Sunday, May 31, 2020
COVID-19 continues to cause problems throughout the US. I don't want to minimize others' struggles, but the effect on the bar exam is still yet to be determined. Some states' postponement until September should help social distancing to keep students safe, but will it decrease MBE scores for July takers?
The MBE is scaled based on anchor questions. Anchor questions are questions that are used across multiple tests. The NCBE won't state how many anchor questions are on the 200 question test, even when directly asked at their conference for law schools. My best estimate is between 50 and 60 questions are anchor questions. Anchor questions help produce scaled MBE scores. Scaling attempts to ensure a score in one year is equivalent to the same score in other years. A basic explanation of scaling is the NCBE compares the scores of current takers as a whole on the anchor questions to previous years. They then conclude whether the group of takers is stronger or weaker than previous years. The MBE is then graded as a whole considering how the takers as a whole did on the full exam compared to previous years. The process determines the difficulty of the test and produces the scale.
The scaling process makes assumptions about the candidate pool based on scores on the anchor questions. With numerous bar exams postponed to September, the question becomes whether the different candidate pool will change the assumption about the quality of takers.
I think the clear answer is yes, scores will be effected, and the scores will be lower. 9 out of the top 11 and 21 of the top 31 US News Ranked Law Schools are located in states postponing the bar exam. I will acknowledge that US News Rankings are a poor way to rate schools. However, the reliance on the LSAT has relevance here. The NCBE states the LSAT correlates to MBE scores (they gave the precise relationship at the aforementioned conference for law schools). If students with the highest LSAT scores are not taking the exam until September, the July takers will appear to be weaker than previous years. Even if those same postponing states include students with low scores (ie - California with non-ABA school takers), the pool itself will not have the outlier high MBE scores. The risk is significant that scores will be effected merely by the applicant pool.
The NCBE may correct for this phenomenon. They could wait until after the September exam to score the test. They could have information that those states would not affect the general average of the pool. However, the NCBE is so opaque that we have no idea what they plan to do to correct for the potential problem. They could have supported any number of alternatives to the bar exam and MBE this summer. They chose to stand by the current bar exam in a pandemic when even the most basic understanding of scaling raises serious concerns about scores on the July exam. I would call on examinees to demand answers, but I witnessed numerous student groups around the country be completely ignored by state bars. Now is the time for Supreme Courts to begin understanding the mechanics of the bar and demand more from the NCBE. As of now, I truly believe some July takers will be unsuccessful solely based on NCBE practices and not competency to practice law.
Thursday, May 28, 2020
That might be an overreach. But not by much. I only witnessed - at the most - 3 different flowers along the nearby hiking trail. Another hiker, who I met along the way, exploded with joy that she had spotted 44 different flowers along the same identical path, many of which were rarely seen during the short Colorado spring season. Same path; different eyes.
That experience left me wondering what else I am missing in this journey of life. Much, I suspect. Especially in these times with much of my face hidden behind a bandana. You see, I had a different purpose in mind on the hiking trail. And that resulted in a different pace and a much different outcome.
My fellow hiker's words hit home with respect to bar prep. Much of the colloquial wisdom is to practice testing yourself, constantly, as you prepare for your bar exam. Watch the clock, and my oh my, certainly don't take a timeout to research a bit of law when you are stumped. But, if in your bar prep you are driven by working the clock, you'll miss much. And what you miss is the opportunity to learn to improve critical reading and problem-solving skills because developing those skills takes lots of time and concentration - just like my fellow hiker spotting 44 flowers in beautiful bloom along the trail.
Let me share a secret. Rare is it that people run out of time on the bar exam. Oh it happens. But it's not because they didn't practice with the clock. Rather, it's often because the gambled with proven strategies to tackle their bar exams. They grabbed hold of the essays and then spent precious time looking for their favorites. Or, they hit the multiple-choice bubbling along the way while leaving many answer choices blank, with a long list of questions that they'd like to come back to, in the event that they have more time left at the end. On the bar exam, you don't have time to look at questions twice (or even more). Rather, just solve them one-at-a-time as they appear in the materials.
I know, you're saying, "Well, how am I going to get faster if I don't practice with the clock?" I'm not saying never practice with the clock, but the time to do so is much later, mostly only with mock bar exams, and mostly only in the last two weeks or so. In my experience, if you work on getting faster, you'll be super-fast but also often super-wrong because you haven't worked on seeing the patterns and observing the commas, the phrases, and the many nuances that are the heart of doing well on the bar exams.
Let me make it concrete. I have never seen a person fail the bar exam because they didn't know enough law or weren't really speedy enough. Rather, when people do not pass the bar exam, they tend to write about issues that weren't asked by the problems. That's because they worked mostly for speed through as many problems with goal of constantly testing themselves. "Am I passing yet? Is that good enough? I've got to get up that trail, so to speak, as fast as possible."
Instead, let go of the clock. Spend time in the midst of the problems. Question the questions. Puzzle over them. Ponder and probe the language, the phraseology, the paragraph breaks, and the format of the questions. In short, for the first six weeks of bar prep, practicing problems to learn with just an occasional check-in mock bar exam to see how you are doing. That way you'll be sure to see what's hidden in plain sight. And, that's the key to doing well on the bar exam. To locate and expose, what one of my recent students brilliantly called the "undertones" of the problems...that are really in plain sight...if only we take the time to learn to see.
(Scott Johns - University of Denver).
Wednesday, May 20, 2020
The AALS Section on Academic Support is pleased to announce a 2020 “Final Fridays” Summer Webinar Series. The webinars will be held on the final Friday of May, June, and July. The first webinar—to be held on Friday, May 29—is titled “Supporting Bar Exam Takers.” On June 26 we will discuss “Supporting Each Other and Ourselves.” Then, on July 31, we will turn our attention to “Supporting our New and Returning Students this Fall.”
Registration is free and open to all. The webinars will also be available for on-demand viewing later, via the members-only section of the AALS Section on Academic Support webpage. The benefit of participating live is the ability to ask questions of our panelists and to engage in the breakout sessions.
On Friday, May 29 at 1:00 EST, panelists Antonia Miceli (Saint Louis), Britany Raposa (Roger Williams), and Joni Wiredu (American) will provide suggestions on how ASP’ers can support both July and September studiers simultaneously this summer. Kirsha Trychta (West Virginia) will moderate. In addition to multiple exam dates, the pandemic has created several other unique and novel challenges for bar takers this year. Following the 60-minute panel presentation, attendees will have the option to participate in one of three breakout sessions:
- Social distancing measures during the bar exam, including mandatory quarantines
- Limited seating and priority seating concerns
- Limited licensure and diploma privilege options
Each breakout session will be a roundtable discussion engaging all session attendees. To attend the May panel presentation and/or breakout sessions, follow the Zoom invitations below Additional invitations for June and July will be sent later.
The AALS Section on Academic Support Executive Board
Chair Jamie A. Kleppetsch, DePaul University College of Law
Chair-Elect Melissa Hale, Loyola University Chicago School of Law
Secretary Kirsha Weyandt Trychta, West Virginia University College of Law
Treasurer Joe Buffington, Albany Law School
Committee Member Afton R. Cavanaugh, St. Mary's University of San Antonio School of Law
Committee Member Maryann Herman, Duquesne University School of Law
Committee Member Zoe E. Niesel, St. Mary's University of San Antonio School of Law
Committee Member Herbert N. Ramy, Suffolk University Law School
AALS Webinar Series Zoom Invitations
“Supporting Bar Exam Takers on Multiple Timelines”
May 29, 2020
1:00 – 3:00 p.m. EST
Join Panel Presentation
Meeting ID: 928 8533 0059
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Join Breakout A: Social Distancing Measures
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Join Breakout B: Limited Seating and Priority Seating
Meeting ID: 985 7952 4155
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Join Breakout C: Limited Licensure
Meeting ID: 910 4928 6166
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Tuesday, May 19, 2020
In a normal year, my students would all have begun their bar preparation yesterday, coasting on their post-graduation-ceremony momentum right into a seat in front of the first of many lecturers. But in New York, and more than a third of all U.S. jurisdictions (in which -- again, in a normal year -- more than half of all July examinees would be sitting for the exam), the date of the bar examination has been postponed for six weeks or more, leaving bar students in those jurisdictions with the gift they hate most of all: uncertainty.
What is to be done with all this extra time? Bar preparation companies cannot agree: some are simply administering their typical ten-week program, just starting it six weeks later than usual, while others have reworked their program schedule, starting it earlier and drawing it out over a longer period, but with shorter study days. Employers, many contending with their own virus-induced crises, have added variables to the new graduates' calculations, some allowing their new employees to start early and then take time off, others expecting hirees to adhere to their original early-August start dates, and still others unnervingly withdrawing their employment offers indefinitely. Even we bar support specialists can only make well-educated guesses about how to make use of six extra weeks. We have no data, no direct experience of how a delay like this will affect individual students or the testing cohort as a whole. How much more study can a student put in without burning out? Should the extra time be spread across all aspects of bar study, or should certain skills or subjects receive more attention? Will MBE scores increase overall for those who take the test in September? Decrease? Will the bell curve spread out? Will this hurt or help examinees?
Sensibly, 43 more days of prep time should be seen as a boon. In a normal year for bar study, isn't time the most precious resource of all? In my discussions with students, I have suggested they think of this extra time the way they might think of an unexpected financial windfall. You don't have to spend it all in one place. You might devote a large chunk of it to bar study -- that is, after all, the primary focus of the summer -- but how you specifically budget it depends on your own circumstances. An examinee facing financial pressures might choose to work for a few weeks, then begin studying a few weeks early. Someone eager to get started studying might begin this week, but set aside a week or two, at strategically placed spots on the calendar, to put study aside, connect with family and friends, or do whatever else helps them refill their gas tank. It's important not to let the time slip by unnoticed -- it would be bad to turn off the TV one night near the end of June and realize you had not done any bar study -- and that's why it's important to budget the time and actually create a schedule. And that, for some, is what seems to turn this temporal windfall into a vexation. In order to budget, you have to make choices.
No one wants their bar prep period to feel like playing endless rounds of "The Lady or the Tiger?" At every step: choose the right path, and you will be rewarded with contented knowledge and testing skills; choose the wrong path, and you will be mauled by a ravenous UBE with MPT fangs and MBE claws. In a normal year, examinees only have to be certain that the regimented bar study course they have chosen, which has worked for thousands of examinees before them, will continue to reliably work for them. This summer, though, because so much is unregimented, some examinees are anxious about being uncertain about so much more. Am I studying enough? Am I studying too much? Am I studying too early? Am I studying the right things, in the right way, for the right amount of time?
Two propositions can help people in such a tizzy of uncertainty. First, assure them that they are not feeling this uncertainty because of some character flaw that prevents them from making definitive choices. They are not losing their heads while all about them are keeping theirs. This is an inherently uncertain situation -- we can't even be assured the exam will actually be administered in September! -- and so there is no single "correct" choice. The best they can do is what they've been training to do for the past three years: exercise good judgment based on competent authority and relevant facts. As long as they are not just guessing, as long as they are talking to us and their mentors and their instructors and applying what they learn to what they already know about themselves and the task before them, they can at least make a good choice.
Second, help them subdue the perception that they are overwhelmed by uncertainty by reminding them of what is certain. The content and structure of the bar examination remains the same (well, except in Indiana), as do generally those of the reputable bar courses designed to prepare examinees for the test. They still have their law degrees, and the skill, intelligence, and diligence that helped them earn those degrees. They have a community of classmates, instructors, and mentors who they can rely on to share perspective and feedback on the decisions they do make. They have a certain task, they have certain abilities, and they have certain resources. In the face of uncertainty, those are best certainties to have.
Thursday, May 14, 2020
It's in the moments of fiery crises that heroism is revealed.
I think of our students, heroes everyone of them, finding within the resiliency and creativity to successfully adapt to online learning. I think of the academic support community and law school faculty and staff, springing into action, resolutely empowering novel ways to encourage vibrant learning despite the difficulties. I think of the many workers - across all walks of life - giving of themselves, in the front lines all of them.
It's in these hard spots of life, the difficulties and trials, in which our true beings are revealed, unmasked so to speak.
But there's more unmasking to be done. And quickly too. That's because many of our students have just finished their law school studies and are ready to graduate. Ready to move onto the next step. Ready to serve and contribute to the world.
Yet many states are postponing bar exams with no certainty that latter dates will be any better - health-wise - for holding in-person bar exams.
However that's not the situation that's just been decided by the Indiana Supreme Court. Indiana is moving forward this July 2020 with a one-day online bar exam. And it looks like Nevada might be joining the movement to an online exam too. And one state, Utah, has taken an even bolder approach in implementing an emergency diploma privilege. https://www.law.com/2020/05/08/in-a-first-indiana-will-hold-one-day-online-bar-exam-in-july/?slreturn=20200414232636; https://www.nvbar.org/nevada-supreme-court-seeks-comments-by-may-14-re-modification-to-july-bar-exam/
Nevertheless, back in April in a white paper, the National Conference of Bar Examiners (NCBE) brushed aside the possibility of online exams or diploma privilege, arguing that online exams were unworkable and that the diploma privilege was not beneficial to the public good. http://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F239.
When I applied to law school (and for the bar exam), there were no online applications. It just couldn't be done. But oh how times change, if only we are willing, courageous, and creative. Now, I doubt one can apply for law school save through an online application. The same goes, I suspect, for most bar exam applications. It's all online now. Except for the bar exam itself.
The only thing that limits us to the present is us.
It's not too late for New York, or California, or any other jurisdiction to implement a one-day online bar exam this July.
But that takes removing the masks that so often keep us living in the present, forever failing to see the future. And, to be honest, living in the present, when the present of the past no longer exists due to COVID-19, is not really living in the present. It's living behind the mask of the past.
The next step is for you - state supreme courts and jurists. We would like join with you, and local and state bar associations and practitioners, to move forward thus summer, whether that's with an online bar exam or with diploma privilege. The choice is yours. (Scott Johns).
Wednesday, May 13, 2020
Hello everyone, I was asked to share the letter below with you all. it's from AASE, regarding Standard 316. A pdf copy will also be on the AASE website soon.
Re: Association of Academic Support Educators Position on ABA Standard 316
Respected Members of the Council:
On behalf of the Association of Academic Support Educators (“AASE”), we are writing to join
the Society for American Law Teachers (“SALT”) in requesting that the Council suspend
enforcement of ABA Standard 316 (concerning ultimate bar passage). AASE is a non-profit
organization made up of nearly 300 academic support professionals from more than 180 law
schools in the United States and Canada. Our mission is to foster and promote the professional
development of our members and to encourage research-based teaching methods so our
members can help law students reach their full potential—including graduating, passing the bar
exam, and practicing law.
For the reasons stated below, we believe the Council should suspend temporarily the
enforcement of ABA Standard 316. ABA Standard 316 requires “at least 75 percent of a law
school’s graduates in a calendar year who sat for a bar examination must have passed a bar
examination administered within two years of their date of graduation.” As a graduate’s bar
passage from any state applies towards that school’s ultimate bar passage rate, Standard 316
presumes and relies upon stable, predictable, and regular administrations of the bar exam in all
jurisdictions. And it presumes, at the very least, that law graduates will have prepared for the
bar exam under stable, predictable, and normal study conditions. Due to the advent of the
COVID-19 global health crisis, these presumptions could be no further from reality.
The COVID-19 pandemic has thoroughly disrupted and destabilized the established semiannual
administration of the bar exam throughout the United States. Many, if not most,
jurisdictions already have conceded that regular administration of the July 2020 exam is no
longer possible and have delayed administration of the exam. Moreover, given the uncertainties
surrounding recovery from this health crisis, normal administration of the September 2020
(rescheduled), February 2021, and even the July 2021 exams may be equally unlikely.
In addition to the cancellation or rescheduling of 2020 exam administrations, some states also
have adopted rules that will prioritize who may and may not take the exam, using geographic
location of the candidate’s law school or their state of residency. A few states allow examinees
to select one of two available dates, other states will divide their bar applicants into two
disparate settings spaced five weeks apart. These first-come first-served rules, or lottery-style
selection processes, adds to the growing uncertainty and anxiety that has become associated
with July 2020 bar exam. In addition to the anxiety this creates, the timelines also may present
financial hardship to many recent law graduates, making it even more difficult for at-risk
graduates to pass the bar exam. The Council should take into account that the constantlyshifting
bar exam landscape—this force majeure—will make it difficult for students to prepare
and perform as effectively as they otherwise might. So much of a graduate’s bar exam
performance is out of their control. The same is true for law schools.
AASE’s members, who have dedicated themselves to assist law students and recent law school
graduates in preparing for the bar exam, likewise are struggling to advise students in light of the
mounting uncertainty. We cannot advise students when to begin bar preparations because
neither we nor our students knows decisively whether they will sit for an exam in July or
September. We cannot advise our students how to prepare for the bar exam because some states
will offer the exam in a shortened or online format that we have not seen. Some states have
advised only that the exam will be held in September online but have not provided any
guidance on what that exam will entail. Due to the lottery-style bar rules, many graduates may
not even know where they are taking the exam. And most concerning, we cannot advise our
students as to what they can do to mitigate the risk of being exposed to the coronavirus during
an in-person exam administration.
In light of these concerns, the most reasonable approach is for the Council to suspend Standard
316 to account for this unprecedented situation that adversely impacts every planned 2020 bar
taker as well as the faculty members and academic support professionals who support them.
While we respect the Council’s desire to ensure that law schools are in fact producing graduates
capable of passing a bar exam, it is unreasonable to impose the same standard for bar passage in
an environment completely unlike any seen in our lifetimes.
We endorse SALT’s position that law graduates will have faced unprecedented challenges in
the months leading up to the exam and that, in this climate, overall bar passage rates will bear
little relation to the quality of the graduates or their respective law schools. Instead, bar passage
rates will reflect the impact that COVID-19 disruptions had on the bar takers individually and in
the aggregate. For example, while the impact will be widespread, it is likely to be more acute
for particular geographic regions hit hardest by the virus, including California, Illinois,
Massachusetts, New York, and Washington, states with disproportionately high numbers of law
schools and prospective bar takers. In addition, early data seem to show that the virus has a
greater impact on people of color. Law schools with higher percentages of graduates
disproportionately affected for whatever reason would be unfairly measured by Standard 316
without a suspension of the rule.
We also find compelling SALT’s proposition that temporary suspension of Standard 316 is
consistent with the determination made by many law school faculties throughout the country
that adjusted their traditional grading rules this Spring 2020 due to the pandemic. (As you
know, many law schools moved to pass/fail grades or significantly more lenient grading
As academic support educators, we take seriously the calling to produce law school graduates
capable of passing a bar exam. It is core to our professional mission. As lawyers, parents,
grandparents, grandchildren, and global citizens we also recognize the serious threat that, under
the current circumstances, bar passage scores for 2020 will not measure accurately the quality
of bar takers or their academic institutions.
For these reasons, we call upon the Council to suspend enforcement of Standard 316 through
the 2022 reporting period.
Submitted on behalf of the Association of Academic Support Educators by
Antonia Miceli Marsha Griggs
President Bar Advocacy Chair
DeShun Harris, President-Elect
Russell McClain, Past President
Marla Dickerson, Vice President of Diversity
Jeff Minneti, Treasurer
Twinette Johnson, Treasurer-Elect
Danielle Kocal, Secretary
Joni Wiredu, Host School Representative
Zoe Niesel, Host School Representative-Elect
cc: William E. Adams, Managing Director
Sunday, May 10, 2020
First, I want to Congratulate all law students for finishing this semester. I know some still have finals this week, but you all endured a complete change in educational environment. You worked hard through the disruption, and your resiliency will pay off preparing for the bar exam and the practice of law. I pray that you all stayed healthy and safe.
For 3Ls, you are moving from difficult end of the semester to even more difficult bar prep. Many of you will be worried and overwhelmed. Those feelings are understandable in a normal year. Some of you must wait to take the exam, while others will still take it at the end of July. The feelings and planning will cause some people to overlook the small details. I want to reiterate a common piece of advice that may be even more important this year. Practice tests should simulate exam conditions.
The advice seems obvious, but this year is different. I tell students to set a timer or put a clock on the wall similar to the bar exam. The numbers counting down cause adrenaline spikes, and I want students to feel that while practicing. This year, the exam may have other precautions. Some states will social distance with people spread far apart. That will be hard to simulate with schools closed, so if you can, have loved ones, kids, or people within the house sit 8 feet away. They can be unintentionally fidgety for the duration of the test. Make them take a silly test of their own. Some states may require masks during the exam. You don't want the first time taking a test with a mask on to be the day of the bar exam. Some masks are comfortable for the grocery store, but remember, you will be wearing the mask for 8-10 hours 2 days in a row. The elastic band mask may not be comfortable for that long. You may want a mask that ties or one of the plastic S hooks for masks. I suggest wearing one while answering practice questions. At first, you will be annoyed. After a while, it won't bother you. This is similar to don't practice until you get it right, practice until you can't get it wrong. Keep wearing the mask until you don't really know it is there.
This has been difficult. I hope all of your conditions permit quality studying for the bar. Good luck to all bar takers in both July and September.
Thursday, May 7, 2020
I once had a teacher tell me to never read good books. Never ever. And why not?
Because if I spent my time reading good books (or doing good things), then I wouldn't have time left to read the really great books (or do the really great things of life).
That's a lesson that has never left my side.
In bar prep, I'm convinced that too many are trying to do too much, and, in the process of doing good tasks, they aren't doing the great things that are really important for success on the bar exam. Let me be frank. You don't have time in bar prep to do good things. But, you have plenty of time to do the really great things, the things that produce fruitful learning.
With that in mind, here's a few tips:
- Do less reading and more pondering the law, how it works or doesn't, and what it means to you as a person.
- Do less note-taking and more puzzling through problems to learn the law.
- Do less testing and more practicing, feeling free to work problems over slowly, reading them out loud if you'd like, as you develop confidence and competence in your own voice as an expert problem-solver.
That's just a few suggestions.
But, rather than hear it from me, a teacher, I thought I'd share the wisdom of a recent successful bar-taker in that person's own words. After all, they say that a picture is worth a thousand words (but the wise words from the heart & mind of a recent bar taker -- who wants to share with YOU what she/he learned through re-taking the bar exam -- is worth a priceless fortune).
Advice for First-Time Bar Takers:
- Practice way more than you think! If you are wondering whether you should watch a lecture or do a practice question, do the practice question.
- Let go of memorizing everything. It is impossible. Learn what your weak areas are and spend more time with those subjects.
- You will feel like you know nothing until approximately the last week of bar prep. Somehow, magically, it does come together. I promise.
- Do all the bar prep practice tests.
- Think really hard about who you want to study with. This is not the time to do something different from how you handled law school.
- Come up with a plan and stick to it. The bar prep calendar is really helpful for this. Decide how many practice questions you want to do everyday and do it. But if you are starting to burn out, be OK with taking breaks. It's a marathon!
Advice for Fresh Start Re-Takers:
- First, I am so sorry that you have been dealt this card. There is no question that it hurts. Take care of yourself and do things that make you happy.
- As you begin planning your next round of bar prep, make sure to work with the law school to identify the weak aspects of your exam answers. This will help define ways you can “work smarter” instead of “work harder.”
- Also work with the law school to identify new ways to study. It might be changing up your study tool or how you review your answers. For me, studying ALONE the second round vastly improved my scores. I think studying alone boosted my confidence because it required me to look up answers to my own mistakes. I also stopped comparing myself to friends.
- Ditch the bar prep lectures. Use that time to practice WAY MORE MBE and MEE practice questions. I probably tripled the amount of practice questions I did during my second round of bar prep.
- Log your progress. I was way more intentional about compiling lists of rules I kept missing on MBE questions. This helped me to keep track of weak areas so I could spend more time learning the law in specific subjects.
- Spend timing thinking about any testing anxiety you might have. Adding mindfulness meditations to my study plan helped a ton!
That brings me back to the start of this little essay. How do you know what are the really great books to read (or the great things to do)? That's were wisdom comes in. Reach out to a person you trust, on your faculty or staff or from a colleague or mentor who knows you as a person from head to toe. The advice that I've shared in this blog is from such a person, who, although he/she doesn't know you, knows you, because she/he has cared enough to share with you the lessons learned through the process. So, you have a friend who is rooting for you (and that includes me too!).
Wednesday, May 6, 2020
The Bar Exam is in the front of everyone's mind right now. When will it happen? Should we change the exam? Does the exam actually measure competence as lawyers? Should we be using diploma privilege instead?
All of these are excellent questions, and handled in much more serious papers, usually by our very own Marsha Griggs!
However, I wanted to take a bit of a fun look at the history of the Bar Exam. I have been reading Robert M. Jarvis' An Anecdotal History of the Bar Exam (9 Geo. J. Legal Ethics 359 (1996)) and wanted to share some highlights.
- Massachusetts became the first state to offer a written exam in 1855. Prior to this, states would issue oral exams, often with a Judge in the district that the lawyer wished to be admitted, or with a lawyer already admitted to that bar. Massachusetts began the written portion for those that couldn't take the oral portion, but in 1876 Suffolk County (the county that Boston, MA sits in) began requiring lawyers to pass a written examination in order to be licensed. In 1877 New York introduced a written exam in addition to the oral exam.
- The oral exam seems like it was less stressful and rigorous than what applicants go through today. Huey P Long – former Gov of LA - passed his oral examination easily. When asked by George Terriberry, an admiralty practitioner, what he knew about admiralty, Long replied” Nothing." When further asked about how he would handle an admiralty matter, long answered “I’d associate Mr. Terriberry with me and divide the fee with him.” Long passed.
- Abraham Lincoln was a bar examiner, and judged to be a very lenient one. According to Len Y. Smith, in Abraham Lincoln as a Bar Examiner, B. Examiner, Aug. 1982 (An article I'm currently trying to find), Jonathan Birch of Bloomington relays his experience with Lincoln. Lincoln essentially asked him "how long have you been studying?" with Birch responding "Almost two years." According to Birch, Lincoln's response was "By this time, it seems to me," he laughed, "you ought to be able to determine whether you have the kind of stuff out of which a good lawyer can be made." Then Lincoln asked for a definition of a contract, and then sat on the edge of the bed and began to entertain Birch with stories. Then, took him to the clerk, and gave the clerk a note saying "My dear Judge:- The bearer of this is a young man who thinks he can be a lawyer. Examine him if you want to. I have done so and am satisfied. He's a good deal smarter than he looks to be. Yours, Lincoln." I am certain almost all of my students would pass either of these oral exams. I have also heard that Lincoln once examined an applicant from his bath tub. I love this story, but have yet to be able to find a reliable source, so take that with a grain of salt.
- Before you think that all oral examinations were easy, and most were just a mere formality, they were not easy for everyone. Clara Foltz, the first woman admitted to the CA bar, was administered a 3 hour oral exam. In addition, this "mere formality" was usually a way to find out the applicant was likable, or meshed well with the current bar. You can imagine how this created inequity at the bar.
7 states allow you to “read” the law – California, Maine, New York, Vermont, Virginia, Washington, Wyoming – this means aspiring lawyers study to be a lawyer and take the bar without attending law school. This is what Kim Kardashian is currently aspiring to do. I can tell you, it isn't easy!
It used to be that 32 states allowed for diploma privilege. Currently only WI allows this. It was abolished in CA in 1917, and most recently, Mississippi in 1981, Montana and South Daktoa in 1983, and West Virginia in 1988.
New Hampshire was the first state to use a permanent board of law examiners. This occurred in 1872
KY and VA used to have strict dress codes of business attire. While they still have dress codes, they are not as strict as they once were, which required women to wear skirts and nylons.
In 1985 Laura Beth Lamb, a lawyer with the securities and exchange commission, dressed up like her husband, Morgan Lamb, to take the California Bar Exam for him. She was 7 months pregnant, and diabetic, and passed the bar with the 9th highest score on the exam. However, when she was found out she was disbarred, so please don’t try this one. (Also, on a sad note, she claimed he forced her to sit for him after he failed the bar, and threatened and abused her.)
In July 1985 hundreds of bar exams from the New York State bar disappeared without an explanation.
Prior to the 1980s, it was more common for states to use geographical exclusions to limit bar admissions, but a series of cases in 1980 struck down suck exclusions.
I hope this gives you a bit of a fun break from the craziness that is the current bar exam!
Tuesday, May 5, 2020
One thing that most of us probably don't full appreciate until we miss it is degree to which we rely on predictability. When things are going well, it is often largely because so many things are doing just what we expect them to do, without us having to think about it. When every paycheck is direct deposited, when every mocha latte tastes just like you like it, when your spouse kisses you every morning and your favorite TV show is on every evening, it's all part of one grand comfortable life. It is not simply or even primarily the easy and convenience that makes it comfortable. It's the reassurance that comes with knowing that, and understanding how, cause leads to effect. Things happen because we make them happen, or if not, at least we expected them to happen, and all that generates confidence and a sense of efficacy.
Suddenly we enter an alternative universe in which supermarkets run out of the most basic, boring staples, like flour; in which basic medical precautions like hand washing might be useless because you were unknowingly infected two weeks ago; in which jobs and income just disappear for even the most conscientious employees; in which graduating with a degree, even with honors, from a decent law school may not even be enough to permit you to take a bar examination, let alone begin earning a living. All of these are aggravating, and some have potentially dire consequences. But taken as a whole, their greatest effect on us may be that they are contradicting our assumptions about how the world reliably runs.
Trust is like a vitamin. When we haven't got a minimum daily requirement -- when there are too many things in our lives that we can't rely on -- it's like a psychic scurvy. Instead of bruising easily and losing our teeth, we panic easily and lose our self-confidence. The cortisol levels in our bloodstreams shoot up, because in an unpredictable world we always have to be prepared to fight or flee. We can't concentrate, we are easily rattled, we might even suffer illness because of it. It's hard. We need to be able to rely on some things to perform well.
This is one of the reasons that humans invented lawyers in the first place. We needed more people we could trust to rely on. We needed people who could develop frameworks of predictable rules so that we would not feel that conflicts were resolved arbitrarily. Lawyers are a testament to the human craving for reliability.
And in order to make lawyers that clients can rely on, we need to teach students to rely on themselves, on their own capabilities and judgment. And this does not happen overnight. First we teach them that they can rely on others -- on their professors to teach them how the law works and on mentors to show them the ropes -- then that they can rely on systems, like legislatures and administrative bodies, and then ultimately on themselves. You know these rules and how to apply them. You understand how to navigate bureaucracy, at least enough to find your way through any new one you encounter. You know how to come up with solutions, how to suggest them to other interested parties, how to negotiate a compromise. You're a cause that has effect, because you are a lawyer.
Even with everything going well in law school, though -- and it may not be, at least not for every student, given the range of burdens that they are shouldering -- when the rest of the world is telling you that you can't eat in your favorite restaurant, that the only available toilet paper is the Want Ads section of your local paper, and it may be more than a year before you can begin working, it can be really easy to spend all your time on edge, trembling at the unclear implications of every announcement from the school or your state bar examiners. And when it is easy to be that anxious, it is usually hard to study, focus, work efficiently, and present yourself to the world as a new lawyer.
So, lately, I've been thinking of how Academic Support professionals are kind of like psychic vitamin supplements. In a world in which everybody feels that so many things are less reliable now, we are telling our students, "Look, you can trust us. We'll explain the right answer; we'll send you feedback on your writing; we will find and share information you might not be able to access yourselves. But we will also teach you that you can trust yourselves. You're learning the rules you need to learn. You're developing the writing and analytical and persuasive skills you need as tools to cause the effects you want. You're going to develop the judgment that makes a good counselor, and some day other people will come to rely on you."
All of that messaging is what we do on a good day. Lately, I feel like I have had to up my game to extra strength multivitamin levels. Making myself available for conferences more frequently; responding to emails super-promptly, before students can feel ignored; finding additional resources for students in increasingly dire straits because of the current crisis. Maybe this is really the core of what Academic Support does best at times like these: by actions that show our students that they can rely on us, we help them see they can rely on their professors, on the law, on the system, so that they can better learn to rely on themselves.
Monday, May 4, 2020
Imbroglio: A complicated situation; a sequence of events so absurd, complicated, and uncommon as to be unbelievable.
Merriam-Webster might as well add a footnote to the July 2020 bar exam administration as an example of the term “imbroglio.” No other term can accurately describe the debacle that surrounds the upcoming bar exam. Blog, essays, and the exasperated cries of bar candidates—summed up in one word. One word with an applicability of meaning that has become self-evident.
A complicated situation – Our nation has become embattled by a contagion that shows no sign of relenting. Across the country, stay at home orders are in place to mitigate the spread of the deadly coronavirus. In states with large numbers of bar takers, there is no safe way to administer the bar exam in the traditional format. Yet, bar examiners and the American Bar Association insist on a bar exam as screening tool for entry into the practice of law.
A sequence of events so absurd – Some states postponed the July exam. Some states canceled it altogether. Some states propose to offer a bar exam in early September; others in late September; others have postponed the exam “indefinitely.” No matter what the states propose, the National Conference of Bar Examiners (“NCBE”) will let us know on May 5, 2020 whether there will be any multistate or uniform exams released in July. States that have adopted the Uniform Bar Exam (“UBE”) are powerless to administer any exam in July if the NCBE won’t provide the questions, because UBE states don’t write their own bar exams anymore.
Complicated – Epidemiologists tell us that the virus comes in waves. Even with proposed and announced dates for the bar exam, COVID-19 may make it impossible or unwise to administer it in the late summer or early fall. But bar takers cannot afford to wait until there is certainty to begin studying. Many will begin bar study this month, for an exam that may or may not take place. They will study in places that are not libraries or law schools, because those places are closed.
Uncommon – COVID-19 presents an unprecedented situation that will impact the flow of new attorneys into the profession at a time when there will be an increased need for legal services. Extraordinary times call for extraordinary measures, like emergency diploma privilege. Utah adopted a sensible emergency diploma privilege, but the ABA and the NCBE discourage other states from following suit.
Unbelievable – Just when we thought things could not possibly get any worse, the New York Board of Law Examiners announced that it may not have enough room to allow bar applicants from out of state law schools to sit for the exam that it hopes to administer on September 30 – October 1. In that same announcement, and with hold-my-beer momentum, the New York bar officials strongly encouraged candidates “to consider sitting for the UBE in other jurisdictions.” That this advice was given without regard for the COVID precautions of other states, and at a time when very few other states were still accepting applications, defies comprehension.
I won’t ask, “what could happen next?”
 ABA STANDING COMMITEEE ON BAR ACTIVITIES AND SERVICES LAW STUDENT DIVISION RESOLUTION [sic] (04/07/020) “the Resolution does not . . . modify or limit the historic and longstanding policy of the ABA supporting the use of a bar examination as an important criterion for admission to the bar.”
Monday, April 27, 2020
For the times they are a-changin’. -Bob Dylan
The times certainly have changed. Almost overnight, every facet of daily life has transitioned to online delivery. Telehealth and telemedicine are becoming the primary source for doctor-patient interaction during the pandemic. Law school classes are online. College classes are online. K-12 primary education is online. Church and religious services have moved to online formats. My grocery and organic farm-to-table products —gone online. Court hearings, also online. I can buy a car, entirely online. I can have legal documents notarized online.
But I cannot take the bar exam online. At least not yet.
The COVID pandemic has tested our resolve and our ability to utilize available technology. Almost every aspect of the legal profession, from court proceedings and probate administration, to law enforcement and legal education, has mobilized for remote administration. Bar examiners at the state and national levels should hang their heads in shame for not harnessing the available technology to deliver the existing exam remotely. It is an embarrassment of epic proportions that those at the helm of legal licensure are so behind the times that the pipeline for entry to the legal profession could be closed until further notice.
Relentlessly tethered to tradition, those insistent that 2020 law grads take an exam that may not be offered until early 2021 have either dropped the ball or are hiding it. It is fundamentally unfair to require an exam for licensure and at the same time withhold that exam from licensure candidates. The cries for diploma privilege and supervised practice options have sounded around the world. To which bar examiners and high courts have responded with either feigned indifference or a proposed solution that is no more than a band-aid for a gaping wound.
To become attorneys, bar candidates should not have to risk their health or the health of their vulnerable loved ones to the spread of the coronavirus. Even today, there are still more unanswered questions than answers. The majority of U.S. jurisdictions have made no announcement as to whether they will offer an exam in July or not. A number of states have canceled the July exam, but still have not announced definitive information about the date or form of the replacement exam. Candidates across the country remain in the dark as the bar exam becomes an archaic qualifier for competence. If the bar examiners hold fast to the pencil and scantron method of testing, we can expect to see it go the way of the pay phone, the answering machine, and the 8-track tape.
Two states, California and Massachusetts, have alluded to an online exam, but with little detail. It remains unknown what role the National Conference of Bar Examiners (NCBE), who produces the multistate exams used in all states except Louisiana, will play in the online exam. If the NCBE can provide an online exam for two states, why not do so for all UBE jurisdictions? And why make candidates in other states suffer the risk of exposure to COVID or career delays by withholding the online exam?
If the NCBE has not developed an online exam, we must ask “why not” and "where has it been for the last two decades?" And we must not accept “test security concerns” as a viable response. Test security is no less of a concern to law school faculty, and to those who administer admissions exams. Yet all law school exams and the LSAT will be offered online in May 2020. The MPRE (another NCBE exam) and other professional licensing exams are already online.
Whether the bar exam effectively assesses one’s competency to practice law is a reoccurring question that will continue to resurface. At a time when virtually every state, except maybe Utah and Wisconsin, is under fire for indecisiveness and poor communication regarding the fate of would-be July 2020 bar takers, bar examiners are justifiably under scrutiny. As is the bar exam. The future of the exam is in the examiners’ hands. We’ve only to watch and see if they’ll respond like Blockbuster or Netflix.
(Marsha Griggs© 2020)
Sunday, April 26, 2020
Nearly every lawyer has a bar exam story. For some, it was sleepless nights studying. Others experienced trauma during the preparation period. I walked under the wrong bird on my way into the exam. Ask any lawyer, and they will tell a story. Is the collective experience enough for continued administering the current bar? The current crisis necessitates asking whether the current bar exam is an appropriate assessment tool. Brian Tannebaum published this week that the answer is no. He said the bar should be cancelled forever. (hat tip to James McGrath)
The bar exam debate reached the boiling point this year due to COVID-19. The 2015 addition of Civil Procedure to the MBE and subsequent crash in national MBE scores raised red flags about the test. In front of over 100 experts in learning and student achievement, a NCBE representative (current president) ignored and ungracefully punted when questioned about cognitive load theory. The continued decline in scores caused numerous questions about the MBE. Now, the COVID-19 crisis could prevent safely administering the bar exam, and state bars must answer the question whether bar exams are necessary for licensure.
The NCBE obviously says the bar exam is critical to licensure. In a white paper some would describe as insensitive during the current crisis, the NCBE promoted the virtues of the bar exam. The exam protects the public by ensuring a level of competence by everyone licensed. You can read their white paper here.
I am skeptical of the white paper arguments though. Aside from the obvious financial bias, the white paper conflates bar exams protecting the public with their version of the bar exam protecting the public. They espouse the MBE's greatness through reliability and validity. Their argument is an objective MBE is fair, and thus the best assessment. The argument is persuasive if fairness also related to the practice of law, but unfortunately, I believe the MBE only tangentially relates to competence to practice law.
For a paper I want to publish, I contacted over a thousand former students and attorneys in OKC to take a simulated MBE provided by a bar review company. Approximately 20 agreed to take the exam. The practice experience ranged from 1 year to over 15 years. Unsurprisingly, 0 (zero) people passed the simulated MBE according to the Oklahoma MBE cut score at the time (135). A litigator passed the Evidence section, but no one else passed the subject they practiced the most. ADAs and PDs failed the Crim Law section. Transaction attorneys failed Contracts. As attorneys' experience increased, MBE scores decreased. I had Superlawyers, local award winners, and Superlawyer Rising Stars take the test. The results were the same for everyone.
The argument the bar exam protects the public assumes the exams tests what a lawyer does for the public. Unfortunately, the MBE fails to test minimum competency to practice law, which is the threshold for licensure in virtually every state. It tests competency to answer MBE questions which allude to legal concepts within the questions. I know the criticisms of my research. It isn't statistically significant and the test isn't a real MBE. Finding lawyers to voluntarily take a bar exam isn't an easy task. However, I fully believe the result would occur on a larger scale. I encourage bar examiners, Supreme Courts, and anyone advocating for the MBE (including lawyers at the NCBE) to take a simulated MBE. I encourage the NCBE to make a real version of the MBE available for the test and independent score verification. If a large majority of participants pass, then the MBE tests minimum competence to practice law. However, if they don't, then maybe the wisdom from learning experts about cognitive load, spaced repetition/the forgetting curve, and other learning science can be used to create a test that truly assesses the minimum competence to practice law.
COVID-19 is accelerating an ongoing feud over the bar exam, especially the MBE. This debate will continue, so I encourage everyone to evaluate the information related to the bar. We can use this time to either modify or solidify the current licensure process. Previous generations' experience should not be our guiding principle for an exam. Even if I am wrong, now is the time for boards, Supreme Courts, and the NCBE to evaluate the way we license attorneys. Confidence in what we are doing actually protects the public should be paramount.
Thursday, April 23, 2020
There's a line in the book Moon Dust, regarding people who fervently believe that the Apollo moon landings did not take place, that reads: "The only thing I feel sure of [with respect to a moon landing skeptic] is that he wants to believe this story...." A. Smith, Moon Dust, Harper Perennial (2005). In other words, no matter the evidence, the unbeliever will not believe. Sometimes I feel like that with the bar exam uncertainties and postponements.
As Professor Marsha Griggs points out, law schools (and most of the rest of education) flipped on a dime to online learning. Let me tell you about online learning. I was a skeptic. And, I was afraid, mighty afraid, because I didn't think I could do it. But guess what? I just finished my last class of the semester, online, with smiles and in celebration with my online students. It's too early to tell, but it seems to have worked. I think I'm now a believer.
That brings me to my first point...
Prior to online teaching, I just didn't believe that it could be done, at least not well. I was like the moon landing skeptics. I had heard that some had succeeded in online environments but I didn't really believe the stories. Not at all. But I'm no longer a skeptic because I've experienced online learning for myself. It's not quite a moon landing, but somehow I navigated through the ether of the internet space to make contact with my students, for them to connect with me, for all of us to connect with each other. Here's what I've learned. I was stuck in the past due to confirmation bias. To put it plainly, I lived in the rut of traditional classroom teaching because that was all I knew. And, because that was all I knew, I couldn't see that there might be other ways to deliver high quality legal education. That is until I had to teach online.
So that brings me to my final point - the bar exam...
If law schools can successfully switch to online learning in just a few weeks or two, it sure seems like bar examiners can switch to online bar exams with a few months of lead time. Yes, that would mean open book bar exams. Yes, that might mean reducing the bar exam to a one-day multiple-choice MBE exam. Yes, that might mean some lack of security. But, is there any real reason to hold onto the past model in light of the future pressing down upon us with some much uncertainty? I think not.
It's time for the bar exam to move past tradition and into a future that might be much better for all of us - for bar examiners, bar exam takers, and the public too. I know. Sometimes it's hard to give up what we know. However, if we only ever keep our hands gripped tightly around the present, we'll miss the wonderful chances that are all around us to improve the future of our world. The choice is ours, all of ours. (Scott Johns).
Sunday, April 19, 2020
Law School Transparency has put out a new report on its Vision for 2025. LST is a nonprofit dedicated to making the legal profession more transparent, affordable, and fair. The report identifies LST’s priorities, recommendations, and efforts to create more accessible, affordable, and innovative law schools—all with an eye to creating a more diverse law student body and, by extension, a more diverse practicing bar. (The report was funded by the Iowa State Bar Association—kudos to that organization and its leaders for its financial support of LST and its advocacy!)
I’m on LST’s board of directors, so I knew this report was coming, but I’m blown away by its depth and thoroughness. There’s a useful executive summary on pages 5-11. Some highlights:
1. Taking on US News: David and Goliath
The first half of the report addresses the wrongheadedness of our national reliance on Goliath: the US News rankings. As LST’s Executive Director, Kyle McEntee, said to me recently, “Ordinal rankings—one, two, three—convey authority because of their simplicity. They convey that one is better than two, and two is better than twenty.” But of course law schools have many dimensions of strengths and weaknesses, and prospective law students have a diversity of priorities, so ordinal rankings don’t address prospective students’ actual interests.
In response, LST is in the process of developing its own, more nuanced, rating system for law schools. Called the LST Index, it will evaluate schools based on a better set of criteria than US News’s clunky proxies. The exact criteria are still in development—LST will draft a list of approximately 50 criteria for consideration, then refine those criteria through an extensive public engagement period. Each criterion will be measurable, document-able, and provable. (LST has already workshopped some proposed criteria with D&I experts, deans, law students, and practicing lawyers at University of South Carolina and Boston College.) Then, the entire system will be improved through an iterative review process—does the Index measure the things law schools and law students value? More information about the LST Index is available at pages 31-39 of the report.
Meanwhile, as LST is developing an alternative to the US News rankings, it’s also lobbying US News to modify its existing ranking algorithm. I think it’s really practical for LST to address the problem on both fronts—loading its slingshot with the LST Index while also working with Goliath to be smarter about things. LST’s specific suggestion here is that US News replace its current “expenditures” data point with an “efficiency” metric. That is, instead of taking into account how much a school spends per student, a figure that will always make private schools look better than public ones, LST is suggesting that US News give credit to schools who provide more bang for their buck. An efficiency metric would consist of the ratio of tuition revenue to high-quality jobs (e.g., long-term, full-time JD-required or JD-advantage jobs) after graduation. More information about the proposed efficiency metric is available on pages 40-50 of the report.
2. Adjustments to the Law School Accreditation Process
The second half of LST’s report addressed law schools’ accreditation. LST has specific critiques of which accreditation metrics the ABA should ease up on and which it should tighten. These are more interesting to law faculty than to prospective students, but they’ll still be important adjustments that can make a big cumulative difference. In particular, LST is lobbying the ABA to allow more flexibility in how law schools deliver learning outcomes, review what full-time faculty members do to provide high-quality legal education, liberalize distance education standards (oh, how timely!), examine the diversity of valuable ways in which libraries contribute to legal education, and refine the variance system. On the other hand, as a matter of consumer protection, LST argues that the ABA should ask tough questions about why different students—particularly students of color and women—in a law school class are paying different amounts of tuition, and frankly, why legal education is so freaking expensive in the first place. LST has always been a proponent of transparency (it’s right there in the organization’s name: Law School Transparency), and the report makes compelling arguments for law schools to make more disclosures about law student borrowing, tuition discounting, and diversity. More information about accreditation changes can be found in Part II of the report, pages 51-84.
Lastly, a plug for assistance. If you want to help LST develop the LST Index or lobby for different accreditation standards, check out ways to help here.
(Cassie Christopher - Guest Blogger)
Monday, April 13, 2020
Hat tip to Sara Berman who shared an op ed that made it to my inbox this morning. The article: When Will Life Be Normal Again? We Just Don’t Know, by Charlie Warzel, an opinion editor for the New York Times. Warzel’s article consists of 46, mostly single-sentence, paragraphs of pandemic related questions that we simply do not have answers to. Those unanswered questions are flanked by only and exactly eight sentences of text, that bring home the point that as we enter a month or more of shelter in place lockdown, “we have more questions than answers.”
Today, like so many days before, I ended the day with more questions than I started with. And not one of my questions has found a definitive answer. I’ve read and written articles, blogs, exposés, papers, and proposals, but I’ve found no catchall answers for those tasked to assist the incoming class of attorneys with bar readiness. As I ponder my own questions, my thoughts shift seamlessly to the meritorious and unanswered questions of law students and future bar takers:
If there is a bar exam, will masks be included on the list of permitted items? If not, will the examiners provide masks at the test sites?
How will bar examiners ensure the safety of examinees during the exam administration? Will there be on-site coronavirus testing?
What recourse do we have if we contract the virus during an exam administration?
Should we have to risk our health and the safety of our loved ones to take the bar exam?
If it's not safe to go to school, attend church services, or have dinner in a restaurant, how is it safe to sit in a room with others for six hours to take an exam?
What supervised practice options are available to students who plan to enter solo practice or practice in rural areas without other attorneys?
What arrangements will there be for students who receive test accommodations?
When did administration of the bar exam become tied to the number of people taking it?
If there is a bar exam given in July in State A, will students in State A also have the option to take the exam in September instead of July?
If a student who has registered to take the July exam does not feel safe taking the exam in July or September, can that student receive a refund of their examination fee?
Are you listening to the students in your state or are you listening to some outside entity tell you what is best for us?
Could you study [effectively] for a two-day bar exam under these conditions? Has anyone ever had to prepare for and take a bar exam under these conditions?
Do you wonder why the number of people interested in going to law school has dropped?
If an emergency is not a time to make a change, when is?
Why are folks in a diploma privilege state so opposed to diploma privilege?
What is it about diploma privilege that scares you?
Isn't diploma privilege a bigger threat to those who sell and profit from the exam than it is to the public?
What good is ABA approval if examiners and the ABA don’t trust our law schools to educate us and prepare us for practice?
What does the bar exam test that three years of law school did not teach us?
Why do you have more confidence in an exam than in us?
I claim no originality for this week’s blog. I credit a writer whom I’ve never met for the concept, and I credit the questions to the voices of law students that I have and will continue to listen to.
Monday, April 6, 2020
For decades Wisconsin has stood alone in its court-adopted diploma privilege for graduates of law schools within its state borders. However, Wisconsin is not the first state to enact diploma privilege as a means of licensing attorneys. At one point, diploma privilege was the norm, not the exception. Thirty-two states and the District of Columbia utilized diploma privilege as the principal means of licensing law school graduates until the early 1900’s. When the American Bar Association denounced diploma privilege, states began to move toward examination as the gateway to licensure. Many could have been left to believe that the time of diploma privilege was a bygone era. But maybe not so.
New Jersey has emerged as a leader by offering what most should consider a reasoned and compassionate compromise to address the frustratingly uncertain predicament that would-be July 2020 bar takers face. Today, the New Jersey Supreme Court entered an Order cancelling the July exam and postponing to a date uncertain in the fall. State courts in Hawaii, Massachusetts, and New York, had done the same thing days earlier. But unlike its northeast neighbors, New Jersey has granted an expanded ability to temporarily practice law under the supervision of an attorney to 2020 graduates of any ABA accredited law schools who have not previously taken a bar examination. The order temporarily authorizes 2020 graduates to enter appearances, draft legal documents and pleadings, provide legal services to clients, engage in negotiations and settlement discussions, and provide other counsel consistent with the practice of law. The temporary license terminates on the date the next bar exam is given in the state of New Jersey.
Critics may point to shortcomings of the Order. To such criticism bar admission policy reform advocates will likely respond todays order was not perfect, but it was an excellent start. “At this challenging time, the public has a continuing and growing need for legal services in many critical areas,” Chief Justice Rabner stated in the order. “Newly admitted lawyers can help meet that need. The Court also recognizes that, without a means to pass the bar and obtain a law license, qualified students who expect to graduate this spring may lose job offers, be unable to find legal work, and otherwise suffer financial hardship.” Thank you, New Jersey. Thank. You.
Who's got next?
 Beverly Moran, The Wisconsin Diploma Privilege: Try It, You'll Like It, 2000 Wis. L. Rev. 645, 646 (2000).
 Paul C. Huddle, Raising the Bar: How the Seventh Circuit Nearly Struck Down the Diploma Privilege Under the Dormant Commerce Clause, 5 Seventh Circuit Rev. 38, 40 (2009).
 The supervising attorney must be in good standing and have been licensed to practice law in New Jersey state courts or at least three years.
Saturday, April 4, 2020
The NCBE released an update yesterday on the fall bar exam dates. You can read the update below. You can also click here to go to their COVID-19 updates page.
Last updated April 3, 2020, 4:48 pm (CDT)
NCBE continues to monitor the coronavirus (COVID-19) situation closely. The health and safety of bar applicants and of our employees and volunteers are of paramount importance to us. We will update this page as new information becomes available.
Click below to see which jurisdictions have made announcements about the July 2020 bar exam.
For answers to frequently asked questions, see the FAQs below this statement.
At NCBE, we understand the anxiety and frustrations that law students and graduates have regarding the uncertainty surrounding administration of the July bar exam. The bar admissions process, like everything else, is being disrupted by the COVID-19 pandemic.
NCBE’s mission is to promote fairness, integrity, and best practices in admission to the legal profession for the benefit and protection of the public. That mission is more important than ever at a time when there is such great need for a competent and ethical legal profession to serve the public. It is with that aim in mind that we are seeking to ensure that the bar exam can be administered to as many candidates as possible in 2020.
To provide needed flexibility for jurisdictions and candidates, in addition to preparing materials for a July bar exam, NCBE will make bar exam materials available for two fall administrations in 2020: September 9-10 and September 30-October 1. Each jurisdiction will determine whether to offer the exam in July, in early September, or in late September.
We don’t yet know what the months ahead will hold. NCBE is being proactive and continuing to explore solutions for as many scenarios as we can anticipate. We are consulting with outside testing, technology, and exam security experts to consider various options and alternative methods of testing if the traditional group setting must be canceled or modified.
But no matter what happens, we are committed to ensuring that law students have every opportunity to become licensed so that they can put their legal education to work in helping those affected by this crisis.
Thursday, April 2, 2020
I sometimes wonder which is a bigger issue when it comes to attorney malpractice. Ethical problems or doctrinal issues?
As best I can tell, there are few disciplinary actions based on the elements of a negligence claim or the standard for a preliminary injunction or the elements of a common law marriage. Rather, it seems like most disciplinary actions are based on failing to abide by the rules of professional conduct, often due to time-management issues or substance abuse problems or client fund issues, etc. - all significant concerns that greatly impact the public good. Nevertheless, most states test ethical rules by using a one-day computer-based multiple-choice test -- the MPRE.
Consequently, if a multiple-choice exam suffices to assess ethical rules, why not use a mutiple-choice exam for assessing substantive doctrinal law too, especially in light of the concerns about administering a bar exam this summer due to the COVID-19 pandemic?
So here goes a possible syllogism:
The issue is whether bar examiners ought to consider using a one-day computer-based multiple-choice exam to assess doctrinal legal knowledge and application.
Like situations can be treated alike.
Here, with respect to the bar exam, assessing knowledge about ethical rules for professional competency, which is assessed by most states using a one-day online multiple-choice exam, involves the same sorts of problem-solving analytical skills as assessing knowledge about substantive doctrinal laws.
Therefore, bar regulators ought to consider using a one-day online multiple-choice MBE exam, delivered similar to the computer-based MPRE, to substitute for the current two-day in-person exam.
If my syllogism holds true, then there's no logical reason why states should delay the bar exam this summer because bar examiners can instead reformat the exam as a multiple-choice MBE exam to determine knowledge and application of substantive doctrinal law.
And, there's more great news. There's no reason why bar examiners can't permit law students to take the MBE prior to graduation just like the MPRE...so that law graduates are really practice-ready...at graduation. Wouldn't that be super!
And, as illustrated by the movement of the MPRE to an online testing format, bar examiners also have the expertise to convert the MBE from a paper & pencil exam to a computer-based exam.
Finally, although there are exam security issues raised with using online testing, particularly because online testing for this summer would most likely have to take place under "shelter in place conditions," those concerns can be mitigated by bar examiners as regulators make character and fitness decisions.
In short, it's time to move to online multiple-choice testing.
In my opinion, failing to act now, in the midst of this ongoing crisis, not only harms bar applicants because of the delays that might befall them due to COVID-19, but also fails to protect the public, who disparately need (and will need) legal expertise, now more than ever, as the U.S navigates through this world-wide crisis. Just food for thought!
P.S. Note: The biggest issue with respect to any licensure exam, it seems to me, is whether it actually assess what it purports to assess, minimal competency to practice law. As best I can tell, most states evaluate written exam answers - not for minimum competency - but rather based on a process of rank-ordering exam answers. And, with respect to multiple-choice exams, I suspect that much of the success lies not so much with assessing competency but with developing test-taking skills and the knowledge of U.S. legal culture. But, there seems no inclination to abandon the bar exam regiment. Hence, I suggest retooling the bar exam as a one-day online comptuter-tested MBE exam available for law students to take after their first-year of legal studies.
Saturday, March 28, 2020
There is so much that goes into the making of a bar exam. There are layers of research, accountability, and quality control involved in the drafting of the questions. There is beta testing of the exam content. There is scoring, rescoring, and equating. And there are levels of exam security that rival Area 51. The parties involved range from statisticians to politicians, who cautiously weigh input from the podium, the bar, and the bench. To top it all off, the job of bar examiner – at least at the state level – is a modestly compensated appointment that is held all the while keeping a day job of managing a law practice, or ruling from the bench. Too little appreciation is shown to our almost volunteer bar examiners in times of rest and high passage rates. So, I sincerely and thankfully shout out bar examiners everywhere who discharge an office of such societal importance. And I use the term bar examiners in the collective to include every role, from essay graders to the character and fitness investigators, from the licensure analysts to the admission administrators and honorable members of the board.
Bar examiners have to operate independently and make decisions about scoring and bar admissions that will be unpopular to some. But the examiners must make decisions, and it is the failure or delay in reaching a particularly important decision that has placed examiners under fire across the country. That decision: what about the July 2020 exam?
It is understandable to the legal and lay public that a law license is a privilege not to be indiscriminately awarded. It is equally clear that security protocols must be in place to maintain the integrity of the exam. What is not understandable is how some examiners can fail to make adjustments in the face of the extreme and dire circumstances of the COVID pandemic. In less than two weeks’ time, the nation’s ABA-accredited law schools went entirely online, trained faculty (many with limited technology skills) for online teaching, and adopted pass-fail grading. There is simply no excuse for bar examiners to not be just as creative and as willing to implement emergency protocols for the prospective July 2020 examinees.
This week 1,000+ students, representing all of New York’s law schools, petitioned the New York State Bar Association’s Task Force on the New York Bar Examination for an emergency diploma privilege. Days later, New York canceled the July exam. Adding ambiguity to injury, the exam has been rescheduled to the fall, but no date is provided to examinees who need to make study, travel, and lodging plans for the two-day exam. Are you kidding us? It’s almost like the examiners are not listening. At all.
A reasonably prudent person will interpret the New York decision as a signal for other states to follow. New York is considered highly influential, as its 2016 adoption of UBE was followed by Illinois, Maryland, North Carolina, Ohio, Tennessee, Texas, and others. The 2020 bar takers are not asking the examiners to give away law licenses without merit. They —joined in large number by law faculty, deans and alumni— are asking for necessary emergency licensing measures. They are asking examiners to think outside of the traditional bar exam box. They are asking that fairness, humanity, and the chance to earn a living be prioritized over security worries. They are asking the examiners to listen.