Thoughts from the Recent Past

I sometimes look through SSRN for articles from the past to help me better see the present and what might work best for the future for our students.  That being said, I am often troubled in pursuing past research because so little action has tended to take place in consequence of the revelation that people shared so publicly and wisely with us in the past.  I think that's true in academic support and bar passage.  A not-so-long-ago article from 2004 makes the point, I think. Day, Christian C., Law Schools Can Defeat Our Bar Pass Problem - Do the Work!. California Western Law Review, Vol. 40, p. 321, 2004, Available at SSRN: https://ssrn.com/abstract=563923

In brief, Prof. Day's thesis is that it's largely up to us, as legal educators, to think, strategize, organize, and implement educational experiences that best help our students enter the professor as attorneys.  And, if I may add, I think it is up to see as legal educators to challenge the status quo story about the bar exam as a neutral non-biased arbiter of competency to practice law.  

First, let me start with Prof. Day's suggestions as to how law school educators might better tackle bar issues (and I quote):

• The dean and the faculty should lead the battle.
• Recognize and support students who learn differently.
• Recognize that the law does not come easily for most. Professors must teach students to see what professors may have seen almost intuitively.
• Law schools can prepare students for the bar by teaching them the law.
• Law schools should encourage students to take "bar courses" for a grade and be prepared to counsel them if their work is poor in these courses.
• Law professors should concentrate on creating relevant essay exams and not create multiple choice questions too prepare students for the bar.
• Law schools should identify and assist students who come to law school with bad study habits learned in hight school an d college.
• Law schools must produce better legal writers by improving essay exam writing.
• Law schools must give students better feedback regarding their performance.
• Law schools should stress the importance of the bar exam to students.
• Law schools should advise students to get their financial and personal lives in order to pass the bar.
• Law schools should counsel graduates who failed the bar and offer recommendations to improve their chances.
• Law schools should keep detailed statistics to pinpoint students at risk.
• Law schools must "bit the bullet" with their retention policies.
• Law schools should create and maintain strong academic support offices.
• Law schools can offer special, non-credit, bar prep courses.
• Law schools should limit or phase-out take-home and open-book exams.
• Schools might consider grading on the curve.
• Law schools should crate more small sections in basic courses.
• Law schools may have to reduce some of their offerings in order to make certain their students are grasping the basis.
• Schools should eliminate "Pass/Fail" grades except in the most limited circumstances.
• Last, but not the least reinstate and enforce attendance policies.  Id.

I'm sure that there's not agreement as to all of these suggestions; they are, after all, just suggestions.  But from the high altitude view it seems to me that Prof. Day challenges us as legal educators to take seriously our role in training students for holding licenses as legal practitioners.  That's a high calling.

Second, as legal educators, I believe that we have an obligation to understand, analyze, and to improve the educational experiences of our students and to challenge the status quo.  I'm sort of a radical, as some of my prior writing might suggestion. https://papers.ssrn.com/  When authorities make claims, I doubt.  That's why I appreciated a very recent article challenging the story that the bar exam is a neutral instrument. DeVito, Scott and Hample, Kelsey and Lain, Erin, Examining the Bar Exam: An Empirical Analysis of Racial Bias in the Uniform Bar Examination (January 26, 2022). University of Michigan Journal of Law Reform, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4018386

I'll let you dig into the details but pay particular attention to the appendix because that's a particularly glaring spotlight on the lack of transparency about the relationship between the bar exam and race & ethnicity.  In brief, the appendix surveys publicly available data from 56 jurisdictions (the 50 states plus the District of Columbia and the 5 territories) and only one jurisdiction routinely provides data regarding bar exam results and race.  That state is California.  That seems revealing to me.  It's as though there's no problem because we don't report a problem.  Yet, the thrust of the article, convincingly to me, is that the authors took the time to put in the "elbow grease" to analyze the limited data available and what they learned is not good at all.  Take a close read at that article.  It too is well worth your time.

All in all, these two articles, among many others, suggest that we ought not be silent.  That we have obligations to question, to speak up, to debate, to analyze, to understand, and to advocate.  In short, we have a high calling as academic support professions.  A very high calling indeed.  And one in which all of our voices are needed.  (Scott Johns, Denver Law).