Monday, June 17, 2019
Mask: n. a covering for all or part of the face that protects, hides, or decorates the person wearing it. – Cambridge English Dictionary
It is a common practice for high-stakes gamblers, also called “sharks”, to use a trusted acquaintance when placing a bet to keep the identity of the shark gambler unknown and preserve the odds. By concealing one’s identity, an actor may control or influence audience perception. Academic Support professionals influence the perception and actions of the students we serve. ASP behind a mask allows us to fulfill our mission of student service and advancement. Behind a mask our message is not altered or concealed, only the messenger is.
My real-life experience behind the mask looks like this. For weeks, I preached and pushed a certain commercial tool to my bar takers. I negotiated a substantial discount for their purchase. I offered weekly incentives, provided demonstrations, and all but swore a blood oath that this tool would increase their chances of passing the bar. Crickets. I asked a recent bar taker to share her experience with the tool. She made one social media post that echoed verbatim my message. Within minutes of the post, I received multiple inquiries about the tool and sign-up confirmations.
Today’s law student does not respond to the pedagogy of the past. We may tell our students what is best for them academically and make recommendations for learning tools to support their development. And we may be right. But until our students “hear us” and find credible our advice and recommendations, our words fall hallow. We can strategically use the peer learning model and employ student tutors, fellows, and former students to promote our messages by sharing what has worked for them to positively influence the actions of current students.
Friday, June 14, 2019
The NCBE announced recently the Bar Examiner magazine has a new website with the most recently publication online. Here is the information from Tiffany Stronghart at the NCBE.
"I’m inviting you to visit the new website of the Bar Examiner, a quarterly magazine published by the National Conference of Bar Examiners providing comprehensive, authoritative information on current issues in bar admissions, legal education, and testing.
In our current issue, you’ll find
- statistics from the 2018 bar exam and 2018 bar admissions by jurisdiction;
- score distributions, examinee counts, and mean scaled scores for the MBE and the MPRE;
- a snapshot of the February 2019 MBE results; and
- a look behind the scenes at how MBE items are written, selected, and placed on test forms.
Visit our new site at www.thebarexaminer.org and subscribe to receive emails announcing new issues.
Feel free to share this message with your colleagues or others who may be interested in bar admissions!"
Saturday, June 1, 2019
Standard 316 is garnering discussion throughout the academy and legal profession. The ABA posted a memo detailing both the changes and which schools would fail the new standard. The ABA journal wrote an article asking how Deans will improve pass rates with a link to the memo. The article is an interesting read. I encourage everyone, even if you don't specifically handle bar prep, to become familiar with the changes.
Thursday, May 30, 2019
Last week at the annual Association of Academic Support Educators (AASE) Conference, Professor Paula Manning shared an analogy about learning that gripped my mind and heart.
You see, as Professor Manning reminded us, working out to get in shape is tough work. Building muscles, well, takes daily pain. It requires us to push ourselves, to lift beyond what we think we can, to walk further than we think we can, and to run harder than we think we can. And, it requires us to work out nearly everyday. Moreover, as Professor Manning related, the next day after a heavy workout can feel just downright aching. "Oh do those muscles hurt." But, we don't say to ourselves: "Wow, that hurt; I'm not going to do that again." No, instead, we say to ourselves: "That was a really great workout; I'm building muscle." In short, we are thankful for the temporary pain because we know that it will benefit us in the future.
But, when it comes to learning, as Professor Manning reflected upon, we often tend to not view the agonizing daily work of learning as beneficial in the long term. Rather, if you are like me, I tend to avoid the hard sort of learning tasks, such as retrieval practice and interleaving practice, for tasks which, to be frank, aren't really learning tasks at all...because they aren't hard at all (such as re-reading outlines or highlighting notes, etc.). But, if you and I aren't engaged in difficult learning tasks, then we aren't really learning, just like we aren't really building muscles if we just walk through the motions of exercise.
So, for those of you just beginning to embark on preparing for your bar exam this summer, just like building muscles, learning requires building your mind to be adept at legal problem-solving by practicing countless multiple-choice and essay problems on a daily basis. In short, the key to passing your bar exam is not what you do on bar exam day; rather, it's in your daily practice today that makes all the difference for your tomorrows.
As such, instead of focusing most of your energies on watching bar review lectures, reading outlines, and taking lecture notes, spend most of your learning in problem-solving because that's what you will be tested on this summer. Big picture wise, for the next six weeks or so, half of your time should be spent in bar review lectures, etc., and the other half should be spent working through practice problems to learn the law. So, good luck in working out this summer! (Scott Johns).
Monday, May 20, 2019
As my career in ASP winds down, I have reflected on what I have learned over the years. Here are a few things that strike me as important lessons learned from discussions with my ASP/bar prep colleagues, observations of our profession over time, and my own experiences:
- ASP and bar prep work have gained more recognition through the years. LSAC supported us early on. AALS recognized our efforts with a section designation. Changes to ABA standards brought more attention to our roles. More law schools now have programs, but there is still work to be done if all law students are to have access to full-time, funded services.
- ASP/bar prep started its work to increase academic and bar success for minority students. With the pressures of stigma and backlash, many ASP programs opened services to all law students. Although programs may still have minority components within the services, the broader law school population has now become the focus. Declining admissions (and the resulting decline in applicant credentials in some cases) and ABA emphasis on bar passage rates have continued the pressure for services to be available to all law students. Let us not forget our original purpose of supporting diversity as our roles expand.
- The work we do is not just about grades or bar passage. We teach skills that impact our graduates throughout their lives. We teach skills resulting in better lawyering and more satisfying living. Among the skills we teach are learning strategies, legal reasoning, problem solving, organizing work, managing time, managing stress, and avoiding procrastination.
- We need to be careful that we do not just jump from the "hot topic or solution of the month" to the next hot topic. It is tempting, but ultimately shallow. There is no magic wand available for ASP or bar prep. Learning, memory, and legal reasoning are complex topics with layers of nuance. To those three, we must add the topics of diversity, motivation, procrastination, learning disabilities, time management, work management, stress management, resilience, grit, mindset, and mental health - also very complex and nuanced. I could easily list another dozen topics that relate to our work. We need to investigate deeply to understand the nuances, remain open to intertwined concepts, and build successful strategies over time.
- The numbers game is not all that matters. It is nice if large numbers enroll in courses or attend workshops, but numbers alone do not tell the story. Our work regularly impacts on an individual level. We need to remember that assisting one student at a time is valuable. Let us not forget the merit of one-on-one assistance during our law schools' demand for numbers to tout.
- We need to provide alternative methods for students to access our services. Some services may involve mandatory appointments, workshops, or courses. However, even mandatory offerings may not reach all students who need help or may fail to reach them at the time when they are most receptive. We need to continue to explore different ways to reach students where they are and when they are receptive to services. The possibilities are endless, but include appointments, workshops, packets, handouts, email tips, podcasts, blog posts, YouTube videos, Facebook, Twitter, intranet pages, pop-up events, and walk-abouts.
- We need to remember that each student is unique. One size does not fit all, no matter what theory suggests. Each student comes with individual strengths, weaknesses, challenges, motivations, educational backgrounds, and experiences. We cannot forget the individual when we consider our repertoire of theories, generalities, and strategies.
- We need to ask questions and listen to the answers. I learn some of the best strategies from students explaining what they have discovered. In the search for the combination of strategies for each student, we need to explore with the student what works, does not work, needs to be modified, or needs to be tossed.
- We want students to succeed and are personally involved in their learning. However, ultimately the student must implement the strategies, eschew bad habits, and work to achieve success. Despite our best efforts, some students will not reach their full academic potential and may even fail academically or fail the bar repeatedly. It exemplifies the old adage of leading a horse to water.
- Working 60-70 hours per week (and often more) is the temptation in ASP/bar prep because we want to implement new programs, stay up with professional development, be available to students, show up at events to support them, and answer emails at all times of the day and night. However, working at such a pace leads to burnout and ultimately does not help us or our students. We need to model the work-life balance that we regularly recommend to our students.
- Have faith in your own expertise and the" best practices" that match your law school's culture. The variety of law schools means that one size does not fit all. Be open to ideas and weigh their value for your law school situation. ASP/bar prep colleagues are willing to share ideas and expertise - usually for free. Read the Law School Academic Support Blog, post queries on the Law School Academic Support listserv, attend AASE and AALS conferences or other regional workshops, and reach out to experienced colleagues. However, be wary of anyone who tells you there is one and only one (that is, the individual's own) path to "best practices" in ASP/bar prep; that viewpoint is just not accurate.
- No matter how dedicated and expert we are in our work, our law schools have to provide the facilities and resources for us to do our work well. Without commitments for space, budget, staffing, support services, and equal status, we will be limited in achieving the greatest results for our students. Talk is cheap. It takes actions from each and every law school in support of our ASP and bar professionals to make a difference.
ASP/bar prep work is challenging, impactful, rewarding, and gratifying. We can be proud of what we do each day. What we accomplish is important. We need all law schools to recognize how important our work is for our students' academic success and for their futures. (Amy Jarmon)
Tuesday, May 14, 2019
This week, most of my 3L students are taking their last final exams. On Sunday they will graduate, and within a week or so, they will begin preparing to take the bar examination. Twenty years ago, this meant a return to the lecture hall for eight weeks of intensive lectures, surrounded by my closest classmates and a couple hundred other recent graduates. Today, the rise of online courses and live streaming means it is possible to complete an entire bar preparation course without getting out of bed, or at least without leaving one's home. It may be hard in the face of such convenience, but it is important to remind out graduating 3Ls of the substantial benefits of human contact.
One of the first things I tell my incoming 1L students is, "The law is a social profession." Successful practitioners, I explain, know the value of hashing out ideas and strategies with colleagues, and they develop networks of other lawyers to whom they can turn to make (or receive) referrals or to ask for guidance outside of their own areas of expertise. I tell my students this partly to help them to see the benefits of conferring with their own classmates and of taking advantage of mentoring and networking opportunities. But I also tell them because I know that a significant portion of the students in each incoming class needs this kind of encouragement, because they do not reflexively reach out to others for support and information. This tendency is explained in part by their natural inclinations; according to Eva Wisnik, president of Wisnik Career Enterprises, about 60 percent of those who become lawyers are introverts.
By their 3L year, many students, including some of those more introverted ones, have perceived the value of collaborative work, as in study groups and trial teams. Even so, the ten weeks or so between graduation and the bar exam pose new challenges. Some students, tired of the law school grind, envision a comparatively more manageable summer, one in which they can watch videos and undertake exercises online at their convenience instead of on a set schedule. Others may underestimate the time and attention demanded by the bar exam and conclude that the effort of traveling to campus, particularly on a set schedule, is not worth it. Under these circumstances, it may take extra persuasive effort to convince newly minted graduates that there are benefits to seeking out the company of other new graduates.
Still, there definitely are benefits. Full participation in bar preparation courses can be easier to achieve when the courses are seen as group activities in which groups of students commit to watching videos and working on exercises together (and to hold each other accountable for missed work). Group study and review provides additional opportunities for feedback and clarification. And when bar preparation becomes a stressful, tedious, and/or exhausting chore, as it often does halfway through the summer, commiseration can inspire tenacity.
How do you get soon-to-be ex-students to take advantage of these benefits by making particular efforts to associate with their peers, even when the apparently easier route would be to go solo? There are three things to keep in mind:
- Start early. Don't wait until graduation day is within reach to begin encouraging students to think of ways to work together during bar preparation. Social activities are easier to accept when they are perceived as social norms -- that is, just the way people expect to do things. Pointing out the social aspects of legal practice from the first year is one way to begin. Another way of normalizing the expectation that students will make efforts to work together during bar preparation is to encourage recent alumni who have done this successfully to share their experiences with friends from later classes.
- Make it easy. Bar study is difficult and consuming. Having to make special efforts to collaborate may seem like too much, to those overwhelmed by course expectations. Anything a school can do to lower the threshold of energy or attention required to collaborate can help. Provide dedicated space on campus so that bar studiers can easily find each other. Set up channels of communication early and keep students informed of resources and opportunities to gather, and look for ways to connect such opportunities to activities already on students' radar screens (such as live video programs sponsored by bar preparation companies).
- Add value. Finding ways to provide additional benefits to your alumni can change their calculation of whether or not it is worth it to them to step away from solitude and join their classmates, even if only occasionally. Offering small incentives, like free coffee and snacks or access to classroom space, can make getting together more inviting. More ambitious incentives might include providing supplemental live workshops on particular test-taking skills or subject matter areas, which can simultaneously draw students from their isolation and prompt interaction and planning with other participants.
At the end of the day, success on the bar exam does depend on individual effort. But in the face of innate introversion and technological isolation, we can help our students to recognize, once again, that individual effort can be promoted by social cooperation.
Saturday, May 11, 2019
As many of us know all too well, bar pass rates dramatically dropped upon introduction of Civil Procedure on the MBE in 2015. Some people correlate the drop with decreasing applications, but at least at OCU, applications and credentials were steady in 2011 and 2012, which are the graduates who took the 2015 MBE. Criticism of the MBE may be warranted, but the reality is we need to adjust to the exam in the short term while trying to advocate for a better test in the long term. I don't believe practicing attorneys, who are members of boards of bar examiners, understand the new and more difficult exam. Not only do we need to advocate to the NCBE for changes, we must inform and persuade state boards because the current perception is law schools are the cause of decreasing bar pass rates.
Law.com published 3 articles online that illustrate the perception we are fighting. The first 2 articles focus on law schools and the causes of the decline. The last article discusses how that decline effects the job market. Some articles highlight schools that overcome falling bar pass rates, but inherent in that argument is that other schools aren't doing enough. The logical extension is law school policies and teaching are the major factors influencing bar pass rates. Knowing many of you, I believe law schools are going well beyond what each school provided a mere 10 years ago, significantly more than 20 years ago. Check out the articles below published over the last few weeks.
I encourage everyone to understand the perception in the legal community at large. Let's keep working to make meaningful changes both to the exam and community perception.
Friday, May 10, 2019
Kirsha Trychta, former contributing editor, gladly passed along her notes from the recent webinar discussing declining bar pass rates and the role of law schools. If you have questions, you can contact her for more details. Below are her notes.
On May 6, 2019, I attended a free webinar entitled “Live with Kellye & Ken: Declining Bar Passage and the Role of Law Schools in Bar Exam Prep and Reform.” The 90-minute presentation consisted of six panelists:
- Aviva Abramovsky, Dean of University at Buffalo School of Law
- Leonard M. Baynes, Dean of the University of Houston Law Center
- Jon M. Garon, Dean of Nova Southeastern University Shepard Broad College of Law
- Judith Gunderson, President of National Conference of Bar Examiners
- Kenneth Randall, Dean Emeritus at University of Alabama Hugh F. Culverhouse, Jr. School of Law
- Kellye Testy, President & CEO of LSAC
Gunderson opened the presentation with an update on the state of the bar exam. She explained that the February 2019 MBE mean increased for the first time since 2013. According to Gunderson, the NCBE regularly focuses on the MBE statistic because: (1) the NCBE does not grade the essay component, (2) there are different cut scores across the jurisdictions, and (3) not all jurisdictions release results at the same time.
She then told “the tale of two bar exams,” a tale which emerges if one compares July and February. The NCBE reports that 68-70% of all examinees that sit in February are repeat test takers. Meanwhile, in July repeat test takers comprise only 26% of all takers. Typically repeat test takers earn lower scores than first time takers. Moreover, even February first-time takers have a lower mean than first-time takers in July. Finally, February score reports are complicated by the small number of applicants in some jurisdictions. Consequently, just 3 or 4 people can totally derail a mean average for a particular jurisdiction. In short, February scores are “not stable.”
The adoption of the UBE is also impacting how many times each applicant sits for a bar exam. Overall, the total number of people sitting for the bar exam keeps dropping, and each year there are less “passers” or “strong repeaters” (that is, those people who passed in one jurisdiction and sit again for licensure in a second jurisdiction.) The decrease in overall takers—especially strong takers—continues to drive the overall pass rate numbers down. For more statistics, click here.
Next, the Deans were invited to opine on whether law schools really have a problem with bar passage. Abromovsky acknowledged that “we have a lot of changes going on right now, especially with the UBE.” She suggested that law schools might just need a certain amount of time to “react with pinpointed specificity” to the changing format. Baynes agreed and specifically highlighted the addition of civil procedure to the MBE. He was, however, more concerned that “we’ve created a social construct of who passes and who doesn’t pass.” If people are labeled as “likely to fail” or “likely to pass” perhaps they internalize the labels and then perform consistent with the assigned label. Garon raised another concern: the ABA’s competing goals of increasing the focus on experiential learning and learning outcomes, while also increasing bar passage. Can law schools really do both simultaneously, he wondered. Testy rounded out the discussion by reminding listeners that the LSAC is “an incredibly strong predictor of success in law school,” but it’s not the only thing a law school should consider.
Randall, serving as a moderator, then posed a batch of questions for the panelists: What is the responsibility of law schools regarding the bar exam? Are there tradeoffs? Should there be different curriculum tracks for students?
Garon responded unequivocally: there is a lot of pressure to assume a greater, more active, role in both job placement and bar passage. For example, at Nova Southeastern, they’ve extended bar preparation into all three years of the curriculum. In addition, there is a mentoring program during bar prep for both first-timer takers and repeaters. Nova even offers two years of free CLE to aid in the transition from law school to the workforce, including a “launch pad” program for those who are interested in solo practice. Garon linked the increased pressure to prepare students for the bar and for legal practice to economic changes. He suggested that “economics have undermined the relationship between law schools and law firms.” Students are expected to be billing associates on their first day at the office, instead of just beginning their training when they join the firm. Baynes aptly summarized, “we are now responsible for everything.”
The University of Houston Law Center conducted a regression analysis, using five years of law school data, and determined, unsurprisingly, that lower law school grades correlated with lower bar passage. In response to their findings, Houston created a “special course” for the lowest performing students. Baynes explained that the law school admits every student thinking they will pass the bar exam, so if it becomes apparent that the student might not pass the exam, it is incumbent upon the school to intervene. One possible intervention could be the mandatory implementation of midterm examinations in first-year courses. One Dean observed that since administering midterm examinations, students’ performances have increased overall, including in courses without a midterm examination (i.e. pedagogical transference). He then quickly—and probably correctly—remarked that law professors “might not be the best teachers.”
Baynes has also seen an increase in the degree of anxiety among his students. Students are more willing to talk about mental health issues, but the cost of treatment remains a barrier. To combat the growing trend, his law school now offers meditation embedded in the curriculum. Similarly, other schools have adopted wellness activities like yoga and petting zoos. Garon commented on the Board of Law Examiners continued improvement in their handling of character and fitness disclosures, especially as those disclosures relate to mental health issues. He then raised a parallel concern: academic testing accommodations. While the jurisdictions have been willing to revisit their position on mental health disclosures, many remain quite unmoved regarding testing accommodations. Too frequently, accommodations which were considered appropriately documented at law school are not sufficiently documented for the Board of Law Examiners, creating another barrier to exam success.
Abramovsky used most of her allotted time to discuss the impact of the post-2008 economy on law schools. The average law student is no longer unmarried, childless, willfully unemployed, and fully dedicated to their legal education. Her institution found, again unsurprisingly, that completing the bar preparation course was the strongest indicator of bar passage. She encouraged schools to focus their efforts on identifying why some students do not complete the bar preparation program. She suspects those students are too busy working part-time (or even full-time) jobs to study for the bar exam. Perhaps that also explains why the student earned poor grades in law school, she wondered aloud. She said law schools would be wise to check-in with their students in a routine and more holistic way. She offered this metaphor, ripped from the headlines: an emergency room adopted a series of mini-checklists that doctors must complete before discharging a patient, designed to reduce the frequency of post-discharge infections. Since adopting the quick “have you…” checklists, infections have dramatically decreased. It appears a little check-in goes a long way.
Following Abramovsky’s observations about the financial crunch, Testy announced that AccessLex is currently developing a lower-cost bar preparation course. AccessLex’s press release states, “The program will function like a co-operative, with a transparent pricing structure established at a break-even level and reduced further as cost efficiencies are gained.”
The panelists entertained questions from the audience. A listener inquired whether the NCBE could better assist law schools in identifying the specific subjects that are tested on the bar examination. Gunderson explained that the specific subtopics vary every few years, following input from various stakeholders. For example, in the last few years several jurisdictions have suggested that environmental law and Indian law should be added to the bar exam, but the number of requesting jurisdictions “has yet to reach critical mass.” Meanwhile, the number of stakeholders pushing for negotiable instruments continues to decline each year. Gunderson stressed that the “NCBE has no power.” Ultimately the individual jurisdictions decide what components to administer and how to score the exam.
Gunderson then pivoted to how students can better prepare and announced that NCBE study aids are now available in an interactive learning platform. The “everything” packet which includes over 900 practice questions costs $250. She also publicized that the NCBE plans to host an academic support focused conference this fall and will subsidize the travel costs for some attendees to ensure maximum participation. She then reminded everyone that the Testing Task Force is out there collecting suggestions on the future of the bar exam, including the focus groups which will take place at the Association of Academic Support Educators Conference later this month.
Garon is concerned that “we keep expanding what we expect of students.” The bar exam used to be just a measurement at a moment in time between law school and starting your legal training. Now the bar exam is frequently being used as a proxy by employers to measure the graduates’ readiness to join the workforce. Garon recommended that we scale back the breadth of knowledge tested and instead increase the professionalism component, because that is what employers want anyway.
The panelists also talked about the future of “state specific components” on the bar exam, considering the UBE. Each Dean explained how their particular jurisdiction has handled the issue. It quickly became apparent that there is little consensus among the jurisdictions. Abramovsky chimed in, and said, “reasonable discourse” was to be expected, and that “we should be proud to consistently reexamine issues [like this one] that require core balancing decisions.”
(Kirsha Trychta, Guest Blogger)
Thursday, May 9, 2019
In light of the rough and tumble bar passage declines over the past half-dozen years of so, numerous blogs and articles have appeared, trying to shed light on what factor or factors might be at play, running the gamut from changes in the bar exam test instrument, changes in law school admissions, changes in law school curriculum, etc. In addition, the academic support world has righty focused attention on how students learn (and how we can better teach, assist, coach, counsel, and educate our students to "learn to learn"). Indeed, I often prowl the internet on the lookout for research articles exploring potential relationships among the social (belonging), the emotional (grit, resiliency, mindset) and the cognitive in relationship to improving student learning.
Nevertheless, with so much riding on what is really happening to our students in their law school learning and bar preparation experiences, I am a little leery about much of the research because, to be frank, I think learning is, well, much more complicated than some statistical experiments might suggest.
Take one popular issue...growth mindset. Studies appear to demonstrate that a growth mindset correlates with improved test scores in comparison to a fixed mindset. But, as statisticians worth their salt will tell you, correlation does not mean causation. Indeed, it maybe that we ought not focus on developing positive mindsets but instead help our students learn to learn to solve legal problem and then, along the way, their mindsets change. It's the "chicken and the egg" problem, which comes first. Indeed, there is still much to learn about the emotional and its relationship with learning.
Take another popular issue...apparent declines, at least with some segments of bar takers - in LSAT scores. Many argue that such declines in LSAT scores are indeed the culprit with respect to declines in bar exam outcomes. But, to the extent LSAT might be a factor, by most accounts, its power is very limited in producing bar exam results because other variables, such as law school GPA are much more robust. In short, LSAT might be part of the story...but it is not the story, which is to say that it is not truly the culprit. Indeed, I tend to run and hide from articles or blogs in which one factor is highlighted to the exclusion of all else. Life just isn't that simple, just as learning is not either.
So, as academic support professionals indebted to researchers on learning, particular cognitive scientists and behaviorists, here are a few thoughts - taking from a recent article in Nature magazine - that might be helpful in evaluating to what extent research findings might in fact be beneficial in improving the law school educational experience for our students.
- First, be on the lookout for publication bias. Check to see who has funded the research project. Who gains from this research?
- Second, watch out for positive statistical results with low statistical power. Power is just a fancy word for effect or impact. If research results indicate that there is a positive statistical relationship between two variables of interest, say LSAT scores and bar exam scores, but the effect or impact is low, then there must be other latent factors at play that are even more powerful. So, be curious about what might be left unsaid when research results suggest little statistical power.
- Third, be on the guard for research results that just seem stranger than the truth. They might be true but take a closer look at the underlying statistical analysis to make sure that the researchers were using sound statistical tests. You see, each statistical test has various assumptions with respect to the data that must be met, and each statistical test has a purpose. But, in hopes of publishing, and having accumulated a massive data set, there's a temptation to keep looking for a statistical analysis that produces a positive statistical result even when the most relevant test for the particular experiment uncovers no statistically meaningful result. Good researchers will stop at that point. However, with nothing left to publish, some will keep at it until they find a statistical test, even if it is not the correct fit, that produces a statistical result. As a funny example, columnist Dorothy Bishop in Nature remarks about a research article in which the scientists deliberately keep at it until they found a statistical analysis that produced a positive statistical result, namely, that listening to the Beatles doesn't just make one feel younger...but makes one actually younger in age.
- Fourth, do some research on the researchers to see if the research hypothesis was formed on the fly or whether it was developed in connection with the dataset. In other words, its tempting to poke around the data looking for possible connections to explore and then trying to connect the dots to form a hypothesis, but the best research uses the data to test hypothesis, not develop post-hoc hypothesis.
Here's a link to the Nature magazine article to provide more background about how to evaluate research articles: https://www.nature.com. (Scott Johns).
Saturday, April 20, 2019
Bar results are rolling in, and nearly everyone starts wondering about the national MBE numbers. Some schools in states like Texas and California want the numbers to try to predict what pass rates will be in their jurisdictions. Other states, like Oklahoma, are more interested in understanding their pass rates. The vast majority of us want the information to also understand what is happening on the MBE. This will not be my "NCBE is an out of touch, opaque, etc." post, at least not entirely. I am merely passing along information from February. You can find the NCBE's official announcement here.
In case you don't want to go to the NCBE site, the February mean score was 134. The good news is the mean is up 1.2 points from last year, and for Oklahoma, that led to increased pass rates. However, 134 is still 2.2 points lower than February 2015. For more context, Oklahoma sets the MBE passing score at 135. Oklahoma does combine essays and MBE scores, but we don't scale essays to the MBE. 135 is what Oklahoma determined was the equivalent to passing an essay. Thus, over 10,658 takers did not score above Oklahoma's MBE passing score. Each of those takers would need above passing essays scores to pass the entire exam. UBE states with 270 cut scores are in the same situation, and the lowest UBE cut scores of 260 would still have significant numbers of takers below 130.
Numerous factors obviously impact the national mean. Many others will continue the debate on whether the MBE is a "minimum competency" exam. The February results are another data point in that analysis.
Sunday, March 3, 2019
I attended the Houston session of the 2019 AccessLex Institute Regional Workshops for Law School Administrators. The workshop title was "The More You Know: Delivering Student Success." The one-day workshop was very interesting and worth attending.
This workshop topic is being repeated three more times in different locations: March 19 (Boston), March 21 (New York City), March 26 (Chicago). You can find out more about these events at the AccessLex website under the events tab: www.accesslex.org.
The workshop covered a variety of topics - some directly related to academic support and bar while others gave interesting information that provided institutional and higher education context. The workshop was attended by a diverse group of law school administrators from academic affairs, admissions, financial aid, academic support, bar preparation, career services, and more. The speakers from AccessLex Institute were very knowledgeable and well-prepared. There was plenty of time to ask questions and for members of the audience to comment and share.
The first session presented by Keinan Thompson updated us on the political landscape and legislative proposals. It gave a big picture context to our discussions for the remainder of the day. I had not been following the Prosper and Aim proposals at all closely, so this session gave an interesting background on the Congressional hot spots.
Laura McGhee then discussed the diversity pipeline and its impact on legal education. As the coordinator for my law school's pipeline program with a local high school, some of the data in this session was familiar, but the LSAT and merit scholarship information was particularly interesting. Also some of the resources on the AccessLex website may be helpful to readers: Roadmap to Enrolling Diverse Law School Classes; Diversity Pipeline Research Grant information.
The third session led by Tiffane Cochran was on the importance of data (even for non-data persons) was good information on sources. The Technology Tour over the lunch period also provided addition information on websites that could be helpful for data. AccessLex's Analytix is just one of the databases discussed.
Rob Hunter's session on Raising the Bar was a good reminder for those of us in academic support and bar preparation and a good primer on the challenges for others in attendance. Remember that AccessLex is now providing the Raising the Bar newsletter that is a good resource for ASP/bar professionals.
The financial aid session that Lyssa Thaden presented was informative for context regarding our students' financial challenges. Although I had worked in financial aid a number of years ago, the landscape has changed greatly. I benefited from the information about the student loan ins and outs. You may want to visit the website to learn about the Max financial education program and its resources if you are unfamiliar with that extensive information and partnership.
If you have a chance, make sure you check out resources and events from AccessLex. Many of you will remember Sara Berman, our ASP/bar prep colleague for many years, who is now the Director for Programs for Academic and Bar Success at AccessLex. (Amy Jarmon)
Thursday, February 28, 2019
For those of you that just tackled the bar exam this week, here's a few words of congratulations and a couple of tips as you wait for bar exam results.
First, let me speak to you straight from my heart!
Bravo! Magnificent! Herculean!
Those are just some of the words that come to mind…words that you should be rightly speaking to yourself…because…they are true of you to the core!
But, for most of us right now, we just don’t quite feel super-human about the bar exam. Such accolades of self-talk are, frankly, just difficult to do. Rather, most of us just feel relief – plain and simple relief – that the bar exam is finally over and we have somehow survived.
That’s because very few of us, upon completion of the bar exam, feel like we have passed the bar exam. Most of us just don’t know. So now, the long “waiting” period begins with results not due out for a number of months.
So, here’s the conundrum about the “waiting” period:
Lot’s of well-meaning people will tell you that you have nothing to worry about; that they are sure that you passed the bar exam; and that the bar exam wasn’t that hard…really.
Not that hard?
You know that I passed?
There’s nothing for me to worry about?
Let me give you a concrete real life example...
Like you, I took the bar exam. And, like most of you, I had no idea at all whether I passed the bar exam. I was just so glad that it was finally over. But all of my friends, my legal employer (a judge), my former law professors, and my family kept telling me that I had absolutely nothing to be worried about; that I passed the bar exam; that I worked hard; that they knew that I could do it.
But, they didn’t know something secret about my bar exam experience. They didn’t know about my lunch on the first day of the bar exam.
At the risk of revealing a closely held secret, my first day of the bar exam actually started out on the right foot, so to speak. I was on time for the exam. In fact, I got to the convention center early enough to get a prime parking spot. Moreover, in preparation for my next big break (lunch), I had already cased out the nearest handy-dandy fast food restaurants for grabbing a quick bite to eat before the afternoon portion of the bar exam so that I would not miss the start of the afternoon session of the bar exam.
So, when lunch came, I was so excited to eat that I went straight to Burger King. I really wanted that “crown,” perhaps because I really didn’t understand many of the essay problems from the morning exam. But as I approached Burger King, the line was far out of the door. Impossibly out of the door. And, it didn’t get any better at McDonalds next door. I then faced the same conundrum at Wendy’s and then at Taco Bell.
Finally, I had to face up to cold hard facts.
I could either eat lunch or I could take the afternoon portion of the bar exam. But, I couldn’t do both. The lines were just too long. So, I was about to give up - as I had exhausted all of the local fast food outlets surrounding the convention center - when I luckily caught a glimpse of a possible solution to both lunch and making it back to the bar exam in time for the afternoon session – a liquor store. There was no line. Not a soul. I had the place to myself. So, I ran into the liquor store to grab my bar exam lunch: two Snicker’s bars. With plenty of time to now spare, I then leisurely made my way back to the bar exam on time for the start of the afternoon session.
But, here’s the rub:
All of my friends and family members (and even the judge that I was clerking for throughout the waiting period) were adamant that I had passed the bar exam. They just knew it!
But, they didn’t know that I ate lunch at the liquor store.
So when several months later the bar results were to become publicly available later that day, I went to work for my judge wondering what the judge might do when the truth came out – that I didn’t pass the bar exam because I didn’t pack a lunch to eat at the bar exam.
To be honest, I was completely stick to my stomach. But, I was stuck; I was at work and everyone believed in me. Then, later that morning while still at my work computer, the results came out. My heart raced, but my name just didn’t seem to be listed at all. No Scott Johns. And then, I realized that my official attorney name begins with William. I was looking at the wrong section of the Johns and Johnsons. My name was there! I had passed! I never told the judge my secret about my “snicker bar” lunch. I was just plain relieved that the bar exam “wait” was finally over.
That’s the problem with all of the helpful advice from our friends, employers, law professors, and family members during this waiting period. For all of us (or at least most of us), there was something unusual that happened during our bar exam. It didn’t seem to go perfectly. Quite frankly, we just don’t know if we indeed passed the bar exam.
So, here’s a few suggestions for your time right now with your friends, employers, law professors, and family members.
1. First, just let them know how you are feeling. Be open and frank. Share your thoughts with them along with your hopes and fears.
2. Second, give them a hearty thank you for all of the enriching support, encouragement, and steadfast faithfulness that they have shared with you as walked your way through law school and through this week’s bar exam. Perhaps send them a personal notecard. Or, make a quick phone call of thanks. Regardless of your particular method of communication, reach out to let them know out of the bottom of your heart that their support has been invaluable to you.
3. Finally, celebrate yourself, your achievement, and your true grit....by taking time out - right now - to appreciate the momentous accomplishment of undertaking a legal education, graduating from law school and tackling your bar exam.
You've done something great; something mightily significant! Congratulations to each of you! (Scott Johns).
Thursday, February 21, 2019
Next week, thousands will be headed to convention centers, etc., to show case the handy-work of their bar preparation efforts for the past two months. In preparation, bar takers have watched weeks of bar review lectures, worked hundreds and even thousands of bar exam problems, and created myriads of study tools, checklists, and flashcards.
Nevertheless, with one weekend to go, most of us feel like we aren't quite ready, like we don't really know enough, with all of the rules - to be honest - tangled and knotted up in a giant mess in our minds.
Yet, let me say this up front. Despite how most of us feel, this weekend is not the time to learn more law. Rather, it's time to reflect on what you've learned, to let it live in you, to give it presence within you. But, how do you do that?
Well, as I heard in a recent talk about medical education, I think we've got something important to learn from the medical schools that just might help with bar prep, too. You see, apparently, despite all of the massive amounts of information available from the learning scientists, the philosophy of training doctors boils down to just three very simple steps: "See it--Do it--Teach it."
Here's what that means for the upcoming bar prep weekend: For the past several months, you've been focused on "seeing it" and "doing it." You've been watching lectures, taking copious notes, reading outlines, and working problems. In short, you've been busily learning by seeing it and doing it.
But, for most of us, despite all of that work, we aren't quite sure (at all!) whether we are ready for the real bar exam because we haven't yet taken the last step necessary for cementing and solidifying our learning; namely, we haven't yet "taught it."
So, that's where this weekend comes in.
Throughout this weekend, grab hold of your notes or study tools or checklists or flashcards, pick out a subject, and teach it to someone. That someone can be real or imaginary; it can be even be your dog Fido. But, just like most teachers, get up out of your seat, out from behind your desk, and take 30 minutes per subject to teach it to that someone, from beginning to the end. Then, run through the next subject, and then the next subject, and then the next subject, etc. Even if you are by yourself, talk it out to teach it; be expressive; vocalize or even dance with it. Make motions with your hands. Use your fingers to indicate the number of elements and wave your arms to indicate the next step in the problem-solving process. Speak with expertise and confidence. And, don't worry about covering it all; rather, stick with just the big topics (the so-called "money ball" rules).
What does this look like in action? Well, here's an example:
"Let's see. Today, I am going to teach you a few handy steps on how to solve any contracts problem in a flash. The first thing to consider is what universe you're in. You see, as an initial consideration, there's the UCC that covers sales of goods (movable objects) while the common law covers all other subjects (like land or service contracts). That's step one. The next step is contract formation. That means that you'll have to figure out if there was mutual assent (offer and acceptance) and consideration. Let's walk through how you'll determine whether something is an offer...."
I remember when I first taught. I was hired at Colorado State University as a graduate teaching assistant to teach two classes of calculus. But, I had a problem; I had just graduated myself. So, I didn't really know if I knew the subject because I hadn't yet tried to teach it to someone. As you can imagine, boy was I ever scared! To be honest, I was petrified. Yet, before walking into class, I took time to talk out about my lesson plan for that very first class meeting. In short, I "pre-taught" my first class before I taught my first class. So, when I walked into the classroom, even though I still didn't quite feel ready (at all) to teach calculus students, I found myself walking in to class no longer as a student but as a teacher. In short, I started teaching. And, in that teaching, I learned the most important lesson about learning, namely, that when we can teach something we know something.
So, as you prepare for success on your bar exam next weekend, focus your work this weekend on teaching each subject to another person, whether imaginary or real. And, in the process, you'll start to see how it all comes to together. Best of luck on your bar exam! (Scott Johns).
February 21, 2019 in Advice, Bar Exam Issues, Bar Exam Preparation, Bar Exams, Encouragement & Inspiration, Exams - Studying, Learning Styles, Stress & Anxiety, Study Tips - General | Permalink | Comments (0)
Thursday, February 7, 2019
Recently, I heard a discussion suggesting that bar passers do things differently in the final two weeks than those who are not successful on the bar exam. That got me thinking about what I've been seeing, at least anecdotally, in my 10-plus years working with students in preparing for their bar exams.
First, both groups tend to work extraordinarily hard in the last two weeks before their bar exams. So, what's the difference? It must be in the type of work that the two groups are doing. In short, during the final two weeks, it seems to me that bar passers tend to ramp up their practice with lots and lots of MBE questions and essays [while also creating super-short compact homespun study tools (2-3-page outlines, flashcards, or posters)]. In contrast, people who find themselves unsuccessful tend to focus on creating extra-bulky study tools and trying to memorize those study tools with very little continued practice of MBE questions and essays. In brief, one group is continuing to practice for the exam and the other group is focused on memorizing for the exam.
But, here's the rub:
It’s a perfectly natural feeling during the final two weeks of bar prep to want to focus solely (or mostly) on creating perfect study tools and trying to perfectly memorize all the law.
But, according to the educational psychologists, there’s something called “useful forgetfulness.” You see, when we jam packet our study tools with everything, we aren’t learning much of anything because we haven’t had to make any hard decisions about what to let go (what to “forget”). We’re just typing or handwriting or flowcharting like a scribe. But, when we purposefully decide that we are only going to make a super-short “starter” study tools (knowing that we can always add more rules as we work through more questions during the next couple of weeks), our decisions about what to put in our super-short study tools (and what to leave out) means that we actually empower ourselves to know both what we put in our study tools (and what we left out).
As a suggestion, tackle two subjects per day – one subject that is essay-only and one subject tested on both the essay and the MBE exam. Starting with one subject in the morning, using the most compact outline that your commercial course provides (and referencing the table of contents for each subject), create a super-short study tool with the goal of completing your study tool in 2 hours or less.
Here’s a tip:
If you think that you need a rule, don’t put it in because you can always add more later. Instead, only add a rule that you’ve seen countless times over and over. Just get it done. Move quickly. Don’t get stuck with definitions of elements, etc. Stick with the big picture umbrella rules. Think BIG picture. For example, be determined to get through all of contracts in 2 hours (from what law governs to remedies). As a suggestion, have just one rule for each item in the table of contents for your commercial bar review outline. Don't go deep sea diving. Stay on the surface. Then, in the remainder of the morning, work with your study tool through a handful of practice essays. In the afternoon, repeat the same tasks using a different subject (creating a snappy study tool and working through a few essays). Finally, in the evening, work through mixed sets of MBE questions.
In the last week before the bar exam, with most of your starter study tools completed, focus on talking through your study tool (for about one hour or so) and then working through lots and lots essay problems and MBE questions. As you practice in the last week, feel free to add rules that come up in practice essays and MBE questions to your study tool. As I heard one person explain it, your study tool becomes sort of a "bar diary" of your adventurous travels through essays and MBE questions (thanks Prof. Micah Yarbrough!). In short, you've created a study tool that has been time-tested and polished through the hard knock experiences of working and learning through lots of bar exam hypothetical problems.
So, for those of you taking the February 2019 bar exam, focus on practice first and foremost because you aren't going to be tested on your study tool. Rather, you're going to be testing on whether you can use your study tool to solve hypothetical problems. And, good luck on your bar exam! (Scott Johns).
P.S. For those taking the Uniform Bar Exam, there are 12 subjects as grouped by the bar examiners (I think there are 14 subjects in California, depending on how you count subjects):
* Business Associations (Corporations, Agency, Partnership, and LLC)
* Secured Transactions
* Federal Civil Procedure
* Family Law
* Wills & Trusts
* Conflicts of Law
* Constitutional Law
* Criminal Law & Procedure
Friday, February 1, 2019
The ABA House of Delegates voted overwhelmingly against the proposed toughening of bar passage standards for ABA schools. The adverse impact on California law schools and on diversity were two reasons given for the defeat of the proposal. You can read about the vote in the post on Inside Higher Ed here.
Thursday, December 20, 2018
Congratulations December 2018 graduates! What a herculean achievement! Simply put, outstanding!
Nevertheless, I know that for many of you, right now it feels like a bit of a let down because you find yourself right back right back in the classroom as you prepare for your bar exam in February 2019.
That's exactly how I felt. Simply put, graduation felt a bit disingenuous as I had so much work left to be done to earn my law license. However, let me be frank. As you approach your bar studies, you are no longer a law student but a law school graduate. It may not feel like much of a difference, but its important to recognize - throughout these two months of your bar review learning - that you are a new person with a new professional identity, trained and well-seasoned to think through, analyze, and communicate solutions to vast arrays of legal scenarios.
Despite such remarkable progress as demonstrated by your law school graduation, many bar takers stumble in the first few weeks of bar prep, finding themselves increasing at odds with how to best learn and prepare themselves for the bar exam. I sure did. I spent much of the first few weeks trying to learn the law by, well, listening to professors talk about the law and watching professors talk about solving legal problems with the law. Big mistake! Cost me a lot of valuable time! That's why I write to you, dear law school graduate and now bar taker. Instead of focusing on learning the law, focus right from the get-go (i.e, that means right now, today!) on working through lots of practice problems each day. In short, I was, unfortunately, a "linear learner," as Professor Catherine Christopher says in her wonderful book entitled Tackling Texas Essays (Carolina Academic Press 2018): https://cap-press.com/books/
I. Linear Learning
Let me explain a bit about the difference between linear learning and recursive learning. As depicted by Professor Christopher in the diagram below from her book on successfully preparing for the bar exam , linear studying has a defined path. And, as a bonus, it sure looks nice and orderly, leading to the illusion of a direct straight-line path to success. Indeed, right now, many of you are focused (solely?) on watching videos, reviewing your notes, reading your commercial outlines, and making gigantic study tools. But, if you are like me, you aren't yet taking practice exams (or are only doing very few of them at the most).
Linear Learning (Professor Christopher 2018)
However, as explained by Professor Christopher, that's a big problem. Here's why. You'll end up spending most of the 8 - 10 week bar prep period doing very few practice problems, trying instead to master the law so perfectly so that you'll have enough confidence in the last few weeks to do well on practice problems. In short, you are afraid (I sure was!) to tackle practice problems because there's so much to know (and so many ways to make mistakes).
However, that's a big problem because it's in our mistakes that we learn best. We don't really learn by watching others. Who ever learned to play piano, play soccer, dance, or even litigate a case without practicing (which means "rehearing" and "acting out") what you hope to accomplish in the future with polish? No one prepares to become an expert without first being a novice.
But, as Professor Christopher comments, it feels really terrible, really terrible, to practice problems so early on because we make so many mistakes. But, if we delay practicing problems until the last few weeks possible, we make that practice much more of a high stake experience, in the words of Professor Christopher, such that there's no wiggle room for errors in our practicing experiences (so that there is no room for learning, either). In my opinion, linear studying leads to disappointment and frustration.
But, there's good news ahead, for those of you who engage in recursive learning.
II. Recursive Learning
Now here's a bit about recursive learning. As depicted in the diagram below from Professor Christopher's text, successfully preparing for the bar exam involves learning in a circular recursive process rather than a straight-line linear process.
Recursive Learning (Professor Christopher 2018)
As Professor Christopher explains, the first step - "reading and reviewing" - involves watching lectures, taking lectures notes, and reading outlines [about 4 hours or so per day].
But take note of second step in the circular process: "work to understand." That means that we get involved in the learning, we take center stage, so to speak, in our own learning by "work[ing] to understand the material" so that it becomes real to us. Just like learning a language, in which we start to start learning to speak and write a language by...speaking and writing a language! For bar takers, that means in this second stage that we make our own personal condensed notes or flashcards or other study tools to "help...get the information into [our] head[s]." (Here's a snappy suggestion: Just take hold of one (1) blank piece of paper, and, referencing your lecture notes in hand, write down, scribble, flowchart, and doodle the major take-aways from that day's lecture. Note: Don't let yourself get bogged down by trying to re-write your entire lecture notes; rather, focus only on big picture concepts because people pass the bar based on the big picture principles rather than the nitty picky details.). [about 1 hour or so per day].
The last step takes real bravery, discipline, and honesty too. And, it's vital for your learning. Start right away that very day, each day, by digging into actual bar exam questions, working through them one by one, using notes and outlines freely, and then reviewing practice answers afterwards to assess what went well along with concrete ways to improve with future practice problems. Here's a key tip for your practice sessions: Be super-curious when you miss a question; poke back around to the fact pattern - like a detective - to figure out whether you missed the question because you missed a rule or, more likely, you missed an important trigger fact in the fact pattern. So, for example, if you write a picture-perfect IRAC essay but then notice that the problem didn't involve that rule, go back and figure out where in the facts the correct rule was triggered. In short, don't just test yourself through practice problems but rather use the opportunity to learn through practice problems. [about 3 to 4 hours or so per day]. (Then, as illustrated by Professor Christopher's diagram, the next day we begin again with another bar review lecture.).
The great news is that throughout this process, while you might not feel like you are doing much learning, you are really dancing with the materials, making them your own, developing and finessing your critical reading, organizational, and writing skills. In short, you are productively on the path to successfully preparing for your bar exam.
So, in the midst of this bar review season, take courage. Indeed, be of good cheer, as the holiday saying goes, because true learning takes its shape in you - step by step - through the daily process of recursive learning - (1) reviewing, (2) working to understand, and (3) then testing yourself through practices problems. To be personal, I wish I had known this at the outset of my bar prep season. So, feel free to step out of the "line" and learn! Oh, and congratulations again on your graduation from law school! What a wonderfully momentous accomplishment! (Scott Johns).
December 20, 2018 in Advice, Bar Exam Issues, Bar Exam Preparation, Bar Exams, Encouragement & Inspiration, Exams - Studying, Learning Styles, Stress & Anxiety, Study Tips - General | Permalink | Comments (0)
Sunday, November 25, 2018
Invitation from NCBE
The National Conference of Bar Examiners requests your assistance with a significant research study regarding the bar examination. NCBE has created a Testing Task Force to oversee a comprehensive, future-focused research study of the bar examination, and we want and need to tap the insights of legal academics. We would like to invite you to participate in one of six focus group sessions held at the AALS Annual Meeting in New Orleans on January 3 and 4, 2019.
The Task Force is approaching its study with no preconceived notions and is considering the content, format, timing, and delivery methods for the bar exam to ensure it keeps pace with a changing legal profession. For more information about the study, please read the overview of our research plan at www.testingtaskforce.org/research/.
As a legal educator, you are a vital part of the legal licensure process, and gathering input from you and other stakeholders is an essential component of the study. We hope you are as eager to share your ideas and opinions about the bar exam of the future as we are to hear them! The focus group sessions will be facilitated by one of the Testing Task Force’s independent research consulting firms, ACS Ventures LLC. The number of participants will be capped at 12-15 people per 90-minute session to ensure that everyone has an opportunity to provide their input, so you are encouraged to register early to reserve your spot in a session.
To sign up for a focus group session at the AALS Annual Meeting, complete this online registration form. You’ll receive a confirmation with logistical details and additional information about the session by email.
NCBE and its Testing Task Force are committed to creating additional opportunities for focus groups and web-based interactions to gain insights from legal academics, law students, and other stakeholders in the next six months. Subscribe at the Testing Task Force’s website to receive updates about the study and to be notified about other opportunities to participate.
Thank you for all you do to help prepare law students to become lawyers. If you have questions, please feel free to contact the Testing Task Force at email@example.com. We look forward to hearing from you!
Thursday, October 25, 2018
My dog loves rabbit trails. Luckily for the rabbits, at least thus far, the trails have never led to rabbits.
That got me thinking about exam writing and rabbit trails.
But first, a bit of background...
I find that most bar exam takers who do not pass the bar exam write brilliantly well-organized professional essay answers. The rules are crisp; the IRAC is polished. But, in most cases, some of the answers are unresponsive to the fact patterns at hand. In other words, its as though the fact patterns were irrelevant to answering some of the particular essay questions. Instead of finding the "rabbits" in the essays, they followed "rabbit trails" leading to no where. And, it's often that way on law school exams too.
Take this summer's first essay question on the Uniform Bar Exam (UBE), available free-of-charge at https://www.ncbex.org/July2018Essays.
The fact problem was set in the world of constitutional law. As specified in the fact problem, the essay expressly indicated that US Supreme Court had recently found that Congress was within its power under the interstate commerce clause (ICC) to punish marijuana use. On the other hand, the fact problem indicated that a number of states were (and have) legalized marijuana use both for medicinal purposes and recreational purposes.
Frustrated by state decriminalization of marijuana, the fact pattern specified that Congress enacted a federal drug abuse prevention statute. Pertinent to the essay problem, one section of the statute required state law enforcement officers to investigate whether anyone within their custody, even on matters unrelated to controlled substance violations, was under the influence of marijuana and then make reports to the federal government. The other section of the statute, as specified in the fact pattern, provided that Congress would restrict federal law enforcement grants to states which decriminalized marijuana use. The fact pattern went on to indicate that a State had recently decriminalized marijuana use and would therefore be subject to a loss of approximately $10 million dollars in annual federal grant money out of a state budget of about $600 million total of state law enforcement spending. Based on this fact pattern, bar exam applicants were told to analyze whether each of these two statutes were constitutional as applied to this particular state's situation.
Let's deal with the first statutory section - the federal requirement ordering state law enforcement officers to conduct investigations and make reports. The key to figuring out where to go, i.e., to avoid the "rabbit trail," was to write out a good issue statement, perhaps as follows:
"The issue is whether Congress had constitutional authority when it requires state law enforcement officers to conduct investigations and make reports unrelated to state law enforcement purposes."
In this fact pattern, there's no issue that Congress did not have the commerce clause power because the fact pattern foreclosed that issue, once and for all, with its initial recognition of US Supreme Court precedent specifying that Congress had the power to regulate marijuana use. And, if Congress has the power to regulate marijuana use, it certainly has powers related to that under the "necessary and proper" clause. So, the focus must be elsewhere in answering this problem. As the issue statement makes clear, it's a federalism issue, namely, whether Congress can force states to do the work of the federal government. That's a 10th Amendment issue. In brief, Congress is limited in its ability to commandeer the states, which is precisely what this first section tries to do. It's unconstitutional, at least in my reading of it.
Let's take on the second statutory section - the federal spending restriction of law enforcement grants towards states that decriminalize marijuana. Once again, the key is to start with a sharp issue to avoid the "rabbit trails." Here, we might write as follows:
"The issue is whether Congress had constitutional authority when - as applied to the state at hand in this fact pattern - Congress cut off a federal law enforcement grant in the amount of $10 million out of a state budget of $600 million in state law enforcement spending."
Do you see the issue? It's lurking in the facts stated in the issue statement. Once again, this is a federalism issue. There's no issue that Congress can't spend money for the public welfare, particularly because the state in this fact pattern wants to receive the federal grant money. Rather, the issue is whether these "strings" constitute commandeering of the states by Congress in violation of the 10th Amendment. One could probably come out either way, but I think that the better answer based on Supreme Court precedent is that spending restrictions to encourage states to enact policies and law that comport with federal law are constitutional as long as states have a real choice as to whether to enact new favorable state laws to the federal government or give up the spending grants. In this fact pattern, the amount of money that the state will lose as a result of decriminalization of marijuana is only a small percentage of the entire amount that the state spends on law enforcement, which means that the state has a real meaningful choice to take the federal grant and comply with federal objectives or to refuse the federal grant and still have significant state law enforcement funding. It's constitutional, at least in my analysis.
Despite the fact that this essay problem was centered on federalism issues based on the 10th Amendment, a number of people talked about the commerce clause or equal protection concerns, neither of which were raised by the fact pattern. I can understand why. Bar takers have memorized so much law that they tend to put all of the law that they can think of without thinking through the problem first of all, especially because of the time pressures. But, I have a tip that can help preempt that sort of "rule dump." It's writing out an old-fashioned legal writing issue statement before beginning to write.
Here's what I mean by an old-fashioned issue statement. As set out by Ruta Stropus and Charlotte Taylor in their book "Bridging the Gap Between College and Law School," a great issue statement can take on the form as follows:
"The issue is whether [legal subject-verb-object] + when + [material facts]."
Take a look back at my issue statements. Do I start with the legal issue? Do I have the legal actor as a noun, a verb, and the legal object, here, as to the unconstitutionality of congressional action? Do I then add in a handful of hand-picked material facts from the fact pattern? You bet. In my own case, if I don't take time to work through crafting such an issue statement, I'm lost in most essay problems. I just start writing in circles, moving around in "rabbit trails" so to speak, without really understanding the fact pattern at hand or the questions presented in the essay scenario. In short, I ramble.
So, whether you are a bar taker or a law student preparing for mid-term exams, take a pause before you begin to write out your essays. Hunt for some "red hot" material facts to put down in paper as an issue statement. After all, it's what lawyers do best; they spot issues, the precise issues that are needed for solving their clients' problems. So, as you learn to think like a lawyer, practice like a lawyer too by taking time out to craft, identify, and precisely specify the exact issues posed in your midterms, final exams, or your bar exam essays. It's worth the time. Indeed, you'll be mighty glad because you'll find that you'll avoid the "rabbit trails" found on most essay exams and instead you'll be finding the rabbits themselves. (Scott Johns).
Sunday, October 14, 2018
Have you seen the new publication from AccessLex Institute titled Raising the Bar? The first issue includes a mix of articles on conferences, publications, tips, grant information, resources, program profiles, and more. If you missed the first issue, the link is here. (Amy Jarmon)
Thursday, October 11, 2018
It's that time of year. In the midst of many celebrations over bar passage, let's be frank.
There are many that are not celebrating. Their names were not on the list of bar exam passers. And, for some, it's not the first time that they've found themselves in this situation; it's a repeat of the last time around.
For aspiring attorneys that did not pass the bar exam, most don't know where to turn. Often embarrassed, many with significant debt loads, most feel abandoned by their schools, their friends, and their colleagues. All alone.
I'm not expert in helping with turnarounds. But, I'd like to offer a few tips that have proven quite helpful in helping repeaters change history to become "fresh start" bar passers:
First, as academic support professionals, reach out to each one. Make yourself available on their terms. Let them know that you care. Let them know that you are mighty proud of them, success or not. Support them, one and all.
Second, give them breathing room, lot's of time and space to grieve. Don't push them into diving back into the books. Don't lecture them. Rather, assure them that they don't need to get cranking on their studies. Help them to be kind to themselves. It's not a matter of just hitting the books again, and this time, doubly-hard. Instead, they need to take time out to just be themselves.
Third, when they are ready, set up a "one-with-one." Notice: I did not call it a "one-to-one". Rather, set up an appointment or meeting in a place of their choosing at a time that works for them in which you sit side by side, on the same side of the table or desk or cafe. They are not bar exam failures; they are real law school graduates. They earned their parchments. So, listen to them as colleagues on the same side of doing battle on the bar exam. Let them talk and express themselves as they'd like. Hear them out. How are they feeling? What went right? What's their passion? What saddens their hearts?
Finally, whey they are ready, make a copy of one of the essay problems that didn't go so well. Better yet, make two copies, one for each of you! That's because you are on the same team. Set aside 15 or 20 minutes and just ask them to mark up the question, brainstorm what they are thinking, and jot down the issues that they see. But...and this is important...tell them that you don't expect them to remember any law at all. Period. And, you do the same. Exactly the same. Don't peek at an answer key or even their answer. Instead, try your hand too; wrestle with the same question that they are wrestling with. Then, come back together to listen, ponder, and share what you both see as the plot of the essay question, the issues raised by the storylines, and the potential rules that might be in play. Once you've done all this prep work together, now, look at their answer. This is important, just look. Ask them what do they see? What do they observe? What went great for them? Where might they improve? In short, let them see that they have "inside information" about themselves based on their own personal bar exam experience and answers that they can capitalize to their advantage. Most often in the midst of working together, graduates tell me that they realize that they knew plenty of law to pass the bar exam. In fact, most are amazed at how well they memorized the law. And, that's great news because it means that they don't need to redo the bar review lectures at all. They know plenty of law. That frees up lots of time during the bar prep season to instead concentrate on just two (2) active learning tasks.
So, here are the two activities that bar re-takers should be prioritizing to successful pass the bar exam:
1. First, they should work daily throughout the bar study period through lots and lots of practice problems (essays and MBE questions). Every one that they can get their hands on. Open book is fine. It's even better than fine; it's perfect because they should be practicing problems to learn because we don't get better at problem-solving by guessing.
2. Second, they should keep a daily "journal" of the issues and rules that they missed when working over problems (to include tips about the analysis of those rules).
Just two steps. That's it. There's no magic. But, in not redoing the lectures, graduates will find that they have plenty of time to concentrate on what is really important - learning by doing through active reflective daily practice. Countless times, it's through this process of a "one-with-one" meeting that we have seen repeaters turn themselves into "fresh start" bar passers.
Finally, I want to write directly to those of you who find yourself in the situation of having to re-take the bar exam. You really aren't alone. Need proof? Here's a short video clip put together by the Colorado Supreme Court about re-taking the bar exam to include a few tips from some jurists and practitioners that have been in your shoes. (Scott Johns)