as to turn the three years of law school into one extended bar prep course.  Among other reasons, the material tested on the bar is quite static and doesn’t reflect the realities of today’s law practice.   It also wouldn’t make much sense for schools whose students take the bar exam in many different jurisdictions.   Also, the bar exam is just not equivalent to the three rounds of USMLE exams in actually testing both the knowledge and application of knowledge needed to be a successful lawyer.  If it was, we wouldn’t hear so many complaints about how students who have passed bar are never-the-less not “practice ready.”

Tomorrow—where can we get the help we need to find out this information, and who is going to pay for it?  Spoiler--Access Lex has a program.

We have to talk about the bar exam

Thank you very much to the team at Best Practices for Legal Education for inviting me to blog this week.  My particular thanks to Elizabeth Murad for administering the blog, Professor Mary Lynch, Kate Stoneman Chair in Law and Democracy & Director, Center for Excellence in Law and President & Dean Alicia Ouellette of Albany Law School for hosting this blog.  It is an honor to join such a distinguished group of scholars and teachers.

We knew it was going to be a bad bar year when on Sept 14, 2018 the NCBE announced that “the national average MBE Score for July 2018” had decreased “about 2.2. points from the July 2018 average.”  And, indeed, as states have announced the pass rates based on their own individual formula of MBE plus essays plus the MPT (multistate performance test) plus their own individualized questions, the results were bad.  A lot of our students failed the bar exam.  Pass rates were down in New York, in California, Georgia, Florida, in Texas, and lots of other places.  Yet at the same time, individual schools saw significant success in raising pass rates in the face of grim news all around them.  All of this makes for glib headlines and much handwringing, but in the context of a blog post on “Best Practices for Legal Education” it is more helpful to take a step back and assess the tools we, as legal educators, have available to us in addressing bar passage in our individual schools.  I do so from my Ph.D. studies in higher education as well as from my experience as a dean, associate dean, law professor, and medical school professor.

One of my main themes this week will be to argue for individualized problem solving.  If anyone comes to you with a product to solve all your bar passage problems, I hope after this week you will be able to ask some questions about the data on which they base their claims.    Because a productive discussion of bar exam passage really rests on two questions—1. Why aren’t the students at your law school passing the bar exam at the rate they “should” and 2. What should you do about it?

I am going to use this week to share with you some of the resources available to law schools, to individual faculty members, and even to law students who want to increase their chances of passing the bar the first time.  Along the way, I hope to address some of the unhelpful myths that have arisen and to endorse a very old idea borrowed from the then revolutionary 1960s era child rearing techniques of Dr. Benjamin Spock: These are your students—and you know more than you think do.  Trust your judgement.  Ask questions.  That doesn’t mean that you can do everything yourself—it’s fine to consult with experts, but in the end addressing bar exam passage issues is a school wide effort and everyone has relevant information to add and a valuable role to play.

To get started, it’s helpful to have an overview of the players.  As a matter of foundational Constitutional Law, each state retains the power to license and regulate professionals.  (more detail here).   As a result, every state and territory has its own process for setting criteria for bar passage.   Almost every state contracts with the National Conference of Bar Examiners which develops the annual exam, grades it, and spends a lot of time explaining itself.  If you have any interest in this topic, a free subscription to The Bar Examiner will quickly bring you up to speed.

Tomorrow–how a test from the 1950’s trips up today’s digital natives (or “Do we need a Tardis to match law school curriculum to the bar exam?”)

New York Proposes “Experiential Learning Requirements” as Condition of Licensure: CLEA and NYS Bar Committee Respond

Readers of this blog and followers of the NCBE’s expansion remember  that this past Spring New York became the 16th state  to  adopt the Uniform Bar Examination (UBE), changing  its longstanding bar admission requirements.  Many voices opposed adoption including the New York State Bar Association (NYSBA) (see Committee on Legal Education and Admission to the Bar (CLEAB) report 10-29-2014  and vote of House of Delegates), the Clinical Legal Education Association (CLEA) and the Society for American Law Teachers (SALT).  Despite these and other  opposition voices, the proposal was adopted with the new changes going into effect for the July 2016 bar examination.

During discussion of the adoption of the UBE, the Court was encouraged  to include clinical or experiential  requirements for licensing so that lawyers admitted to the New York Bar would be ahead of the curve — a position I firmly support.   On the opposite coast, California had been engaged in a multi-year process examining licensure and profession readiness which resulted in a proposal requiring 15 credits of experiential learning before admission.  In response to the movement to incorporate experiential learning in bar admission,  the New York State Court of Appeals formed a Task Force on Experiential Learning and Admission to the Bar.  Just last month, that Taskforce requested comments on its proposal that

New York adopt a new mechanism for ensuring that all applicants for admission to the bar possess the requisite skills and are familiar with the professional values for effective, ethical and responsible practice. In light of New York’s diverse applicant pool, and in an effort to accommodate the varying educational backgrounds of applicants, the Task Force suggests five separate paths by which applicants for admission can demonstrate that they have satisfied the skills competency requirement.

The New York Law Journal examined the proposal in an article found here.   In addition, the Honorable Judge Jenny Rivera, chair of the Taskforce attended a meeting of NYSBA’s Committee on Legal Education and Admission to the Bar (CLEAB) to explain the proposal and answer questions.

It is heartening that the Court is concerned about and wants to  require the development of essential lawyering skills and professional values acquisition. However, without more, Pathway 1 of the current proposal will not actually ensure  that applicants to the bar experience the kind of skill development and value formation that the Taskforce desires.  Pathway 1, referencing new ABA standards,  requires schools to confirm that they have published  their “plan for incorporating into their curriculum the skills and professional values that,  in the school’s judgment,  are required for its graduates’ basic competence and ethical participation in the legal profession.” It also requires law schools to certify  that law graduate applicants for admission “have sufficient competency in those skills and sufficient familiarity with those values” which are publicly available on the law school’s website.  Although Judge Rivera believes that the certification process described in Pathway 1 can have some real bite, as pointed out in comments submitted by the Clinical Legal Education Association (11.9. 15 CLEA SUBMISSION ON EXPERIENTIAL REQUIREMENT ), Pathway 1 simply mirrors the experiential training requirements already mandated by the American Bar Association.     

New York’s  law school deans, not unexpectedly,  submitted comments supporting the “flexibility” of Pathway 1.  The  CLEAB report to the Experiential Taskforce expressed concern that without additional content to Pathway 1 “little will be accomplished” by the proposal.   And as one member of the NYS bar committee  argued, “what law school is going to admit that one of its graduates did not acquire the skills or  values promised on its website?”

In my opinion, the most important concern is whether applicants to the bar have ever represented or interacted with a client, or operated as a lawyer, in a live setting under guided, experienced supervision before admission.  In its comment to the Taskforce, CLEA urges that a “three- credit clinical training requirement” be added for all J. D. applicants to the New York Bar.  This makes sense.  Law school clinics and faculty-supervised externships are designed to create the very kind of skill development and value acquisition with which the Court is concerned.  And clinical faculty have developed the formative assessment tools to maximize skill and professional identity formation.

I am hopeful that, in its next iteration of the proposal, the Taskforce will heed CLEA and CLEAB’s comments and come back with recommendations that will ensure applicants for the bar are ready to engage in competent, ethical and professional representation of New York’s citizenry, corporations, and notforprofits.

 

 

 

 

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