Saturday, January 5, 2008

Gary Rosin on ABA's Proposal Regarding Bar Pass Rates and Accreditation

We've been following South Texas Law Professor Gary Rosin's important work on bar pass rates for a while and its implications for the ABA's consideration of modifications to its law school accreditation standards

Here is Professor Rosin's latest report, which discusses the ABA's December 2007 draft of interpretation 301-6.  (You'll also want to read Rosin's Unpacking the Bar Exam: Of Cut Score, Competence, and Crucibles, available on ssrn.)  There current proposal is as follows (I've put it in green to make it distinguish it from the rest of the text):

    Proposed Interpretation 301-6  (Approved for Notice & Comment 12-1-07)

A.  A law school’s bar passage rate shall be sufficient, for purposes of Standard 301(a), if the school demonstrates that it meets any one of the following tests:
1)  That for students who graduated from the law school within the five most recently completed calendar years:

    (a) 75 percent or more of these graduates who sat for the bar passed a bar examination, or
    (b) in at least three of these calendar years, 75 percent of the students graduating in those years and sitting for the bar have passed a bar examination.

In demonstrating compliance under sections (1)(a) and (b), the school must report bar passage results from as many jurisdictions as necessary to account for at least 70% of its graduates each year, starting with the jurisdiction in which the highest number of graduates took the bar exam and proceeding in descending order of frequency. 

2)  That in three or more of the five most recently completed calendar years, the school’s annual first-time bar passage rate in the jurisdictions reported by the school is no more than 15 points below the average first-time bar passage rates for graduates of ABA-approved law schools taking the bar examination in these same jurisdictions.

In demonstrating compliance under section (2), the school must  report first-time bar passage data from as many jurisdictions as necessary to account for at least 70 percent of its graduates each year, starting with the jurisdiction in which the highest number of graduates took the bar exam and proceeding in descending order of frequency.  When more than one jurisdiction is reported, the weighted average of the results in each of the reported jurisdictions shall be used to determine compliance.

B.  A school shall be out of compliance with the bar passage portion of Standard 301(a) if it is unable to demonstrate that it meets the requirements of paragraph A (1) or (2).

C.  A school found out of compliance under paragraph B, and that has not been able to come into compliance within the two year period specified in Rule 13(b) of the Rules of Procedure for Approval of Law Schools, may seek to demonstrate good cause for extending the period the school has to demonstrate compliance by submitting evidence of:

(i)  The school’s trend in bar passage rates for both first-time and subsequent takers: a clear trend of improvement will be considered in the school’s favor, a declining or flat trend against it.

(ii) The length of time the school’s bar passage rates have been below the first-time and ultimate rates established in paragraph A: a shorter time period will be considered in the school’s favor, a longer period against it.

(iii) Actions by the school to address bar passage, particularly the school’s academic rigor and the demonstrated value and effectiveness of the school’s academic support and bar preparation programs: value-added, effective, sustained and pervasive actions to address bar passage problems will be considered in the school’s favor; ineffective or only marginally effective programs or limited action by the school against it.

(iv) Efforts by the school to facilitate bar passage for its graduates who did not pass the bar on prior attempts: effective and sustained efforts by the school will be considered in the school’s favor; ineffective or limited efforts by the school against it.

(v) Efforts by the school to provide broader access to legal education while maintaining academic rigor: sustained meaningful efforts will be viewed in the school’s favor; intermittent or limited efforts against it.

(vi) The demonstrated likelihood that the school’s students who transfer to other ABA-approved schools will pass the bar examination:  transfers by students with a strong likelihood of passing the bar will be considered in the school’s favor, providing the school has undertaken counseling and other appropriate efforts to retain its well-performing students.

(vii) Temporary circumstances beyond the control of the school, but which the school is addressing: for example, a natural disaster that disrupts the school’s operations or a significant increase in the standard for passing the relevant bar examination(s).

(viii) Other factors, consistent with a school’s demonstrated and sustained mission, which the school considers relevant in explaining its deficient bar passage results and in explaining the school’s efforts to improve them.

Rosin finds the most recent proposal for 301-6(A)(1) "is a major step forward in at least two respects. First, to a certain extent, it takes into account cumulative Bar passage rates, including subsequent Bar passage by those who failed on the first attempt. Second, for purposes of calculating a school’s cumulative Bar passage rate, its graduates from the relevant years are considered as a group."  He identifies other problems with the proposal and concludes, "An empirical analysis of projected difference scores shows that the minus 15% difference score standard will disproportionately affect both historically black law schools, as well as law schools with part-time programs."

Of particular interest to law professors is a table, which lists 17 schools at "high risk" and another 11 schools at "moderate risk" for problems under the proposed standards.

Update:  If you'd like to see all of Professor Rosin's reports collected in one place, they're available here.  Over at, Dave Hoffman's been following this story and some time ago Bill Henderson at discussed bar pass scores as well.  Also, I had a little on this over at money-law some time ago and here.

Alfred L. Brophy
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January 5, 2008 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Advice to Law Journals, Part 21

21  publish cartoons

This idea I got from the Journal of Legal Education.  Seems a little strange at first, but I think there're some possibilities in doing innovative things.  I think of publishing cartoons as a metaphor for innovative things.  And, hey, you might have something as entertaining as The Road to Serfdom in cartoons!  You'll recall that we've spoken a little bit about this before in this series (way back in August).

Remember, thought, that doing funky things--like publishing cartoons--can easily be overdone.  A little bit of innovation goes a long way.

Alfred L. Brophy
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January 5, 2008 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Thursday, January 3, 2008

More Property Poetry

Cole_landscape_1825 While all the cool people are in New York for AALS, I'm sitting here in Tuscaloosa.  So I thought that I'd post a little more property poetry.  Like my most recent property poetry post (on John Rueben Thompson's poem about the sale of Virginia's Natural Bridge), this will be from the nineteenth century.  Actually, I think there are a couple worth using here, from William Cullen Bryant.  First, there is Bryant's poem to landscape painter Thomas Cole on Cole's departure for Europe in 1829:

Thine eyes shall see the light of distant skies;
Yet, Cole! thy heart shall bear to Europe's strand
A living image of our own bright land,
Such as upon thy glorious canvas lies;
Lone lakes--savannas where the bison roves--
Rocks rich with summer garlands--solemn streams--
Skies, where the desert eagle wheels and screams--
Spring bloom and autumn blaze of boundless groves.
Fair scenes shall greet thee where thou goest-- fair,
But different--everywhere the trace of men,
Paths, homes, graves, ruins, from the lowest glen
To where life shrinks from the fierce Alpine air.
Gaze on them, till the tears shall dim thy sight,
But keep that earlier, wilder image bright.

Then there is Bryant's Ages, delivered to the Harvard Phi Beta Kappa Society in 1821, which is closely related to Thomas Cole's series of landscapes, Course of Empire.  A few stanzas below illustrate Bryant's image of changes related to property ownership and use from the Natives to the European settlers:

There stood the Indian hamlet, there the lake
Spread its blue sheet that flashed with many an oar,
Where the brown otter plunged him from the brake,
And the deer drank: as the light gale flew o'er,
The twinkling maize-field rustled on the shore;
And while that spot, so wild, and lone, and fair,
A look of glad and guiltless beauty wore,
And peace was on the earth and in the air,
The warrior lit the pile, and bound his captive there:


Not unavenged—the foeman, from the wood,
Beheld the deed, and when the midnight shade
Was stillest, gorged his battle-axe with blood;
All died—the wailing babe—the shrieking maid—
And in the flood of fire that scathed the glade,
The roofs went down; but deep the silence grew,
When on the dewy woods the day-beam played;
No more the cabin smokes rose wreathed and blue,
And ever, by their lake, lay moored the light canoe.


Look now abroad—another race has filled
These populous borders—wide the wood recedes,
And towns shoot up, and fertile realms are tilled:
The land is full of harvests and green meads;
Streams numberless, that many a fountain feeds,
Shine, disembowered, and give to sun and breeze
Their virgin waters; the full region leads
New colonies forth, that toward the western seas
Spread, like a rapid flame among the autumnal trees.


Here the free spirit of mankind, at length,
Throws its last fetters off; and who shall place
Or curb his swiftness in the forward race!
Far, like the cornet's way through infinite space
Stretches the long untravelled path of light,
Into the depths of ages: we may trace,
Distant, the brightening glory of its flight,
Till the receding rays are lost to human sight.

You may recall that Asher Durand painted a portrait of Cole and Bryant in the Catskills together, Kindred Spirits.  (Another interesting story here--it was purchased by Alice Walton recently as an anchor of her art collection.)  And as long as we're talking about Cole and Bryant, you might be interested in reading Bryant's oration on Cole's death.

Next up: Bryant's Thanatopsis.

Endnote: Cole's 1825 landscape is from wikipedia.

Alfred L. Brophy
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January 3, 2008 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 2, 2008

Papers for AALS Junior Property Scholars Works-in-Progress Panel

I hope that those of you who are heading to New York will attend the Junior Property Works-in-Progress panel on Sunday morning at 9:00 a.m.  The two papers being presented are now available for download if you want to read them in advance - click on the link after the title for a PDF version.  The papers are:

Nestor Davidson, Standardization and Pluralism in Property Law.  Download Davidson.pdf

Lee J. Strang:  Damages as the Appropriate Remedy for "Abuse" of an Easement:  Moving Towards Consistency, Efficiency, and Fairness in Property Law.  Download Strang.pdf

Hope to see you there!

Ben Barros

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January 2, 2008 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Private Road Act Litigation

Pennsylvania has a Private Road Act that allows owners of landlocked parcels to condemn a private road for access to a nearby public road.  The Pennsylvania courts have interpreted the Private Road Act as requiring a degree of necessity that is short of strict necessity but that still imposes a fairly high hurdle for the petitioner.  In re Packard, 926 A.2d 557 (Comm. Ct. 2007) is an interesting example.  Petitioners had access to their property through a run-down private road.  They argued that use of this road was impractical; the court rejected their claim because they had not met their burden to prove necessity.  The case is discussed in this story from the Harrisburg Patriot News, though the story doesn't really capture the role of necessity in the court's analysis.

Ben Barros

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January 2, 2008 in Land Use, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Panel on Eminent Domain Reform

For those of you who are going to be in NY this week, Ilya Somin has organized a panel Friday morning on eminent domain reform at the Federalist Society's parallel conference.

Ben Barros

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January 2, 2008 in Conferences | Permalink | Comments (0) | TrackBack (0)

Sunday, December 30, 2007

Advice to Law Journals: Part 20

now a suggestion from Danny Sokol over at antitrust and competition policy blog:

20 in evaluating an interdisciplinary work, check to see if any literature is cited from outside law reviews.  Does a law and economics piece cite work from economics journals?  Does a legal history work cite what you would expect would be the relevant literature from history?  I think this is a decent (and relatively easy) way of making a rough assessment of the quality of interdisciplinary work.  Of course, this test will likely yield more false positives (that is, more articles will be found good under this test than articles that are actually good) than false negatives.

Alfred Brophy
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December 30, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)