Tuesday, February 7, 2023

Academic and Bar Support Scholarship Spotlight

Some very important work recently uploaded to SSRN:

1.  Salinas, O.J. (UNC), Secondary Courses Taught by Secondary Faculty: A (Personal) Call to Fully Integrate Skills Faculty and Skills Courses into the Law School Curriculum Ahead of the NextGen Bar Exam, 107 Minn. L. Rev. __ (2023).  

From the abstract:

Using the casebook method as the primary teaching tool for training future lawyers, particularly during the first year, encourages ostracism. It can create a situation where students feel quickly separated into a “you do belong here” or “why are you here?” bucket. Those students who are strong oral communicators that can think quickly on their feet, or those whose identities and perspectives mirror the majority, can feel somewhat empowered and further accepted. They are placed into the “you do belong here” bucket. Those who are not are left on the sidelines watching the law school game and questioning whether law school and the legal profession are right for them. I felt like I was on the sidelines when I was in law school. And, like many faculty who teach skills courses in the legal academy, I have experienced what seems like teaching and working from the sidelines.

This semiautobiographical Essay provides an opportunity for faculty and administrators to better recognize when they may be working with students who feel like they are on the sidelines. The Essay also encourages law school faculty and administrators to reevaluate how they support skills training and treat and value faculty who teach skills courses.

Part I of the Essay summarizes my personal experience and struggles in (A) the traditional law school classroom, where only certain skills and experiences seemed to be valued and appreciated, and (B) the legal academy, where I may often be considered a secondary faculty member teaching secondary courses. Part II of this Essay discusses how the increased efforts by law schools to expand experiential learning created more opportunities for students to connect doctrine to the practice of law while, unfortunately, solidifying the disparate treatment of skills faculty. Part III concludes that the incorporation of skills assessment into the NextGen bar exam is an appropriate time for law schools to reevaluate and restructure how their law school curriculum advances the training of practical lawyering skills and how their law school administration and doctrinal faculty value and support faculty who teach skills courses.

2.  Szto, Mary (Mitchell Hamline), Barring Diversity? The American Bar Exam as Initiation Rite and its Eugenics Origin, 21 Conn. Pub. Int. L.J. 38 (2022).

From the abstract:

According to the 2020 census, the US population is over 42% minorities. However, only 14% of the legal profession is. In 2020 the American Bar Association released data that the first-time bar exam pass rate was 88% for Whites, 80% for Asians, 78% for Native Americans, 76% for Hispanics, and 66% for Blacks.

Initiation rites often involve a separation from society, a liminal period, an ordeal, and then reincorporation into society. The bar exam follows this pattern. However, many minority candidates cannot afford months of unpaid isolated study, much less further bar attempts.

Racial disparities in first time bar passage rates are not coincidental, but rooted in the eugenics origin of the bar exam. Bar admissions standards arose amid teachings about Anglo-Saxon white supremacy in the late 1800s and early 1900s. Eugenics theory was then mainstream science and held that non-whites should be denied access to property ownership, education, and the legal profession. Minorities were excluded from most law schools, and there was widespread fear of immigrants diluting the US white population and the legal profession.

Eugenics-inspired federal redlining policies from the 1930s also led to huge racial wealth gaps then and now. Homeownership is the chief way Americans build intergenerational wealth. Redlining prevented non-whites from owning homes by blocking access to federally subsidized home mortgages. Thus, in pre-pandemic 2019 White families had eight times the wealth of Black families and five times the wealth of Hispanic families. Therefore, to diversify the legal profession, we must acknowledge this eugenics history and racial wealth gap and institute the diploma privilege, or create sequenced open book bar exams or other alternatives that do not require costly isolated study and bar preparation courses. Healing reform will help all candidates, and the public we serve.

[Posted by Louis Schulze, FIU Law]


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