Law School Academic Support Blog

Animal Farm (and the 11th Annual AASE Conference).

I am just now coming down from the high of attending the 11^th Annual AASE Conference last week, hosted --in the most gracious way-- by the University of Idaho College of Law in Boise. As one might expect, it was an incredibly collegial and informative academic conference. I know I have mentioned how academic support folks are by the far the kindest, most generous, and scholarly academicians. It is refreshing to be in room after room with colleagues who just get “it.”   “It” is how to get students to: attend workshops, participate in bar review, pay attention to how they learn, and create processes that are efficient and effective. But “it” also is: how to get doctrinal faculty to: attend workshops, keep an eye on students who are falling behind, keep an eye on students who may learn differently. “It” is finally the collective[1] search for information about the NextGen bar exam and whether your jurisdiction will adopt it (and if so, when).

One of the social events at the conference was a dinner and drinks at the Zoo. I mean, who doesn’t love a Zoo?[2] There were giraffes, zebras, lions, and a red panda who I think should have their own Instagram account. It was Tuesday, so there were tacos. It was a different and fun way to build community and enjoy a lovely evening in Boise.

However, I have to wonder if our monkeying[3] around trying to get a handle on a test that we do not know a lot about-including whether it will actually be a thing in many of our jurisdictions- is just caging up the academic support predator that would love to set its sights on this prey by getting to know it (and actually figuring out if knowing it is necessary).

We spent a lot of time talking about the NextGen bar exam together. There were wonderful sessions about how to get ready, or adapt, or prepare students for the NextGen bar exam. In fact, every presentation about bar readiness (and some that were not) discussed the NextGen bar exam. One example was a great presentation about how to use Professional Responsibility as a golden ticket for teaching skills for both the UBE and NextGen bar exams. Another talked about teaching IRAC from a NextGen perspective. We had amazing presentations about how to use AI to Draft Next Gen practice questions, how to prepare students for the new legal research components of the NextGen exam, creating rubrics and learning objectives based on NextGen foundational skills, and more.

But what if after all this careful planning and preparing for NextGen, we, like Columbus, do not find ourselves in the destination we had planned to reach? What if the unknowns we are so carefully trying to infer[4] have been calculated incorrectly? We may already have, or are about to welcome, students who could be taking this bar exam and we have been left with penumbras and emanations.  We have become like Academic Support Ninja Warriors[5] who are trying to get to the goal without knowing exactly what challenges lie ahead. Some of this is the NCBE not being entirely forthcoming about the exam, and another piece of it resides in jurisdictions who have not shown their hands either. Together, that leaves us no better off than the animals in the Zoo: we are at their mercy in terms of getting fed the information we need, and then we wonder if all our hard work to know more than we have been currently told is going to end up being merely entertaining -- but not freeing in any way.

A very special thank you to Karen Wellman and her amazing team at U. of Idaho and the AASE Executive and Programming teams for making this another memorable conference. We are lucky to have each other on this quest. AASE will be posting all the materials and slides from the conference-look in your emails and on the website for more information.

And finally, I am crazy excited that all these amazing people will come to me next year. We will see you in Boston for the 12^th Annual AASE Conference-Suffolk University Law School, May 2025!

(Liz Stillman)

 

[1] But not universal, some jurisdictions have committed with clear timelines in place.

[2] Yes, the animals there may not love it, but bear (get it?) with me for a moment.

[3] The puns will be fast and furious-please feel free to groan-or just shoot me an email that says, “UGH!,” I deserve it.

[4] And asking ChatGPT to help us infer as well.

[5] Which will be the name of my second ASP themed band.

Categorizing Law School Underperformance, Part 400-and-Something

I have written previously about trying to categorize the reasons why students underperform in law school.  If we understand the root causes of underperformance, and especially how multiple causes can interact, we can better develop remedies.  One cause of underperformance stands out to me, and I struggle with it:  Sometimes students underperform because they just feel like the cases are wrong.  The legal rule to which they tacitly agree by “enacting” it into their outline does not comport with their own sense of justice.  This struggle then leads to difficulty in integrating the knowledge into a cogent cognitive schema of what the law IS. 

After many sleepless nights trying to figure this out, here is my approach.

When a student struggles with this issue, I explain that there is a great big, foundational question about what law IS.  Is a law “right” because it is God-given (Aquinas/ Natural Law)?  Because it is the product of rational analysis (Langdellian Formalism)?  Because it was enacted or recognized by a proper legal authority (Positivism)?  Or just because those in power say it is right (Crit Theory)?  Unfortunately, legal education rarely introduces students to this idea, and they get the impression that what they read in the cases is the only valid outcome.  Because important judges have concluded that a legal rule ought to be a rule, students interpret this as an implicit statement that the rule is irrefutably valid.  How can it possibly be law if it is not “right”?

I try to help students reconcile this by discussing three lenses for conceptualizing the question of “what is law?”  The first lens is Formalism, the idea that judges apply neutral and objective logic to discern in a scientific fashion what legal rule is rationally correct.  The second is Legal Realism, which pushed back on Formalism in the early 20th century by holding that judges are not neutral and logical arbiters of validity but instead are influenced by personal beliefs and other external factors.  This idea negates the “seamless web” of Formalism because different judges with different beliefs and biases render different outcomes, thus creating inconsistencies.  The next group is the Crits.^[1]  Starting in the '60s and extending into the '90s and beyond, this group held that law is neither science nor the product of idiosyncratic but good faith adoption of external influences, but instead is simply a façade to mask the reality that law is a tool of oppression.

I suggest to students that what they are feeling might be because they are Legal Realists or Crits at heart. When they read cases that purport to state what the law is, neutrally and logically, legal education implies that these rules are right as a matter of rationality and, tacitly, that they are morally right.  As Realists or Crits, some students internally reject this, but that rejection feels like confusion. 

The problem for many students is that legal education does not explain any of this.  Instead, we silently put forth a Formalist framework and ignore the fact that students may struggle with the implication that these rules with which they fundamentally disagree are nonetheless morally right.  By denying them even an opportunity to appreciate the contradictions inherently exposed by a Realist or Crit analysis, we create a mental and moral crisis in the student that acts as a block to the integration of knowledge into memory.

For instance, take the Torts case book standard of Volunteers of America v. Hughes.  There, the court held that an impoverished immigrant woman consented to inoculation to which she objected.  The court took this position even though government officials coerced her into that consent by refusing to admit her to the United States and pointing out that she did not have funds to return to her native country. 

To justify this conclusion, the Formalist points to the fact that the plaintiff ostensibly consented by staying aboard for the shot so as to achieve her goal of entering the counry.  But the Crit recognizes that consent is not genuine if it is coerced and that the plaintiff being an immigrant woman instantiates the notion that law treats people differently based upon race, nationality, sex, and other identities.  When the professor moves on from Hughes without noting the dilemma, the student connects the dots to how the case implicates a woman’s right to choose what happens to her own body.  “How can this case possibly be ‘right’?  Did I understand it wrong?  Everybody else seems to get this case.  Why am I not getting it?  Am I even cut out for law school?”

So, what can academic support faculty do?  First, I tell the student about Formalism, Realism, and Crit Theory and ask them whether this rings a bell.  It often does, so I explain that, no, you are not alone.  Hundreds of law review articles take up your exact argument.  Super smart law professors have written entire Crit casebooks, which shows that you are thinking at an advanced level.  You are not misunderstanding this; you are recognizing the same contradictions others have noticed.  You are far from alone.

But the last step is the one with which I struggle.  How can students perform well in law school if they fundamentally disagree with what they are taught?  “Am I sacrificing my moral compass to get a law degree?”  To answer these questions, I suggest that the student pretend to be a Formalist for the sole purpose of exams.  Go ahead and use your IRAC.  Go ahead and write the rule as if it is valid and analyze it as such.  Fit your Crit ideas somewhere in the essay, particularly with professors who might seem open to them, but otherwise, fake it ‘til you make it (and can later break it).  Pretend to be a Formalist for now so that you can get access to the profession and fight against the Formalist rules.  

I have seen some success with this approach.  Having knowledge of the Matrix helps students perform better in it and later break it.  So, in a consequentialist way, my approach seems justifiable.  I see a lot of “ah ha” moments when the student realizes that their struggle is not because they cannot understand law but because legal education cannot move past its Formalist foundations.  We can write all the law review articles we want, but if we keep teaching our students solely from a Formalist lens without even acknowledging the dilemma, we fortify the façade Crit Theory seeks to dismantle.

With all that said, my last step with the student is perhaps the most important one.  That is, I insist that whatever you do, do not jettison your internal sense of justice because you think you must do so.  You do not and should not.

Louis Schulze (FIU Law)

[1]  I hesitate to type that word because, as an employee of the State of Florida, writing the word “Crit,” I’m sure, is verboten.  Just for the irony, I will say that those legal rules are not “right” just because they passed through the allegedly proper legal authoritarians authorities (Positivism), but are in fact wrong under just about any other jurisprudential lens. 

Ambivalence

My grading is almost 100% done (the only thing left is one rescheduled exam that will get to me in about a week). I am generally happy that it is over. It was a large undertaking with two undergraduate classes and two law classes this semester-over 100 students to grade in total. But, while I am glad I did the work, I am also ambivalent about it.

Why am I not sipping a drink with an umbrella and congratulating myself on meeting the grading deadlines? This semester I failed two students-one in each of my undergraduate sections. To clarify: they received Fs, and I failed them. These are two different things. I also gave some lower passing grades that included parts of the alphabet I don’t often use in these and my other classes. I think I now know what it means when someone says, “this is going to hurt me more than it hurts you.” This hurts. Let me be very clear, I am not angry at the students, nor do I think they weren’t interested in the class or didn’t care-I think they just couldn’t do it. I am not taking it personally-it isn’t about me. Yet, I have to wonder how I missed such large cracks forming before the students fell through.

One of these students had perfect attendance and regularly participated in class, they just didn’t submit any work during the semester[1]-absolutely none, except they showed up (after rescheduling) for their oral argument (which was only worth 15% of a grade). Out of a total of 100 possible points, they had 40. I asked them in person (privately) after the oral argument, when I should expect their work and they nodded and said, “soon.” The other student got a perfect score on the first quiz, did an amazing oral argument, and then turned nothing else in and barely showed up for the rest of the semester. This student had 41 points. I was generous in awarding points for both. I am only allowed to give a grade of incomplete if they had turned in over 2/3 of the work. I begged them to turn in a few more assignments so I could give them an  “I”: no answer.

I emailed these students (often), contacted their Dean of Students, and also their faculty advisors. Academic Support me tried all the tricks to get their attention-and received no answers anywhere I turned. I also looked on our student tracking and found that they both had done poorly in their other classes as well.[2] Was this a relief? No. Did it take a little sting out of the process? Yes[3].

And then there were the law students. They also had some issues turning in assignments. I had one student who copied an MPT point sheet basically verbatim and turned it in as their own work[4]. When confronted, they only asked if they could take the class next intersession instead[5]. I suppose on an interrogatory that would be a “neither admit nor deny” type of answer. I emailed another student asking if they wanted an Incomplete since they had not turned in any assignments (but had done the quizzes and shown up -more or less-frequently) and the response was to submit most of the assignment a few days past my deadline without answering that email or communicating that they planned to do that in any way.

They will both pass the class. Will it be a grade that lifts their GPAs? I doubt it, but it is a one credit class, so it really wouldn’t have had a profound effect either way. Perhaps this was their calculation as well. Again, I tried not to be hurt or angry.[6]

I am pretty certain that all of these students are overwhelmed. I am not sure why this semester was the most overwhelming of all the semesters since the pandemic. Perhaps our collective trauma and grief has come home to roost- a bit of academic long COVID. I know that our collective mental health has been fraught-and world events and responses to them have been a lot. Please do not think that I am fishing for “you did everything you could for them.”  I am not looking for that, I am just wondering where they were that I couldn’t see or hear them-and more importantly how did they get there? And also, are there more students hiding in that spot?

I’ll be checking those nooks and crannies more carefully during the bar prep months as well as next semester, and I am suggesting that we all do (because, goodness knows, we don't already have enough to do...).

(Liz Stillman)

 

[1] They added the class about a week in, so I thought they were catching up for a bit.

[2] One had actually failed every class this semester.

[3] But then I felt that this kind of validation is not helpful to students either. A group failure is still a failure, just not as lonely.

[4] When your explanation of a changed provision in an MPT includes the words, “an examinee might…,” you’re busted.

[5] No, they cannot because they already took the final exam.

[6] Although the cheating did tip me over into anger. I am flexible about most things, but dishonesty isn’t on that list.

Congratulations to Everyone

In thinking about this post, I originally planned to congratulate students finishing the JD, then I thought about 1Ls making it past the first year.  I couldn't then forget about the middle-child 2Ls, and of course, ASP staff and faculty help students in those journeys.  So instead of focusing on one group, I want to congratulate everyone for making it through another year.

3Ls/Graduates - Great job completing 3-4 years of extremely difficult work.  Completing your JD is an amazing accomplishment and puts you in elite company.  Celebrate safely, but also, get right back to studying for the opportunity to take the bar exam.

1Ls - You made it.  I know some of you didn't believe you could keep going, but you did it.  Now is the time to take a slight break and get some legal experience.  Some of your professors will probably tell you that experience will help you contextualize what you learned and help you understand it better.  They are right, and working in a law firm is fun.

2Ls - We didn't forget about you.  You are over halfway finished, and we are proud of everything you accomplished.  Your law school is ready to help you cross your last hurdle next year.

Last, but certainly not least, ASPers - Thousands of students will reach their dreams at the end of July because of you.  The sleepless nights, constant feedback, and worrying will be worth it when you see your students take the oath of attorneys in your state.  Keep up the good work.

(Steven Foster)

Academic and Bar Support Scholarship Spotlight

Note (A. Cibellis), Taking Back the Bar: The need for State Legislation Directed at Addressing the Disparate Impact of the Bar Exam and Holding the NCBE Accountable, 52 Hofstra L. Rev. 445 (2024).

From the introduction:

This Note will begin by describing the bar exam’s discriminatory history and its roots as an intentionally exclusionary tool to the legal profession. Part II will first examine the concept of disparate impact and the role disparate impact analysis has played in targeting practices that are facially neutral but have an adverse effect on minorities. It will then examine the historically rooted disparate impact of the bar exam on minorities. Part III will examine the failed attempts to challenge the disparate impact of the bar exam and address the need for legislative intervention in regard to the NextGen bar exam.16 Part IV will propose a legislative solution where the states will more closely examine the effects of the NextGen bar exam to ensure that targeted efforts to lessen the disparate impact are being implemented. It will go on to discuss that state legislation allowing disparate impact claims against the bar exam to be heard will help put pressure on the NCBE to fix the deep-rooted problems, as well as hold it accountable for the problems that have persisted for decades. Lastly, Part IV will examine a workable alternative pathway to lawyer licensing that can help achieve a more diverse legal profession that does not work to exclude capable candidates, and will conclude by addressing counterarguments from supporters of the exam who contend that the bar exam is necessary to ensure minimum competency for practice.

[Posted by Louis Schulze, FIU Law]

 

More on "Determinants of Success."

I recently posted in the Academic and Bar Support Scholarship Spotlight a new article out of UC Law SF, entitled Determinants of Success on the Bar Exam: One Law School's Experience 2010-2023.  In that post, I introduced the article by saying:  "In this study, UC Law SF faculty and outside researchers collected and analyzed data to assess the impact of multiple factors on bar passage. "  Some preliminary thoughts:  

One factor the study found successful in increasing bar passage was shifting the focus of interventions from at-risk students to entire class cohorts.  Does this suggest that law schools should jettison programs aimed solely at at-risk students?  I am inclined to say "no" for several reasons.  First, it is important for schools to assess whether bar passage pervades all (or most) quintiles of their class or whether there is a sharp decrease at, say the penultimate quintile.  If the latter, targeted support might be a better choice.  Second, one should note that the purpose of the shift at UC Law SF was to increase bar passage.  Academic support aimed solely towards at-risk students has additional purposes, however, such as preventing academic dismissal and building the lawyerly skills of those most needing to improve.  In addition, many commentators remind us that academic support is a worthwhile measure to support the success of minority students.  As a result, wholly eliminating targeted academic support would undermine those goals.¹  

Another factor positively correlated with bar passage was "requiring and encouraging students to take upper-division bar subject classes."  This is an eye-popping result.  Previous studies have been mixed, at best, in terms of supporting the notion of requiring these classes.  While most studies have found that such requirements do increase the passage of students at the bottom of the class, I am unaware of any that found a passage increase for all students.

The study also found that "offering for-credit bar skills classes in the 3L year focused on improving MBE performance ...  and on overall bar test-taking..." was positively associated with passage.  Several studies have found similar results, leaving us at a place where we can start to accept the proposition that these courses help students pass the bar.  So understood, decision-makers at schools struggling with bar passage who oppose such courses because they are "not the sort of thing we do here" should be prepared to offer less amorphous justifications for artificially deflating students' chances of becoming licensed attorneys. 

Other notable interventions positively correlated with passage included a post-graduation tracking program that encouraged certain students to complete a percentage of their bar preparation course.  Advising students to practice MBE questions (and not just reread outlines constantly) also improved bar passage.  Both these measures are considered best practices in academic and bar support, so these results help justify that status.

In sum, Determinants of Success is an important addition to the recent scholarship on effective bar preparation initiatives.  As with all empirical studies, the usual caveats of generalizability and other limitations apply.²  Nonetheless, I suspect that deans and faculty (particularly academic/ bar support faculty) will find the piece helpful. 

Louis Schulze (FIU Law)

----

1. Note that UC Law SF did not do away with such programming.  The researchers merely analyzed the impact on bar passage.  To the contrary, the article made it clear that the "pervasive model" of intervention was "additive," i.e., on top of academic support focused on at-risk students.
2.  On the bar pass rate topic, law schools have a notable tendency to look for singular causes and magic bullets.  This article offers a starting point for schools to think about ways to support student success.  But those schools must contextualize these findings and analyze whether the various factors might be relevant at their own schools.  

Who's Afraid of the Passive Voice?

“I used the passive voice. I am awaiting the legal writing police and will go peacefully.”

This is an actual text I sent a fellow Commissioner on a town-wide commission after sending an email expressing my disappointment that the recipients did not complete a task. Well, actually, I expressed disappointment in the task not being completed-which is, as we all know, different. I had originally written the email using the active voice, but I wanted to temper my statement by not appearing to attack the recipients. They are, after all, neither courts nor lawyers.

But here is a sacrilege I will unleash for the Academic Support audience only: sometimes, you can use the passive voice. In fact, sometimes, you should. As I await the ankle[1] bracelet that is surely coming for me, I will explain when and why you might be willing to be my partner in “crime.”

1. Distance. Sometimes your client (or other actors in your facts) have done terrible things. Or maybe, terrible things have happened, and your clients may or may not have played a role in causing them. For example, the pedestrian was hit by a vehicle vs. my client hit the pedestrian who was walking with the light in a crosswalk on a bright sunny day (with no glare). You are going to need this distance. Because your client sucks-or the facts are not favorable to them.
2. Tone: Sometimes, you would prefer not to assign blame as directly. For example,  this Court made the absolutely baffling decision to grant this this motion vs. Inexplicably, the decision was made to grant the motion. Courts don’t like being accused of misconduct.[2]
3. You don’t know who did something: you cannot place an actor in the role, so you speak of the facts as happening without attributing them to anyone.
4. You are trying to focus on the reaction to the circumstances and not the actor who created them: this comes in very handy during trials when you need to tell the Court and/or jury what a police officer knew when they stopped someone without having to say who told them that or even if it was true[3].
5. You are stating a commonly known truth: for example: using the passive voice is frowned upon.

As someone who works with a wide range of international (mostly LL.M.) students, I have found that there are some languages that tend to veer towards the passive voice (like many romance languages) and teaching these students to identify and use the active voice is a struggle for all of us. But I do tell them that finding the passive voice is as simple as looking at bumper stickers because, as we all know, “Shit Happens.”

(Liz Stillman)

 

[1] Maybe a wrist bracelet so I cannot no longer use the dreaded PV?

[2] And they are aware that the coded phrase, “with all due respect your honor,” means, “you are wrong here.” The first time a judge ever said, “I know what you mean by that,” I almost let excrement escape from my body (see, distance!).

[3] This is your hearsay “get out of jail free” card during suppression hearings. Works every time.

Associate Professor of Academic Success and Bar Preparation at Southwestern

SOUTHWESTERN LAW SCHOOL in Los Angeles invites applications for full-time entry-level or experienced Visiting Associate Professor of Academic Success and Bar Preparation. The successful candidate will be eligible to apply for any future openings and may have the opportunity for additional renewals as a Visiting Associate Professor or Associate Professor of Academic Success and Bar Preparation.

AS/BP faculty work with students from pre-matriculation through the bar-study period. They teach our summer Bison Bootcamp program and serve as bar-study coaches for graduates. They teach the 1L Foundations of Law & Practice course, which instructs students about core law school skills, like reading cases and statutes, note-taking and classroom engagement, rule synthesis, outlining, and exam-taking techniques. They also teach upper-level courses, including Remedies, Multistate Bar Exam, and Cal Bar Writing. As we learn what will be covered on the new California Bar Examination, courses or course content may change.

We seek candidates who are passionate about teaching and can demonstrate success in the classroom, love working with students outside the classroom, and are willing to contribute to the campus community through committee and related service.

Students may earn their J.D. through various pathways, including two-, three-, and four-year programs and residential and a mostly asynchronous online program that starts in August 2024. The visiting faculty member will not be teaching in the online program during 2024–2025.

Founded in 1911, Southwestern is an ABA-accredited, independent law school located in the center of Los Angeles. Our mission includes educating lawyers ready to serve clients, the profession, and our society with excellence, empowering students to reach their potential, cultivating inclusion and belonging, and shaping the law and public policy through teaching, scholarship, and service.

Salary: The successful candidate will be offered a salary no less than $130,000. The salary may be adjusted for a successful candidate who has multiple years of full-time teaching experience at an ABA-approved law school.

To apply, please send your CV, professional references, research agenda, and teaching evaluations from the past five years (if applicable) via email to [email protected] and put “Faculty Application” in the email subject line. Review of applications begins immediately. Initial interviews will be held via Zoom, and callback interviews will be held in person. The ideal candidate should be available to start between June 1 and July 16, 2024.

Let's Talk About Test Anxiety

Test anxiety is a term used to describe stress experienced before an exam that rises to a heightened level of anxiousness and self-doubt. Test anxiety is a type of performance anxiety that can feel overwhelming and is serious enough to impact your performance on the exam. Stress before an exam is normal. In fact, normal stress before an exam is triggering your sympathetic nervous system and preparing you to act. This can improve brain function in the short-term, keep you focused on the task, and help you perform at your best.

If your parasympathetic nervous system doesn’t kick in, you can remain in a heightened state of stress too long, or even experience a panic attack. Sensations experienced during panic attacks include trouble breathing normally, shaking hands, feeling faint or nauseous, feeling like you are having a heart attack or that you are choking. These sensations can make it impossible to focus on the exam.

Even if your stress is not rising to the level of panic attack, you may still find your stress is difficult to manage before an exam. You might feel like you’ve entered a freeze, flight, or fight state. I find freezing to be the most common defensive reaction in the exam setting. I think we’ve all experienced reading an exam question and feeling our minds go completely blank.

If this happens to you frequently, I encourage you to talk to a professional counselor. Not only will they be able to provide strategies for managing the anxiety, but they may also be able to identify an underlying cause of the anxiety. If this is happening to you for the first time in law school, please know you are not alone. The higher-stakes testing environment, pressure placed on law school final exams for overall course grades, and breadth of subject matter make law school exams different than other exams. It is incredibly common for law students to feel exam stress or test anxiety for the first time in their academic history.

What should you do if you are feeling extreme stress during an exam?

Breathe. First, try closing your eyes and taking some long, deep breaths. If this helps, focus on your senses. Identify five things you can see, hear, and touch at your seat. Instead of trying to focus on the exam questions, think of one major concept you remember from the course generally. Take a moment to write down a few rules you remember related to that concept. This is often enough to get out of the freeze and move forward with the exam.

If this does not work, you can’t breathe normally, or taking deep breaths is adding to the stress, try leaving the testing room for a few minutes. Take a short walk. If this is not helping, and you begin to experience symptoms of a panic attack, ask for help. Go to the appropriate person on your campus who assists with exam emergencies. According to Scientific American, panic attacks “usually begin abruptly, reach their peak within 10 minutes and end within half an hour.” You may be able to work through the episode and still complete your exam successfully. Suffering in the exam room usually does not help the situation. So, get the support you need.

Good luck on exams and remember that taking care of your health during the finals period is critical to exam performance.

(Ashley Cetnar)