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.)

“Teaching the Next Generation of Lawyer Leaders in a Time of Polarization” – Reflections on the AALS 2019 Conference on Clinical Education

If you have never attended an AALS Conference on Clinical Education, you have missed a transforming and immersive experience that includes supportive peers, provocative learning, and meaningful scholarly discussion while celebrating student-centered community activism.   It is attended both by those who teach primarily through clinical courses and by other professors and administrators who want to learn more about clinical androgogy, experiential learning, and justice lawyering. Deans and other law school folks enjoy the intra-law school and inter-law school collaboration efforts facilitated there.  The Clinical Legal Education Association, an advocacy organization, sponsors a biannual  new clinicians workshop adjacent to the conference and supports the local community where the Clinical Conference is held through its per diem project.  The conferences are always well attended, with the 2019 conference (held last month in San Francisco, May 4-7) hosting a whopping 780 participants.

The yearly AALS Clinical Conference is not a “talking heads” conference.  The program format varies from year to year but always involves intentionally planned opportunities for mentoring and discussion in smaller groups, with ideas and resources to bring back to campus. At the end or near end of the academic year, it provides an opportunity to nurture one’s exhausted spirit and rekindle the right-brain in a community that values  fun, creativity, and play as necessary skills for long-term  survival, teaching, writing  and do-gooding. Often, cutting edge research ideas are presented here before they take hold in the rest of the legal academy or larger community.  For example, yesteryear conferences introduced legal educators to pedagogical, andragogical and curricular theories such as backward design.   In another example, I first became aware of the early research on implicit bias at a Clinical Section program, well before this concept  entered the vernacular, was discussed by the ABA, or became a CLE requirement for lawyers in New York State.

This year’s conference did not disappoint.  Its theme, Teaching the Next Generation of Lawyer Leaders in a Time of Polarization, not only was timely but was intended to suggest that, perhaps, legal educators have a role to play in decreasing polarization and advancing understanding of shared humanity.  The conference organizer’s posited the challenge this way:

Today, we and our students are confronted with threats to virtually every norm in the legal and political world –the environment we live in, a free press, election integrity, judicial independence, standards of respectful debate, facts, the rule of law. Our students appear energized and anxious to take this on, but what new tools and opportunities should clinical legal education be providing? ….

How do we build the next generation of lawyer leaders when our students have grown up in an era of strong division, attacks on institutions of government, and the frequent rejection of civil discourse? 

The conference explored how to facilitate discussion among students and others with diverse worldviews while continuing to sustain productive learning communities for all — especially including those whose identities or religious or political views are degraded by extremist or reductive narratives.  How do we continue to pronounce and support the rule of law? How do we facilitate professional engagement in civil discourse when some classrooms are sorely lacking in diversity and a few students or one individual might carry the full weight of the ignorant or degrading narrative?  The conference organizers argued we must equip our students with creativity, judgement, and a toolbox of knowledge, skills, and values that will enable the coming generation to meet these unprecedented challenges.”

Participating in the conference was wonderfully helpful to my thinking as an educator. It made me reflect and learn from others in the small discussion group settings.  Sad to say, it was not my “transmogrifier; I am not now a wise and perfect facilitator of discussion of polarizing topics. Nor am I now certified as an educational designer of flawless learning environments.  However, I do have five reflections I want to weave into my preparation for and delivery of next year’s teaching as well as import into my discussions about the legal academy.

First, I need to defend higher education and law schools when unfairly attacked. In an era when the narrative touted in some circles suggests that lefty higher education professors exist only to foist their liberal views on students,  I found the themes and discussions at this conference more consistent with my experience in academia. Instead of arrogant proselytizing, most of my sister and fellow educators, at Albany Law School and beyond, try to empower learning in their students, facilitate creative ideas in the academic setting, enhance professional development of law students/budding lawyers and encourage community benefit and access to justice through our work.  Do we always succeed? Probably not. However, most of us have the same shared goals.

Second, I need to be mindful that Americans – and probably many of our overburdened students – are simply “exhausted.” By ugly, polarizing, speech. By hateful acts. By constant “breaking news” of dysfunction in our nation’s political capital. The conference’s plenary session “America Polarized: What Drives Us Apart? What Brings Us Together?” presented the results of a research report entitled, “Hidden Tribes: A Study of America’s Polarized Landscape.” It finds an “Exhausted Majority” in the American electorate. This research has been featured in The New York Times, The New Yorker, The Atlantic, The Washington Post, The Financial Times, The Miami Herald, NPR, and CNN.

As I think of my students as containing both those excited about fighting for change but also those exhausted by polarizing discussions, how do I proceed?  How can I pick up on those cues during stressful times in the semester? How can I model and include less exhausting learning methods without shying away from ugly facts, cases, laws and legal history?  When is it time for private “one minute papers,” or private “on line feedback, submissions or comments” and when must something be thoroughly hashed out publicly?

To address this kind of polarized exhaustion, should I revisit classroom rules and class participation guidelines that facilitate learning for all my students?   In my Domestic Violence Seminar course which usually enrolls approximately 20 students, I have found some useful tools in creating an appropriate classroom climate for discussion of difficult issues. My Course Packet includes a modified version of Sophie Sparrow’s excellent Professional Engagement Expectations for the Classroom,   along with an  Assessment Rubric for Class Participation (which I modified from one my Academic Dean,  Connie Mayer,  created.  I am going to review these materials again with the concept of exhaustion in mind. (There are of course diverging views on the pros and cons of making a “safe” or educationally fertile classroom as well as what “safe” means. For contrasting views see Berkeley Education tools and an article about teaching “insensitive” topics in law schools in Atlantic Monthly). 

Third, I will remind myself of the research presented at the conference.  Research conducted by More in Common, a nonprofit research organization devoted to bridging political divides, suggests there is “more to the story” than a polarized populace. Those researchers found a wider spectrum of beliefs among Americans than one would realize when listening to, reading, or clicking on the news. They also found Americans are far more aligned on many critical issues than you might think.

For example, our data show that 75 percent of Americans support stricter gun laws, 82 percent believe that racism is at least a somewhat serious problem in America and 79 percent favor providing a pathway to citizenship for illegal immigrants brought here as children. In addition, 77 percent of Americans agree that our differences are not so great that we cannot come together.

Fourth, I will encourage students (and urge myself ) to dig underneath the polarization and understand individuals’ values and fears. Professor Daniel A. Yudkin, Department of Psychology, Yale University, a post-doctoral researcher who  presented the Hidden Tribes research results,  noted at the conference and in his NYT commentary here that

our report identifies a powerful explanation for political polarization. It shows how discrepancies in people’s “core beliefs” (their moral values, parenting philosophy, feelings about personal responsibility and so on) explain differences in their political views.

Yudkin recommends this research as an entryway to discussion for teachers and scholars.  Misperceptions surrounding values and fears can cause Americans to misunderstand and misjudge each other. An example Yudkin discusses concerns views of good parenting. Conservatives align good parenting with “manners” and “respect,” while liberals tend to value fostering “curiosity” and “independence.” Fostering a discussion about how we love our children and try to be good parents could help us understand each other’s goals and values,  even if we disagree with each other’s methods.

I will consider whether in the cases I teach, the examples I provide, the arguments I encourage students to form, the hypothetical [problems I create, whether I allow room for development of empathy for the other? Do I acknowledge the underlying common humanity of all actors – in my area, as it pertains to the “abuser”, the “sexual assaulter”, the “murderer”, the “misogynist”? Should I?

Do I focus too heavily on the best opposing argument? Do I encourage enough human empathy for the other side even when preparing students to zealously advocate for ours?

Finally, using the values celebrated and embraced at Clinical Conferences such as experimentation, joy, community support, and creativity, I will continue to struggle with but also make peace with the dynamic that advancing empathy, unity and civil discourse does not impede or undermine my obligation to call out injustice. Upholding the rule of law does not preclude admitting the many times the law fails and how it rarely meets its aspirations in the daily lives of so many of our sister and fellow Americans.

Thank you to the the AALS Clinical Conference organizers, presenters and participants and the CLEA workshop organizers and presenters for providing me so much to reflect and improve upon this summer.

 

Teaching Optimism

Chris Rock’s tweet “Are black men an endangered species? No, endangered species are protected by law,” captures at once the failure to apply our laws and when applying them to do so effectively. Scan to the recently released Senate Select Committee’s Study of the CIA’s Detention and Interrogation Program, yet another example of how we struggle as a culture with the rule of law.

How do law schools inspire students to work within a system that yields such results?

The AALS Deans Steering Committee had this to say: “Law school empowers students to become agents of change because it teaches students about the legal system of the United States, a system that has the seeds of change built into its structure.” The statement goes on to say that “The rule of law is the foundation of our society, our political system, and our economic system” and “The primary role of law professors is to teach the next generation of lawyers to think critically about problems, to understand the structure and power of law in our society, and to be thoughtful and engaged with respect to solutions.”[1]

Indeed, critical thinking about legal and other strategies that touch on social wrongs has been discussed in law school classrooms and clinic supervision for decades. However, our legacy is the workarounds and neutralizing of civil rights, workers rights, environmental, and other laws intended to help us solve social ills; the seeds of change have not borne the results expected. Students who are attracted to law school because they see law as a tool for solving problems, soon sense a system that is mightily frayed. As these students navigate the texts and training offered, they struggle with how within our venerated legal system to achieve change that will connect the law to the values they consider essential for a viable society.

Vermont Law School’s curriculum committee just approved a new course called Legal Activism: Lawyering for Social Change designed to expose students to theoretical and practical approaches to legal activism. The course will use Alan K. Chen and Scott Cummings, Public Interest Lawyering: A Contemporary Perspective (Aspen Elective 2012) as its text, taking advantage of the book’s focus on activist lawyers and legal strategies in our history. The impetus for the course was largely the disconnect between the careful web of procedure, precedent and statutes that perpetuate unsustainable results and the desire so many of our students have expressed to find paths that reflect the values they hold.

As law schools consider how to prepare students for the “new normal” (a painful phrase), we must recognize that among them are those who question the very premises of normalcy. Our challenge is to work with these students to foster a sense that they can achieve meaningful results, and that it is not too late to try. Their pursuit of change may test the structure of law in our society and its relevance to the increasingly urgent problems we face. While they may not discover more sustainable results than those achieved by activist lawyers in the past, we will do well to help them envision the possibilities.

[1] See “Statement on the Value of Legal Education,” http://www.aals.org/wp-content/uploads/2014/09/Statement-on-the-Value-of-a-Legal-Education.pdf

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