Wednesday, October 7, 2020
As I write these words, my former students are busily working through the final session of the most unusual and stress-inducing bar examination I have ever known – one that has been twice delayed, resulting in erratic study schedules and lost employment opportunities; that is being delivered entirely online using new software, after the cancellation and hacking of online exams in other jurisdictions this summer; that permitted registration only to certain groups of law school graduates, some of whom waited on tenterhooks for weeks before finding out that they would be permitted, or not permitted, to take the exam; and that examinees had to prepare for in the midst of a global pandemic and one of the most contentious political environments in the past 150 years. The last five months have provided a cavalcade of anxiety, uncertainty, pessimism, and anger, marching in different permutations through opinion pieces, Facebook posts, public hearings, Twitter threads, and Zoom discussions, week by week, right up until yesterday at noon, when the examinees finally had to slay the dragon.
And yet. Here we are, 30 minutes or so from the end, and mostly . . . things seem okay.
Except for the odd momentary computer freeze, I have not yet received any panicked reports of tech problems – no crashed programs, no lost data. The dozen or so graduates testing on campus have been in cautiously good spirits and have reported that they felt the test has been fair. The graduates testing at home have largely been quiet, though I encouraged them to reach out to me if they encountered any difficulties.
This is lucky, to be sure. Although in the media (social and traditional) I found no reports of widespread, catastrophic system failure, there are plenty of individual reports of examinees losing data, having trouble with facial recognition software, or simply being unable to get the testing program to work. According to ExamSoft, the company whose software delivers the exam, 98.4% of the estimated 40,000 examinees had successfully started the exam by late Monday. Even if some people chose at the last minute not to take the test, that still leaves potentially several hundred frustrated examinees.
So far, my graduates have not reported problems. Still, we might just be in the eye of the hurricane. It remains to be seen if everyone can upload all the required answer and video files before tomorrow night’s deadline. An overly fastidious review of the video files captured by the remote proctoring program could lead to objectionable disputes or even disqualifications. And it is impossible to predict what the grading will be like, given the smaller number of questions, limited pool of examinees, and delay in administration, compared to an ordinary bar exam. If the results that come out in December are wildly different from those of previous years, there may be complaints that it was too hard – or too easy.
Nevertheless, the facts that we have now arrived at the end of day two of the remote examination without witnessing the “barpocalypse” some had predicted, and that we have not yet arrived at any foreseeable end to the pandemic that forced remote testing in the first place, suggest that we should at least be thinking about preparing for another remote test in February. There may be other approaches to bar admission, such as diploma privilege, that we should continue to advocate for. But there was always the danger/promise that a relatively successful remote administration would lessen resistance to future remote exams.
I am pleased to see that – at least according to the early reports from my students – the nature of the remote exam seems to have caused far less distress than the delay and uncertainty that preceded it, and which hopefully will be avoided in the future. And I am enormously proud of the effort, attitude, and skills that these examinees displayed under such extreme conditions as they prepared for and then took the exam. But the fact that the remote exam was not a total disaster does not mean that it couldn’t have worked better, or that no examinees were unfairly disadvantaged or prevented from testing. If we have to have another round of remote testing in February, let us continue to press for ongoing improvement in its administration.
Thursday, October 1, 2020
Just off the press, and not a minute too late, is an ABA article by author Sara Berman with advice for the most recent law school graduates, whether having already taken a bar exam or preparing to take the bar exam this month. https://abaforlawstudents.com/2020/09/01/preparing-for-the-bar-exam-and-practice-during-a-pandemic/.
Here's a few tidbits from the article:
(1) As lawyers (or soon-to-be lawyers), you are an essential worker because democracy and the pursuit of justice depends on the sacrifices, the integrity, and your legal skills.
(2) You've got a inspirational story to share with employers, having successfully navigated the transition to socially-distant learning, with both the completion of your law school studies and preparation for your bar exam. What you've gone through will make you a better attorney in the long-run, so liberally share the lessons you've learned with prospective employers and attorneys and judges.
(3) Stay flexible as you march forward in your pursuit of your legal career, remembering in your heart of hearts that all of your hard work has been more than a worthwhile pursuit because you will soon be joining the bar as a critical "guardian of democracy." Id.
Let me say that we - in the ASP community - are all so proud of you, admiring your flexibility and adaptability, your commitment to the pursuit of justice, and the inner strength and resolve that you have demonstrated in these unprecedented times. Personally, we have much to learn from you. So, please don't ever shy away from letting your voice be heard and your heart inspire us to be the community of practitioners that our world so desperately needs and deserves. (Scott Johns).
Sunday, September 6, 2020
The NCBE released the national MBE mean score for the jurisdictions that administered a bar exam in July. The mean was 146.1, which is a 5 point increase over last year's 141.1. I was surprised at that large of an increase based on previous announcements by the NCBE.
Erica Moeser, previous president of the NCBE, stated in 2014 that the bar examinees were “less able” and that is why nationwide MBE mean scores plummeted. She attributed the results to schools going deeper into the applicant pool because applications were down. She referred to entering credentials as one of the indicators. If she is correct, then this result doesn't make much sense. There was a decrease in 2017 law school applicants, which presumably make up the majority of the 2020 July takers, with a LSAT score of 160 and above. From 2014-2017, the number of high LSATs (160 and above) seem to decrease every year except for 2016. The continued decline should have seen a coinciding decline in MBE scores from 2017-2020. However, the July mean MBE score increased every year from 2018-2020. The previous LSAT explanation doesn't seem to coincide with the results.
The result goes beyond not following their explanation. 146.1 is the highest July mean MBE score that I can find since before 2005. The LSAT profiles do not follow that same pattern. The 2017 entering class is not the most credential entering class in the 2000s. I know my students worked hard this summer, and Mike Sim's recent quotes indicate students across the country worked hard. The good news is this is evidence students can work hard to overcome lower entering credentials. However, the NCBE should at least attempt to answer how their previous explanation is incompatible with the drastic (potentially historic) increase this year.
To the students who endured bar prep and the exam, great job. Your effort and resilience is remarkable. Effort and resilience is a great foundation to build a legal career on.
Tuesday, September 1, 2020
A sharp sense of time has always been a key attribute of successful modern law students and lawyers. Awareness of deadlines, efficient time management, careful accounting of time spent -- all of these contribute to law school performance, and are usually part of a practicing lawyer's quotidian world of minimum billable hours and filing periods.
How unsettling, then, that many of our incoming, current, and recent students find themselves adrift in the time stream. New 1L students in many jurisdictions, starting their legal educations under conditions that have limited orientation activities and warped customary fall semester schedules, are not falling as easily into the clockwork demands of law school as other students have every year before them. Second- and third-year students have already been through six months of time-shifted classes and unwinding employment and internship opportunities, and are beginning a new school year very different from what they had experienced before. And around the country, many recent graduates (such as mine) have grown simultaneously complacent and anxious as their planned bar examinations have been postponed multiple times. Many students and graduates appear to take this all in stride, but it seems a significant number are manifestly affected -- falling behind on long-term projects, working with a diminishing sense of urgency or an inflated sense of panic, or having difficulty juggling responsibilities.
It feels as if the unexpected loss of schedules and signposts that so many took for granted has left some people unmoored, warping their senses of time in the same way that isolation and darkness affects cave explorers. In 1993, for example, sociologist Maurizio Montalbini spent a full year alone in an underground cavern, but because the solitude and lack of natural light had stretched his sense of time, he believed that only a little more than 200 days had passed.
Human beings need cues to help keep our sense of time on track. In a new situation, or one that has changed drastically, we may not perceive sufficient cues to keep us oriented, and we may not even be aware that we are slipping. We can help our students and recent graduates maintain their crucial awareness of the time they have -- and of the time they need to achieve their goals -- by providing supplemental cues. Introducing students to their professors' expectations over the course of the (in some cases altered) new semester, and touching base with reminders of upcoming opportunities and deadlines, may help anchor them when classes are asynchronous and gatherings are infrequent. Weekly emails, frequent online group meetings, and providing and reviewing supplementary materials can help bar examinees feel less disconnected and more engaged in this interminable bar study period. And frequent communication with our colleagues in other departments and schools -- learning their plans for the semester, sharing ideas and insights, and organizing joint efforts -- can help us retain our own sharp senses of time -- especially important if we are going to serve as the touchstones to others.
Thursday, August 20, 2020
It's been many months that some of our Spring 2020 graduates have been waiting to take postponed bar exams. Florida, for example, just recently postponed its postponed exam, from July to August and now to October. If that sounds exhaustingly frustrating, it is... So here's a suggestion for the many September/October bar takers that might just help rekindle a bit of the flames of learning:
Get your heads out of the books and instead take time each day to work through some of the latest current events because much that is in the news also relates to bar tested problem-solving.
For example, take today's federal court indictment following the early morning arrest of former White House adviser Steve Bannon on conspiracy charges: https://www.reuters.com/article/us-usa-trump-bannon-idUSKBN25G1J4. Try locating the indictment and the arrest warrant. Once found, here's a few things to ponder: (1) What authority if any does Congress have to adopt the criminal statutes that are the basis of today's indictment? (2) Did the federal government have probable cause to arrest Steve Bannon, and, if so, why? and, (3) What are the elements that the government must prove for the conspiracy charges?
Here's another possible bar-issue in the news: Many businesses and restaurants are delinquent on rent contracts due to the COVID-19 pandemic. And, some business owners are seeking rent abatement. Others are seeking reimbursement from their insurance contracts. https://www.forbes.com/sites/paulrosen/2020/03/26/what-happens-with-contracts-amid-the-covid-19-pandemic/#774454d342af These sorts of things raise a number of bar issues, such as, (1) What contract law applies to these contracts? (2) Do the defendants have any contract defenses, such as impossibility? and, (3) How should courts interpret force majeure clauses?
Finally, here's another news item to tickle a bit of bar exam intrigue. This case involves whether a lawyer has a defamation claim against an online reviewer when the review stated that the lawyer "needed to go back to law school." https://www.abajournal.com/news/article/need-to-go-back-to-law-school-comment-isnt-libelous-appeals-court-rules After reading the article, here's some thoughts to ask: (1) What are the elements of defamation? (2) If you were an appellate court judge, would you reverse the lower court's decision on whether the statement was actionable and why or why not? and, (3) Does the lawyer have any First Amendment issues as a member of the bar (a public officer of the bar?) and why or why not?
Of course, there are lots more issues in the news, from the COVID-19 pandemic to election interference to protester arrests to lawsuits against the President seeking TRO's and PI's, etc. Search them out. Find the civil or criminal complaints. Figure out whether the courts have personal jurisdiction and subject matter jurisdiction. Focus on the substantive elements. If it's a civil case, figure out if you could intervene as a party in the case. Work through how you would rule or litigate these matters. In short, this is not time to turn your backs on the news. Our world needs your voices now more than ever. So, over the course of the next month or two in preparation for postponed bar exams, feel free to take breaks from the books and take time to talk through and work out what's happening in the legal news of today. And in the process, you'll be learning more about the law. (Scott Johns).
P.S. Not sure how to get started, here's a helpful link with summaries of current legal news-making events: https://www.abajournal.com/news/
P.S.S. For entering first-year law students, taking a gander through the daily news in academic support groups can help bring life to the law, whether they are studying contracts, or torts, or constitutional law, for example.
Thursday, July 30, 2020
This week, a number of states were holding in-person bar exams, complete with formidable safety protocols as defenses. Nevertheless, a group of Colorado bar takers were notified shortly after completion of their in-person bar exams that they were in close proximity with a person who tested positive for COVID-19. Here are the initial details: https://www.cpr.org/2020/07/30/law-student-tests-positive-for-coronavirus-after-taking-colorado-bar-exam/. Previously, recent graduates from the state's two law schools along with many other people sent a petition to the Colorado Supreme Court seeking an alternative licensure pathway, namely, diploma privilege, arguing that conditions were unsafe for individuals to take in-person bar exams. https://www.denverpost.com/2020/07/07/colorado-bar-exam-july-coronavirus-covid-cu-du/.
Thursday, July 2, 2020
That's how Texas bar taker Claire Calhoun put it when describing what she and thousands like her face with the prospect of in-person bar exams in light of increasing incidences of COVID-19:
“We really, really hope and frankly need the bar examiners and the Texas Supreme Court to do something here to step in on our behalf, because it’s life versus licensure, and I don't think that's fair to make us pick." https://www.texastribune.org/2020/07/01/texas-bar-exam/.
It seems like Claire has been heard, at least in part. On July 2, 2020, the Texas Board of Law Examiners, in part due to calls from students such as Claire, has decided to recommend to the Texas Supreme Court that in-person bar exams be cancelled and replaced with an October 2020 remote online bar exam instead. Id. As of this writing, let's hope that the Texas Supreme Court has heeded Claire's warning too. Frankly, it's a choice that no law graduate ought be forced to make.
Now I know that some might say that that's a bit too dramatic. That Claire overstates the risk of harm. But as any bar taker can tell you, it's a real palpable foreseeable risk of harm, something that tort law might and ought to recognize. And, I don't think that Claire's concerns are that far fetched, because some states, seeming to recognize the tort risks at hand, are requiring bar takers to waive liability claims against bar examiners as a condition to sit for bar exams.
In my opinion, that's too much to ask of our future colleagues. Let me speak plainly. It's wrong, downright wrong, especially because the risk of harm is not just a risk that the bar takers and proctors are being asked to assume but it's a risk that bar takers will then be spreading to others who didn't assume that risk at all. That's just not fair or right.
But I'm not convinced that postponement to October 2020 for a remote online exam is right either. Here's why. At this point, with just over three weeks to the scheduled bar exam in July, most bar takers have been studying full-time since graduation in May. They've been planning and preparing for July bar exams. And, as cited in the Texas Tribune article, the financial impact of a 3-month postponement is not something to be taken lightly: “I specifically budgeted my whole summer to take this July bar,” [bar taker] Anastasia Bolshakov said. “None of us are working right now. We have no income. The money we had in May, that's been slowly depleting.” Id.
Listen again to the words of these two bar takers. Don't just read them. Listen to them. Take them to heart, or at least hear them out:
"Budgeted my whole summer."
"Life versus licensure."
Perhaps the risk of COVID-19 will not materialize such that the July and September 2020 bar exams can safely take place in person without putting bar takers, examiners, or the public at risk. If so, by all means have the bar exam.
But if not, let's not fail our most recent graduates by not being ready to immediately provide an alternative licensure path, without any delay at all. For some states, that might mean being ready to immediately transition to an online bar exam with materials and procedures ready to go, for the July 2020 bar exam. For other states, that might mean be ready to roll out a diploma licensure option for July 2020 bar takers.
As every pilot knows, no flight plan is complete if it doesn't plan for the possibility of a diversion to an alternate destination in case the weather turns sour or the destination airport closes.
But it seems like many states have no alternative bar exam plans at all. And, in my mind, postponement is not really a viable alternative plan because it's asking too much of those who have so little to give, especially when they've spent so much, over the course of the past three years, emotionally, mentally, and financially, to prepare for embarking on the profession of serving as attorneys. To not have a viable alternative plan for our most recent graduates, at this point of time in the summer, is to leave our bar takers suspended in the air, without any place to land.
Perhaps I am speaking out of turn. Perhaps states have alternative licensure mechanisms ready to go so that the July 2020 bar takers need not fear any delays whatsoever. If so, let them be known. Share them with your future colleagues.
But if not, reach out to them. Work with them, their law schools, and state bar associations and practitioners to develop and plan viable alternative licensure pathways that are ready to go if need be. After all, at this point, no one has been able to accurately predict that path of COVID-19, not even the scientific experts.
That suggests that the best laid plans must include ready-to-go alternatives, too. That's the only way to fly safely. And that's the only way to practice law wisely. So also, it's the only way to do justice to not only the public but also our most recent law school graduates. (Scott Johns).
P.S. Let me suggest two possible licensure alternatives.
• First, a remote online exam with law schools footing the bill to provide - as needed - stable internet and testing locations for individuals without such capabilities. I would envision a 3-hour open book written exam, composed of four (4) 30-minute essays and (one) 1 mini-performance test, drafted by local practitioners and courts and their law clerks. Such an exam could be easily prepared and logistically administered by state supreme courts with just under three weeks to go to the July bar exam.
• Second, a diploma licensure "plus" program. In the event that in-person exams must be postponed without an alternative remote exam, partner with jurists, practitioners, and faculty to host two-day online workshops, guided by these experts, in which bar applicants and attorneys join together to work through a number of legal problems. In shaping the online program, I would encourage state supreme courts to frame workshop problems around current events that raise issues from the bar tested-subjects, with the workshops implemented in lieu of the July bar exam, such that completion of the exam would result in the admittance to the bar.
Wednesday, July 1, 2020
So, most of you had a scheduled practice test this last week, or will have one soon. It’s likely you’re feeling many things, so let’s talk about what the score means, and what you can do.
First, the score tells you where you are NOW, not whether you will pass or fail. Before I tell you what you can do AFTER the exam, I want to tell you a story.
Once upon a time, there was a bar taker. Right around July 1st she took a practice exam from BarBri. This was so long ago that you had to do everything by hand, including the grading. As she graded, it slowly occurred to her that her score was not great. Really not great. She got 90. Not 90%, but 90 questions right out of 200. Yikes. And she thought she was good at multiple choice. This came as quite a blow to her ego, and she was very distraught. There might have been some wallowing, crying, and ice cream.
So, after some wallowing, she did what I’m going to tell you to do, and ended up getting a 148 raw on the actual MBE. I only point this out because that’s an increase in 58 points. And trust me, if she can do it, you can too.
So, first and foremost, remember that the practice test is PRACTICE. It’s designed to help you learn. You have 4 weeks, and in some cases more, before the bar exam. That means you are still learning!
Next, if you didn’t do well, allow yourself some time to wallow. Grab the ice cream, go for a run, clear your head. Do what you need to do. Then come back, and let’s assess and learn.
First, get out an excel spreadsheet or make a chart in a word doc. You’re going to track what you did wrong, and what you did right.
Obviously, track which topics were better and worse. Did you get more wrong in contracts than torts? But, go a step further, and track the subtopics. So many people will come up to me, frustrated that they aren’t doing well in a particular subject. But what PARTS of that subject are you struggling with? For contracts are you getting all of the damages questions wrong, but doing fine with formation? This matters for two reasons. First, it matters because it helps you decide where to spend your time. Don’t just think about spending your time with “contracts”, but focus it further. In addition, if you notice you are struggling with damages, don’t assume that you don’t know the law. Line up some wrong questions and see if you notice a pattern. Is it the way the question is being asked? Or are you struggling to pick the right answer out of 2?
That brings us to the next important step of tracking. WHY did you get the answer wrong? Don’t just assume it was the law. Could it be something else? Were you reading carefully? If not, mark that down as “RC” or reading comprehension. Did you miss the law being tested? Perhaps you feel confident that you know the rule against perpetuities, but you didn’t recognize that it was being tested in this question. Were you second guessing yourself? Did you have the right answer and change it? Did you miss an important fact?
The point is to look for patterns. Everyone assumes they don’t know the law, but you graduated from law school! No small feat! That means you know something, I promise. So, look for other patterns. For example, most of the time when I get multiple choice questions wrong it’s careful reading. I read quickly and miss important facts, or don’t pay close enough attention to the call of the question. But now that I know this about myself, I can watch for it and remedy it. I also tell students who find they second guess themselves frequently to do the math – what would your score have been if you had NEVER second guessed yourself? If your score would have increased, use that as motivation to NOT second guess yourself. The point is, knowing the patterns help, and will help you study more effectively.
Also, if the law is the reason you got it wrong, be specific. Is it that you didn’t remember the law? Or that you didn’t understand it? Your answer to this changes your review. If you just failed to remember an element or an exception, working on memory will help. But students often assume this is the fix to all things, when in fact, they don’t fully understand the law. If that’s the case, merely memorizing the law will not help you get the question right. To test this, use your outline. With the law in front of you, can you get it right? If the answer is no, it’s not memory, and you need to look elsewhere.
As you track, think of a takeaway per question. So, if I got 90 right on my practice test, that’s 110 opportunities to learn something new. Yes, I know, cheesey. But it works, I promise. Remember 58 points! So, if I can learn 110 new things, that’s an increase in your points for sure. Statistically, about 20-30 points. Your takeaway should be something that you can use on multiple questions. It can be a reminder that when a question asks you for the BEST defense, it doesn’t mean defendant will win. It can be putting a nuance or an exception on a flashcard. It can be the reason why one answer is better than another. For example, if a contracts question asks about breach of contract, an answer choice that talks about reliance or estoppel will be wrong, because that’s not a contract.
The point is to learn something from each question. I promise, it WILL work. Don’t just go back to your outlines and redo them, or make them prettier. Don’t just review law or re-watch videos. Dive into those questions and really learn.
A few last multiple choice notes. It’s important to practice using pencil and scantron (actually bubbling in answers) before the test, potentially multiple times. It’s also important to practice in timed conditions. Make the test conditions as test like as possible – limit bathroom breaks, don’t drink water, or eat. Set a timer. If you plan on using ear plugs, wear them.
If you are struggling with multiple choice in general, our very own Steven Foster has a CALI lesson for that! https://www.cali.org/lesson/18100
Finally, good luck, and remember practice makes perfect!
Friday, June 26, 2020
Let’s talk about what’s been going on with the bar, and what our students have been dealing with. I would like to stress that these recent graduates will be the newest members of our profession. We owe it to them to care about their mental and physical well being.
First, back in March and April, there was uncertainty about the bar in general. Would it happen? Would it be postponed? While the class of 2020 was already dealing with moving classes online, dealing with non graduation, losing jobs they had already secured, now there is the uncertainty of the bar exam.
Sure, we were all dealing with uncertainty at that point, and still are. But I feel like this is different. This is going from looking forward to celebrating something you’ve worked so hard for, and potentially having your future figured out, to complete uncertainty.
In late April, and early May, states started announcing their decisions. Some were going to go ahead with July, some were postponing until the Fall. For those states that postponed, this meant students were now burdened with the stress of potentially changing housing plans, or figuring out how to finance their life (you know, a roof over their head and food to eat) for two extra months.
Added to that, some states like Rhode Island, didn’t even announce a decision until June! Leaving students wondering if there would be a bar exam to sit for, and if not where might they take the bar?
In the midst of all of this some states were restricting seats, leaving students to wonder if they would even get to take the bar exam. And oh right, the fees paid were non refundable. Because hundreds of dollars is nothing to a student, right?
Now, added to all of this is the fact that it’s almost July, Covid-19 is still spreading, and in most states the cases are rising. But some states plan to go ahead with the July exam. With hundreds of people in a testing site. And no guarantee that they can provide for safe accommodations. In fact, multiple states have said that masks will not be allowed while testing, and some states are requiring test takers to sign waivers.
Yes, we all had to take the bar, yes, it’s hard for everyone. But we didn’t have to deal with this. We didn't have to wonder if we'd contract a potentially deadly virus. (On a side note, yes, the young people can die from Covid, and not everyone taking the bar exam is young. On top of that, let's not forget that many of our bar takers might be at high risk, despite age)
Students don’t know if they’ll have seats. Students don’t know if they’ll be safe. Students don’t know if they are risking their health and lives in order to be licensed. This is too much to put on the newest members or our profession.
Also, at least 3 states have announced that test takers must quarantine prior to taking the bar. While I appreciate this from a health and safety stand point, most bar takers can not afford to take stay in a hotel for 14 days. And, if they choose to not take the bar, they’re not getting a refund.
However, I think someone preparing for the bar, sums it up a bit better than I can. (I have linked instead of sharing every tweet)
This is a really great and informative thread, that gives us insight into what students are going through. I haven't put every tweet here, because it's long. But please go to the link to read all of it.
Students are worried about their health. They are worried about their livelihood.
There are so many attorneys out there with a “life was rough for me, so it should be for you too” attitude. They have literally told these students to suck it up and deal with it. But none of us, I promise, have had to deal with this. This is much more than the usual stress that bar students are under, and we need to recognize that.
I’m at a loss, personally. I can’t imagine the stress that this class is under. There is nothing I can do individually but advocate for this class and support them. And I think, at the very least, we should all be supportive and empathetic, and understand that what we are asking of these bar takers is simply too much.
Thursday, June 18, 2020
With some states moving to online bar exams, four (4) academic support educators have teamed up with the ABA Journal to share top-notch tips for expertly preparing for success on online bar exams. Here's the link to read the expert suggestions from Prof. Goldie Pritchard (Michigan State), ABA author Sara Berman (AccessLex Institute), Prof. Courtney Lee (University of the Pacific - McGeorge), and Prof. Joe Regalia (UNLV): https://www.abajournal.com/academic-support-experts-offer-advice/.
Monday, June 15, 2020
One year ago this month, I wrote my first post for the ASP blog. And while it seems like only yesterday that I began my quest to bombard readers with my weekly musings, I have decided to step aside to make room for other voices to be heard through this forum. Today will be my last post as a regular contributing editor, and I will use this opportunity to reflect on the wonderful learning and growth experience that the year has brought.
I’ve learned that:
Education and advocacy are not parallel paths, but rather an important intersection at which the most effective teachers are found. I left a high stakes commercial litigation practice for a role in academic support. I naively believed that an effective teacher had to be dispassionate and objective and more focused on pedagogy than on legal advocacy or controversial topics. However, I grew to realize that the very skills that made me an effective lawyer still guided me in the classroom to teach my students and to open their minds to new perspectives. My realization was affirmed when ASP whiz, Kirsha Trychta, reminded us that the courtroom and the law school classroom are not that different.
Anger can have a productive place in legal education and scholarship. I don’t have to conceal or suppress my passion to be effective as a scholar. I am angry on behalf of every summer (or fall) 2020 bar taker. I am bothered by states that are so tethered to tradition that they refuse to consider the obstacles and challenges of preparing for a bar exam during a pandemic. It troubles me to see law schools close the doors to their libraries and study spaces, and yet expect 2020 bar takers to perform without the benefit of quiet study space and access to internet and printing. I am flat out disgusted by the notion of forcing law students to assume the risk of death to take the bar exam. And I waive my finger to shame the states that have abandoned exam repeaters and that waited or are still waiting to announce changes to the exam dates and format after the bar study period has begun. These states have essentially moved the finish line mid-race, and our future lawyers deserve better. But thanks to the vocal efforts of others who have channeled their righteous anger into productive advocacy and scholarship, I’ve seen states like Indiana, Michigan, Nevada, Utah, and Washington emerge as progressive bar exam leaders in response to a crisis.
Silence is debilitating. Like so many others, I was taught to make myself smaller, to nod in agreement, and avoid topics that would make others uncomfortable. The untenured should be seen, not heard. I am the person that I am because of my collective experiences. Stifling my stories and my diverse perspective would be a disservice to my calling and to the next generation of lawyers who need to be met with a disheartening dose of racial reality. As soon as I showed the courage to speak up and step out of other people’s comfort zones, I found that I was not alone. My ASP colleagues, like Scott Johns, Louis Schulze, and Beth Kaimowitz and others, were right there speaking out too.
Glass ceilings become sunroofs once you break through them. In the last few years, I have seen more and more of my ASP colleagues earn tenure or assume tenure track roles. And while a job title or classification, will never measure one’s competence or value, our communal pushes for equity are visibly evident. ASP authors continue to make meaningful contributions to scholarship in pedagogy and beyond. Thank you to Renee Allen, Cassie Christopher, DeShun Harris, Raul Ruiz, and the many, many, many others who I can’t name but whose work I’ve read and admired. With varied voices, we are paving the way to enhanced recognition and status in the academy, and with mentorship and writing support we are forming the next wave of formidable ASP bloggers, scholars, textbook authors, and full professors.
June 15, 2020 in About This Blog, Academic Support Spotlight, Advice, Bar Exam Issues, Bar Exams, Current Affairs, Diversity Issues, Encouragement & Inspiration, News, Publishing, Weblogs, Writing | Permalink | Comments (0)
Sunday, June 14, 2020
The Black Lives Matter movement has swept the country and the legal profession. While our country confronts dual public health crises of racism and pandemic, our law school graduates are faced with an unknown future with the legal profession and the bar exam. As academic support professionals, we have a role to play in helping graduates pass the bar and participate in transforming the law so that Black lives matter.
Many graduates are too distraught to face the bar exam, and we know they need hours of focused study and rule memorization to pass. We also know that very few of the rules they will be memorizing are designed to dismantle racism. In fact, many of the rules tested on the bar exam entered through the common law at a time when Black people had “no rights which the white man was bound to respect”. Dred Scott v Sanford, 60 US 393, 407 (1857).
To pass the bar exam, law school graduates need to understand that the law does not have a race-neutral history. When Black graduates, and graduates from low-income and non-white communities, try to answer bar exam questions based on their own values and experience, they often get the answers wrong. When they are taught to see the questions, not from their own point of view, but from the point of view of those who wrote the rules, they often do better.
We should help our students memorize rules for the bar exam, but we also need to help them understand the origins of these rules in enabling institutional racism. Many of the bar exam questions are focused on issues related to large corporations, exchanges between merchants, and the interests of wealthy clients. With a legal history of racially restrictive covenants and segregation, Black people currently have less than ten percent of the wealth of whites. Few questions on the bar exam relate to police brutality, racial profiling, civil rights, low-income tenants, poverty law, employment law, consumer protection, or racial discrimination.
To make Black lives matter in the legal profession, we need to actively work to change the law school experience and the bar exam. Changing the content and the character of the bar exam is one step on this path. We must help our courts and bar examiners to become more responsive to the legal needs of Black communities.
When confronted with disparate pass rates for Black law school graduates, bar examiners often respond that the exam is race-neutral. In employment discrimination law under the Civil Rights Act, if a policy has a disparate impact, it must be justified as a business necessity. However, this standard has not been applied to the bar exam. The National Conference of Bar Examiners’ own studies indicate great disparities between what the bar exam tests and the skills lawyers need. These disparities often disadvantage Black law graduates and serve as a barrier to access to the legal profession. Rather than justifying these inequalities, we should find ways to eliminate them.
At this time, we must help our law graduates pass the bar exam as it is now. In order to pass this year’s bar exam, they should understand that the rules of law do not have a race-neutral history. In the future, we must also work together to create a path to the legal profession where Black lives matter.
(Guest Blogger - Beth Kaimowitz)
Wednesday, June 3, 2020
Dear Bar Takers,
I’d like to talk to you about breaks. I see you. You are overwhelmed, you are stressed. Some of you don’t even know if you have a seat. Let me stress – I see you.
In addition, I’d like to acknowledge that there are a million things making it hard to focus right now. I’ve been struggling to focus, and I’m not studying for an exam. The non bar exam world is causing a great deal of anxiety, anger, sadness, and fear. For some, more than others. It’s understandable to have those emotions, and not feel like you can 100% focus on the exam in front of you, especially if you aren’t even certain when you’ll take it. That’s all valid.
So, I want to talk about breaks, and why they are important. Taking frequent breaks helps improve your memory and focus, and helps reduce stress. Basically, research tells us that your brain can only focus for so long. It doesn’t matter how studious or determined you are, the human brain will not stay focused for 8 hours straight. In fact, if you aren’t taking practice exams to work on your stamina, I suggest taking a short break every hour or so. This is not my advice, this is advice from the neuroscientists.
Specifically, if we don’t take breaks, our brain gets fatigued. Once an hour, if not more, stand up and stretch. Or go for a brief walk. Switch your focus. All of these things help you improve memory and focus.
Also, taking breaks for mental health is ok. In fact, it’s encouraged. If you are getting frustrated with a topic of a question, take a break. Walk away and grab lunch. Take a walk outside. Just take a break from the frustration. If you push through, and continue to attempt to study while frustrated, your brain is not processing the information. It’s also ok to plan for entire mental health days. Your brain might need a longer break, and that’s ok too. If you are struggling to focus, maybe current events or family worries are weighing on your mind, step away. Do something for yourself and come back to studying later.
Finally, taking breaks for your physical health is ok and encouraged as well. I can’t tell you how many times I’ve had students get sick, maybe a bad cold for example, and they refuse to take a break. Not only are they not letting their body heal, which is not ideal for the long run, but your brain isn’t as focused as it could be, nor is it properly processing information. It’s far better to take a few days off, fully heal from the cold or other illness, and then dive back in feeling better.
So, in summary, while it is important to get in enough study hours – which are, let’s be honest, many – you owe it to yourself to take care of yourself. This includes breaks, and taking time for yourself. It’s also ok to be human, and give yourself permission to have unfocused days.
In addition, reminding yourself of your motivation is going to help improve your memory and learning. Write a litter to yourself, or a post it to put on your laptop. Why did you go to law school? Why do you want to take the bar exam? Yes, I know, you want to take the bar exam so you’re licensed. But why do you want to be licensed. Keeping your goals and motivation in sight, literally, will help you focus and learn.
I’d also like to stress the importance of a different kind of break. We learn best by doing different things. So, don’t just focus on video lectures. Or do an entire day of MBE questions. (Unless you are taking a practice test.) Mix it up. Spend 30 minutes writing an essay, and then review it. But then, do 15 MBE questions. Then watch parts of a video. The more you jump from one item to another, the better your brain is working, and the less likely you are to suffer from fatigue and lack of focus. The same goes for the subjects. Many students think they should spend a day, or even a week, on only one subject. But you actually stretch your brain, so to speak, by doing a mix of subjects.
Finally, despite my profession as bar professor type person, I can assure you that the bar exam is not the most important thing in the world. It really isn’t. Yes, you need to pass it to be licensed. And I want you to be licensed! But it doesn’t define you as a person, and if you fail, or have to take time off, that won’t even define you as an attorney. So, what I’m saying is that if this is not the right time for you to take the bar exam, that’s ok. There is no shame in that. You need to do what works best for you, and if that means delaying the exam because you are afraid for your health, you are focused on other things, too anxious or unfocused right now, or any number of reasons, the exam will still be there in 2021.
No matter what you choose, good luck! I look forward to seeing you as a colleague soon.
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
One tap mobile
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+13017158592,,92885330059# US (Germantown)
Join Breakout A: Social Distancing Measures
Meeting ID: 914 6367 4076
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Join Breakout B: Limited Seating and Priority Seating
Meeting ID: 985 7952 4155
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+13126266799,,98579524155# US (Chicago)
Join Breakout C: Limited Licensure
Meeting ID: 910 4928 6166
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+13017158592,,91049286166# US (Germantown)
Dial by your location for any meeting using the meeting ID #
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888 475 4499 US Toll-free
877 853 5257 US Toll-free
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.