Tuesday, November 1, 2022
1. Kris Franklin (New York Law School), Meditations on Teaching What Isn't, 66 N.Y.L. Sch. L. Rev. 47 (2022).
From the abstract:
Lawyers reason from facts, but we also reason from absence.
The lack of something we might logically expect to be found, but has not been, may be highly and suggestively meaningful. In a culture infused with matters of race and not-infrequently affected by racism, what "is not there" will often be things that especially intersect with the lives of people of color.
This essay explores the teaching of absence as a form of logical thinking. In so doing, it surveys a wide array of examples in various core legal subjects that may point to the omission of diverse perspectives. The article provides law faculty and students with samples of ways to make more visible that which is currently not seen.
2. Jeffrey A. Parness (Northern Illinois), Civil Procedure and the New Bar Exam, 94 Univ. of Colorado L. Rev. Online Forum (Forthcoming 2022)
From the abstract:
In 2022 the National Conference of Bar Examiners (NCBE) issued its “Content Scope Outlines” for public comment, soliciting input on “significant oversights.” The outlines were designed to inform the public “of the scope of the topics to be assessed in the eight Foundational Concepts and Principles (FCP) and the scope of the lawyering tasks to be assessed in the seven Foundational Skills (FS) on the next generation of the bar exam.” One of the eight FCP was “Civil Procedure” (including constitutional protections and proceedings before administrative agencies).
This comment addresses some “significant oversights” on the topic of civil procedure. In doing so, it recognizes that basic law school federal civil procedure courses will need alteration if law schools wish to prepare students for a revised exam.
One major problem with the FCP on Civil Procedure is that it generally follows the Federal Rules of Civil Procedure (FRCP) and some related federal statutes which, as written, do not reflect the realities of federal district court civil practices (putting aside the ever-increasing multidistrict cases and reviews of administrative agency adjudications). A second significant problem is that there is no recognition of how one state court’s civil practices differ from federal civil practices and from other state practices, excepting the brief nods to “state courts’ general jurisdiction, as distinct from federal courts’ limited jurisdiction” and to “specialty state courts such as probate courts.” “Newly licensed” attorneys will likely begin, and undertake most, if not all of their civil case practices in state courts, tribunals, commissions, and agencies. The “Next Gen” Bar Exam should reflect this reality.
Beyond reflections on the FCP topic of civil procedure, this comment illustrates how that topic could be utilized in “integrated exam questions.” The Testing Task Force of the NCBE (TTF) recommended in April 2021 that “an integrated exam permits use of scenarios that are representative of real-world types of legal problems” that newly-licensed lawyers encounter in practice. Such an exam is quite distinct from an exam containing “discrete components comprised of stand-alone terms.” In an integrated exam, more than one FCP (e.g., civil procedure, contract, evidence, torts and constitutional law) could be assessed together with more than one FS (e.g., issue spotting, negotiation, client management and legal writing).
The American Bar Association and others have urged that lawyers be trained to be practice-ready. The NCBE seeks a new bar exam that better assures entry-level lawyers do not face “serious consequences” due to lack of “knowledge” of common topics. A reformulation of the civil procedure portion of the bar exam should reflect more everyday issues arising in civil litigation, whether or not addressed in federal rules, statutes, or precedents. Reforms should go beyond recognizing “specialty courts such as probate courts.” A new exam should reflect the reality that civil cases are chiefly resolved outside of federal district courts. Many civil cases are resolved in general jurisdiction state courts, in governmental adjudicatory bodies originating outside of constitutional judicial articles including commissions, tribunals and agencies, and in private dispute resolution forums as under the Federal Arbitration Act. A revised bar exam should reflect these realities.
(Posted by Louis Schulze, FIU Law)