Monday, February 10, 2020
And you'll finally see the truth, that a hero lies in you. Mariah Carey and Walter Afanasieff
Every lawyer who has completed the journey that begins with law school and ends with a multi-day bar examination knows the anxiety, the overload, and the sheer exhaustion that is bar study. There is no shortage of horror stories involving the bar exam.1 Virtually every attorney has a bar-related cautionary tale. Some of these tales recount the angst of making up legal rules to answer an essay question about which they had no clue how to answer.2 Other tales may involve the heart-stopping panic brought on by “Barmageddon” when technology glitches prevented examinees from electronically submitting their essays.3 The bar exam is a grueling rite of passage that no attorney wants to revisit or repeat.
But not accounted for in the published bar pass lists and statewide bar statistics is a group of unsung heroes that contribute in meaningful ways to the attorney rosters of each state. This group is largely unnoticed, unnamed, or misnomered as law school academic support staff, professional development personnel or even student services providers. These gifted folks, whether or not named or recognized, essentially relive the nightmare that is bar prep two times per year, every year, without break or exception, and without earning any additional licensure.
So, here’s to the bar prep heroes who, despite already having at least one law license, restudy, listen anew to lectures, and peruse endless pages of commercial outlines in search of changes to a majority rule or a better way to explain testable material. Hat tip to my colleagues in the trenches who biannually endure the round-the-clock cries for help, the endless essay grading, and the ulcer generating impathic nervousness for the aspiring attorneys in whom we are emotionally invested.
As the end of February draws nigh, you will soon return to regular sleep patterns and be able to answer the 100+ unread messages in your inboxes. Yes, all will be back to normal . . . except for the two to three months filled with delightfully dreaded anxious anticipation of released results. You are the heroes on the other side of bar prep.
 Marsha Griggs, Building A Better Bar Exam, 7 Tex. A&M L. Rev. 1 (2019).
 Karen Sloan, Software Maker Settles Barmageddon Class Action for $21 Million, NAT’L L.J. (May 15, 2015, 12:26 AM), https://www.law.com/nationallawjournal/
Wednesday, January 15, 2020
It's that time of year, where you might start to feel overwhelmed by the amount of bar review tasks in front of you. First all, this is not at all unusual, and you are not alone.
Second, a brutally honest fact - statistics show that the more bar prep course a student completes, the higher their chances of passing. For every single percentage point of your commercial bar course that you complete, your chances of passing the bar also increase.
However, whilst it is true on a general level that you need to be working hard to cover as much of that course as possible, it is also worth remembering that you are not a statistic. Students are unique individuals, not numbers. Most importantly, whilst working hard, you need to ensure that you keep your health and sanity for the end of Feb.
So, all that being said, here are a few tips if you find yourself getting overwhelmed:
- One thing at a time.The best thing to do when feeling overwhelmed is to take one step at a time, and DO one thing at a time. Yes, it’s good to have a big picture idea of what you need to accomplish between now and the end of Feb, that’s what will keep you on target. But, on a day to day basis, you need to focus on what you can do in the next 5 minutes, the next hour, the afternoon. Make lists for yourself, or use the ones given to you by the commercial prep companies (which are usually online) and tick one thing off at a time, even if it’s a small thing.
- Prioritize active learning. Don’t get bogged down in reviewing outlines, making outlines, making flashcards, etc. Your priority should always be practice essays (especially if you will get feedback) and practice MBE questions, not to mention, practice MPT. As for the law, of course you need to know it, and remember it, but you will remember it better by writing about it, with a unique fact pattern, then you will simply by reading the law, or even putting it on a flashcard. Succeeding on the bar exam is a SKILL, so you need practice. You wouldn’t prepare for a hockey game simply by reading about hockey; you’d get on the ice and run skating drills, you’d have practice games. The bar isn’t really any different.
- Extra Questions. I often get questions about whether students should be doing MORE, or a good source of extra questions. The right answer to this is going to vary from student to student. I always think more questions are better, in general, and varying the types of questions you are doing can be beneficial. However, you don’t need to pile on extra books and questions for the sake of doing so. Focus on getting through your normal schedule first, if you get through that, and you are not completely exhausted, then consider extra sources of questions.
- Don’t pay attention to what everyone else is doing.Remember, you are not a statistic, and there is no cookie cutter bar student. Comparing notes with others on what works, or what doesn’t, is fine, but don’t judge yourself by how many hours someone else is in the library, or how many sample questions they are doing, or whether they’ve bought 10 extra books. This is like the first year of law school; everyone is different, and you might be working at a different pace, or in a different way, from someone else. That’s ok!
Remember you still have over 5 weeks left, this is not a sprint, it’s an endurance race. That means pacing yourself. Working hard, yes, but also remember that working smarter is more important than just working harder.
Good luck, you got this!
Monday, January 13, 2020
The Uniform Bar Examination (“UBE”) has juggernauted from an idea to the primary gateway for entry into the practice of law. To the resounding support of law graduates and law schools, a supermajority of states has abandoned individual state law exams for a uniform exam written by a private entity. The UBE is the exam of the future and I anticipate that at least three more states will have adopted the UBE by year end. The UBE remedies many voiced complaints about varying degrees of exam quality and exam difficulty across states. Perhaps the most touted feature of the UBE is score portability.
UBE takers may "port" or transfer their scores into other UBE states, thus, relieving examinees from the arduous chore of having to sit anew for a bar exam. However, the promise of score portability is allusive at best. Transfer procedures vary by state. The fees to transfer one’s UBE score may be as high as $1700, possibly more than the cost of taking the bar exam in the transferring state. For a majority of students who exit law school burdened with student loan debt, these transfer costs will make the promise of portability unrealizable.
According to attorney and bar prep professional Ashley Heidemann, “the UBE is not as portable as law students are led to believe.” Heidemann feels that the promise of portability is highly deceptive to law students who believe that a widespread uniform exam means that once licensed, UBE attorneys will be able to transfer into other states at any time. “The biggest misconception students have,” says Heidemann, “is that UBE scores can be transferred to a different UBE jurisdiction at any time. In reality, UBE scores are only good for generally two to five years, meaning one cannot transfer a score from one state to a different UBE state after their specified time period is over.”
Even staunch supporters of the UBE seem to think that the UBE has not yet reached its greatest potential. UNLV Professor Joan Howarth advocates for a uniform cut score, citing that a six point score differential could effectively exclude hundreds of bar takers from the practice of law. Melissa Hale, Director of Academic Success and Bar Programs at Loyola University Chicago School of Law says, “I’d love to see a more uniform process [regarding admission and transfer policies].” Hale, who sees the UBE as an improvement over predecessor exams and self-identifies as pro-UBE, wants to make sure that students understand the score transfer process and that it is “not without hurdles.”
As more and more states adopt the UBE, academic support professionals will need to stay in the know and keep students informed about the true costs and limitations of score portability. That is — until or unless a uniform cut score becomes a reality. Stay tuned, we may be closer than we think!
 Marsha Griggs, Building a Better Bar Exam, 7 Tex. A&M L. Rev 1 (2019).
 Interview with Ashley Heidemann, President, JD ADVISING LLC (Mar. 25, 2019).
 Joan W. Howarth, The Case for a Uniform Cut Score, 42 J. LEGAL PROF. 69, 72 (2017).
Friday, December 13, 2019
Basketball player "...Duncan Robinson was open and didn't shoot." So reads an article about the "Most Improbable Player in the NBA." The Wall Street Journal, Dec. 13, 2019, p. A14.
In response to Duncan's decision, "...[H]is coach immediately called timeout. 'That's selfish.... You're being selfish if you don't shoot.'" Id.
For our February 2020 takers, bar prep begins for many next week. But, as we approach bar studies, if you're at all like me, I'm much more comfortable being on the sidelines, not taking shots so to speak, watching others talk through hypothetical scenarios and work through practice problems.
That's because I often don't feel like I'm ready to take shots because I don't feel like I know enough to play the game.
Instead, I try to learn to "play basketball" by reading about basketball and by watching others play basketball...a sure recipe to fail at basketball.
Let me put it concretely. With respect to bar prep, I'm much more comfortable listening and watching professors from the sidelines as I observe them work through bar exam problems and scenarios.
However, take it from Duncan (who went from high school to a small time college basketball program to a big time basketball program to a minor league professional basketball team to now a multimillion dollar contract with a big time professional basketball team). Id. What was the key to Duncan's success? As Duncan indicates, "I was having a tough time figuring out what was a good shot--and I quickly realized that everything was a good shot...I needed to literally shoot everything. [my emphasis]" Id.
For those of you beginning to prepare for the winter bar exam, take Duncan's advice. Take every shot at learning. Know this: That every problem that you work through, every time you close your lecture book and then force your mind to recall things that you have learned, every time you take action based on the bar review lectures that you are hearing, you are becoming a better "shooter", getting closer to your goal in passing your bar exam.
So, be of good courage as you boldly study for your bar exam. After all, you're not going to be tested about what you saw from the sidelines. Instead, you're tested on your ability to play the game, to score points, to solve bar exam problems. Consequently, take every shot you can, everyday throughout this winter, as you prepare for success on your bar exam this upcoming February 2020. Oh, and by the way, Duncan missed lots of shots on the way to success. But, he kept at it. You too, keep at it, because as it's in the midst of our missed shots that we learn how to perform better!
Wednesday, December 11, 2019
It is that time of year again! If you are taking the bar exam in February, you have either started studying, or you are thinking about a study plan. However, the holidays are also fast approaching, and for most people, that’s a busy time of year. It’s easy to feel pulled in multiple directions, whether it be from end of the year work related items (if you are working while studying), or family obligations, or just the excitement of the season making it hard to focus on mundane things like contract and property law.
First of all, breaks are okay. If you have already started studying, it is okay to take time to see your family, or even celebrate New Year’s Eve! You are not obligated to be in the library 24/7 from now until the end of February. Also, breaks are good for your mental health, and will help you get through the next couple months. While you shouldn’t take multiple days off, or entire weeks, spending time with loved ones is not something you should feel guilty about.
Even without the holidays, taking time to decompress is good for you for multiple reasons.
- Mental Health: Overall, spending time with loved ones, or participating in self care, is generally good for our mental health. It can help us reduce stress, and provide much needed support. Both of these things ultimately aid in test taking. While good stress can offer adrenaline, which can be important during a long exam like the bar, too much stress can shut us down, and impact our focus. In addition, things like anxiety can lead to poor decision making, either during studying or the actual exam. So, taking time to care for yourself, in whatever form that takes, is necessary for success on the bar exam.
- Learning and Memorizing: Taking breaks actually helps in the learning process. First, mindfulness, or meditation, on a regular basis improves test scores and helps with memory and retention. While this study was done with the GRE, there is no reason it can’t work with the bar exam. Also, breaks, or resting, can actually help you retain information. Your brain needs time to process what it has just learned.
Finally, if you are feeling overwhelmed, or feeling like you are “behind”, focus on the small tasks you can accomplish. Students often get caught up in thinking they have to set aside huge blocks to study, but that’s not true. You can do an MBE question, and review it, in 5 minutes. You can take a multiple choice question, and turn it into a small essay (take the answer choices off, and write out the answer using IRAC) in 5-10 minutes. You can review elements of a law in 5 minutes. And in fact, doing those things in small chunks will help with things like memorization.
Mostly, don’t feel guilty for taking time to be with family and friends, especially during this holiday season. Getting through law school, or studying for the bar exam, is all about balance.
Happy Holidays, and Happy Semester’s End!
Monday, November 4, 2019
Logically it makes no sense that, in today’s world, failing at something because you tried will tarnish you with a negative social label. . . . [T]o continue evolving, the stigma associated with failure has to be shaken off and be replaced with positive personal development. When you fail at something, hopefully you can recogni[z]e why and where you failed, so that next time you can move forward accordingly. – C. Montcrieff
Bar takers in all but one state have received results from the July 2019 bar exam. Although California examinees may have to wait another week for results, with increased MBE scores reported nationally, bar passage rates (overall) are deliciously higher than recent past exams. What better way to transition to the semester wind down than with news of newly licensed attorneys joining the ranks of your alumni rosters!
I am elated and overjoyed for my students who find their names on the bar pass list. I understand the sacrifice, the grit, the fear, the pressure, the exhaustion, and the anxiety that are necessary conditions precedent to bar passage. I actually get teary-eyed as I scroll through the social media feeds of newly minted attorneys that contain expressions of joy and gratitude for the obstacles they overcame and support they received.
My joy is tempered by the heartache I feel for those who fought so valiantly and fell short of the state cut score. It never ceases to amaze me how a day that brings elation can, at the same time, end in devastation. Those of us doing ASP work must manage that range of emotions altogether in the same day. We collect data and publish articles on interventions that lead to bar success in licensure candidates with known failure indicators. We are experientially trained to manage bad news and to earnestly encourage unsuccessful students to try anew. But how does the reality of our calling square with the purpose of our profession?
We must examine the role and reality of stigma in bar exam failure and determine where, how, and if, it fits into the notion that diversity in the legal profession is not solely about racial and socio-economic inclusion. The diversity promoted by effective academic support programs includes intellectual disparities, physical and emotional disabilities, linguistic variations, and learning differences.
The definition of academic and bar success is changing. Success for some may be sitting through a two-day exam without the testing accommodations relied upon during law school. For others, it can be completing an exam scribed in a language other than the test-taker's native tongue. For many bar takers who graduated in the bottom quartile of their law school classes and/or with low entering LSAT scores, success may be coming within 5-10 points of a passing score, that all published statistics said that they could not achieve.
I dare not suggest that legal educators dismiss or ignore bar failure, but I challenge the status quo about how we frame bar failure as part of professional identity formation. Moved by the MacCrate Report, law teachers have become more intentional about teaching, and have begun to support law students’ professional identity formation inside and outside of the classroom.1 I see no reason for that support to end with the bar examination. As we normalize struggle2, we must communicate bar failure as a temporary status and not as an indelible component of one’s professional identity.
1 Susan L. Brooks, Fostering Wholehearted Lawyers: Practical Guidance for Supporting Law Students' Professional Identity Formation 14 U. ST. THOMAS L.J. 377 (2018).
2 Catherine Martin Christopher, Normalizing Struggle, ___ Arkansas L. Rev. ___ (2019).
Tuesday, October 1, 2019
July 2019 bar exam results are not due to be released in New York for a few more weeks, but already here in Buffalo we have glad tidings, for one of our students took the Florida bar exam and has learned that she has passed. What a thrill! One that will soon be experienced by many others across the land.
Is there anything else that prompts the same surreal combination of pride and relief? In an instant, a person’s very definition changes. They go from not possessing a certain authority to possessing it (at least after other formalities are met). Is it any wonder that the storied Jonathan Harker, wandering alone in a foreign land and distracted by the strangeness of it all, forgot for a moment his own momentous achievement?:
What sort of place had I come to, and among what kind of people? What sort of grim adventure was it on which I had embarked? Was this a customary incident in the life of a solicitor’s clerk sent out to explain the purchase of a London estate to a foreigner? Solicitor’s clerk! Mina would not like that. Solicitor—for just before leaving London I got word that my examination was successful; and I am now a full-blown solicitor!
Harker’s momentary pleasure at the memory of his bar passage is soon dampened, however, by the cold foreboding of the great estate he stands before – and no wonder, for only a few minutes later he meets the master of that castle, who greets him with the words, “Welcome to my house! Enter freely and of your own will! . . . I am Dracula. . .”
Whatever horrors Harker had to face next, at least he had made it past the doubt and anxiety that many people feel while waiting for their bar results to be revealed. Consider the unfortunate Mitch McDeere, the latest Harvard Law graduate to be hired by the high-end Memphis law firm of Bendini, Lambert and Locke. One autumn afternoon, Mitch is called unexpectedly into an urgent meeting:
Lambert, Avery, and what appeared to be most of the partners sat around the conference table. All of the associates were present, standing behind the partners. . . . The room was quiet, almost solemn. There were no smiles. . .
“Sit down, Mitch,” Mr. Lambert said gravely. “We have something to discuss with you.” . . . He frowned sincerely, as if this would be painful. “We’ve just received a call from Nashville, Mitch, and we wanted to talk with you about it.”
Poor Mitch immediately guesses what this is all about:
The bar exam. The bar exam. The bar exam. History had been made. An associate of the great Bendini firm had finally flunked the bar exam. . . . He wanted to speak, to explain that he deserved just one more chance, that the exam would be given again in six months and he would ace it, that he would not embarrass them again. A thick pain hit below the belt.
“Yes, sir,” he said humbly, in defeat.
Lambert moved in for the kill. “We aren’t supposed to know these things, but the folks in Nashville told us that you made the highest score on the bar exam. Congratulations, Counselor.”
The room exploded with laughter and cheers.
Surprise! Not what Mitch was expecting. Unfortunately, Mitch’s satisfaction is nearly as short-lived as was Harker’s, for less than two pages later, in John Grisham’s The Firm, Mitch McDeere meets an FBI agent who explains that the Bendini firm is mostly a front for the criminal activities of the Chicago Mob, and that attorneys who try to leave the firm always end up dead.
Dracula and The Firm were both sensationally popular novels, which suggests that there is something highly resonant about the notion of passing the ultimate test of professional ability, only to be led directly into a world of evil and mortal danger. I suspect some people enjoy the irony – He’s supposed to be so smart, but he wasn’t smart enough to avoid the King of the Undead or the Capo di Tutti Capi – and other people appreciate the moral question – Does mere intellectual knowledge even matter when a person is faced with a threat to his life and soul?
But law graduates might see yet another layer to these tales: After all this hard work to pass the bar, over three crushing years in law school and ten blistering weeks of bar preparation, is my “success” just going to take the form of an indenture to forces that seek only to exhaust my vitality to feed their own appetites? True, most attorneys do not end up working for vampires or gangsters, but even a wholesome job for a decent employer can feel like purgatory to someone whose interests and aptitudes lie elsewhere. When our students are no longer our students, when they have taken and passed the bar and are out there gainfully employed, is that the end of their stories?
There might be a brief frisson in thinking so. Isn’t that why people read suspense stories? But if there are two last messages we can leave our students with, they are that passing the bar is both an ending and a beginning, and that the skills they’ve learned in meeting that particular challenge will be skills they can use in meeting future challenges as well. If they can pass the bar exam, they can overcome anything – a misfit job, a toxic employer, even a threat to their lives and souls.
And Jonathan Harker and Mitch McDeere are evidence of this, because they each survive their ordeals. In both Dracula and The Firm, the heroes triumph by relying on three core competences – the same three competencies we emphasize in preparing our own students to pass the bar and to perform well in practice: knowledge of the law, application of sound personal judgment, and reliance on a network of support. Harker escapes from Dracula's castle by finding an unconventional route to freedom and judging that the risks of flight are smaller than those of remaining in place. Once he makes it back to England, he uses his legal skills to locate Dracula's hidden lairs, documented in a tangle of deeds and conveyances, and then he teams up with a band of friends to track down and eliminate the fiend and his minions. McDeere has the good sense to realize that neither the firm nor the FBI has his safety or best interests at heart, and, turning to a small group of family members of those previously hurt by the mob's activities, devises his own plan to use the legal tools he has learned to escape from the gangsters while passing along the evidence needed to bring down the Bendini firm. Sure, this is all fiction and fantasy, but fiction is often popular because it provides another way of telling a truth.
To everyone who finds out in the next few weeks that they have passed the bar examination: Congratulations, and may the rest of your life be just as successful. Know that you have the ability to make it so.
Monday, September 30, 2019
Titles are granted, positions are given, but it’s respect that earns you credibility. - Lolly Daskal
This is the second in a series of weekly blog posts addressing the basics of effective teaching. Last week, I addressed the importance of knowing your audience, whether from the podium of a classroom or on a larger stage. It is equally important to establish your credibility in the classroom in a manner that fosters learning and builds student rapport.
A teacher is viewed as the subject matter expert in the classroom, whether the audience is a class of third-graders, or third-year law students battling Secured Transactions. But, deference to one’s subject matter expertise can be extinguished with the speed of a hand raise. How we answer questions, or if we answer them at all, matters. Authority is not credibility. While authority may be bestowed or presumed, credibility is earned - one interaction after another. True expertise is evidenced by our ability to field and answer questions, and it can be wholly undermined by our failure or refusal to do the same.
Recent experiences have, for me, sounded the call for a return to the basics of quality teaching. To ensure that our students are well-prepared to pass state bar exams, academic support professors try to develop and maintain subject matter expertise in legal licensure exams. Yet, to my great shock and frustration, the well-reasoned questions of scholars soldiering in the trenches of bar prep have been dismissed and derided by those at the helm of bar examination. When questioned about exam scaling and essay equating, I’ve heard psychometric experts say you’ll just have to trust us. Which begs my point: expertise without earned credibility hobbles the vital relationship between those who have information and those with whom the information needs to be shared.
In legal analysis and bar essay writing, we tell students to use the facts. We teach them to not assume that the grader knows the facts. Effective teachers and presenters, likewise, do not assume that the audience has the facts. Under no circumstance will good teachers be dismissive of student questions. Strong teachers are not afraid to be questioned about the factual basis for their research and conclusions. In fact, they welcome a circumstance for intellectual challenge; they are fulfilled by the opportunity to teach, explain, and enlighten.
As law professors we are shepherding the next generation into the legal profession. Just as we would never silence the earnest question of a student in our class, we must speak persistence to power and not allow our own questions to go unanswered. When laws, policies, Restatements, changes to testing protocols, and impediments to educational access are proposed, we must take audience with those empowered to enact change. We must seek clarity and reason, because we cannot effectively teach that which we do not ourselves understand.
Thursday, September 26, 2019
Common wisdom often suggests more is better...at least when it comes to passing the bar exam. But, just like more medicine is not always better for one's body (and even poisonous when taking too much), perhaps undertaking more bar-tested subjects as a law student is not associated with increasing bar passage results, at least for those most at-risk of not passing the bar exam. And, perhaps avoiding experiential learning courses is not necessary for students most at-risk of not passing the bar exam. Indeed, the latest forthcoming empirical research is all about exploring common conceptions about the relationships among experiential learning, taking bar-tested electives, and bar exam outcomes.
To evaluate these questions, we turn to two empiricist law professors - Robert Kuehn at Washington University and David Moss at Wayne State University - who have just released "must-read" research analyzing often-expressed narratives about the impacts of experiential learning and bar-tested elective courses on bar exam outcomes. Robert Kuehn and David Moss, A Study of the Relationship Between Law School Coursework and Bar Exam Outcomes, 68 J. Legal Educ. (2019) (forthcoming).
First, the authors evaluate the hypothesis that law students should refrain from taking too many experiential learning courses (such as clinics, field placements/internships, and simulation courses), most likely based on the belief that experiential learning crowds out doctrinal learning.
Second, the researchers evaluate the hypothesis that law students should take more bar-tested subjects rather than fewer to boost ones' promise of bar exam success, particularly for those most at-risk of not passing bar exams.
Their research is robust, using regression analysis to evaluate such variables as LSAT scores, UGPA, first-year LGPA, graduating LGPA, experiential learning courses (clinics, field placements/internships, and simulation courses), and bar-tested elective subjects [regression analysis allows researchers to control or take into account the influence of other variables in order to observe whether experiential learning credits and/or bar-tested course work are associated with improved bar exam outcomes].
As indicated in their republished table below, their research spans an impressive 10 year time span, examining first-time bar exam results, for 3891 law school graduates from Washington University and Wayne State University.
Given the depth and breadth of the professors' research, their findings provide food-for-thought for these two questions, at least based on their law school populations, as to whether law students most-at risk of bar failure based on LGPA should take fewer experiential learning courses and/or more bar-tested elective subjects.
As an initial observation, with respect to LSAT scores, both law schools observed relatively consistent LSAT means throughout the course of the ten-year period despite a general downward trend in bar passage rates beginning in or around 2013 and 2014. Consequently, at least based on their law school populations, bar exam declines appear to be unrelated to LSAT admission decisions since LSAT scores remained relatively flat throughout the ten-year research period.
With respect to experiential learning courses, the authors observe that both law schools have seen astounding increases in the number of experiential credits hours that their students are taking over the ten year period, which is not surprising given the American Bar Association's 2014 requirement mandating increased experiential learning requirements in order for law schools to satisfy more recent accreditation standards.
Nevertheless, despite the occasional claim suggesting that law students are taking too many experiential courses, which might compromise bar exam results, the researchers found that there was no statistical association between increases in experiential learning credits hours and bar exam performance (to include those students most at-risk of bar exam failure). Thus, the authors suggest that law schools should not counsel students to avoid experiential learning opportunities.
With respect to bar-tested elective subjects, the authors observed that both law schools have found that more recent bar takers are taking fewer bar-tested subjects than in the past. Perhaps unsurprisingly, the researchers found a modest correlation between taking bar-tested subjects and bar exam outcomes but only for those students with LGPA's that placed them most at-risk of bar exam failure.
However, critically, the authors observed that that was an apparent sweet spot in the number of bar-tested subjects taken by at-risk students such that there was no statistical benefit in at-risk students taking more than the approximate average number of bar-tested subjects at each school (just four electives out of fourteen bar-tested subjects for Washington University students and just seven electives out of nineteen bar-tested subjects for Wayne State students).
In other words, in my reading of their research based on their populations of bar exam takers, law schools might counsel at-risk students to take a handful or so of bar-tested subjects but also advise them that they need not take the entire panoply of bar-tested elective subjects (as more than the average has no empirical benefit of improving bar exam outcomes). And, we should not at all fear encouraging at-risk students from actively participating in experiential learning courses, whether in the form of clinics, internships, and/or simulation courses.
In short, there's much room for curricular exploration by at-risk students without compromising their bar exam outcomes...and that's good news worth thinking about as we meet with our students about their curriculum choices.
Tuesday, September 24, 2019
Last year, one of my international students brought to me a response she had written to a mid-tern exam question. She was wholly perplexed, because the professor had given her a low score on this particular response, and yet, even in looking at the notes the professor had written on her paper, she could not fathom where she had gone wrong. Bizarrely, the more the two of us discussed her essay, the more confused I became about why she had written what she had written. Finally, and wholly by accident, I stumbled across the source of the trouble. At one point the exam question referred to someone being "served", and my student had not recognized this usage as being connected with "service of process". The latter term she understood, but she read the off-hand and abbreviated statement that "X was served" as some form of hospitality, not legal action. ("Have some tea!") This was partly because English was her second language, and undoubtedly also partly because she did not grow up watching movie and TV shows in which frumpy anonymous operatives walk up to the protagonists, slap envelopes against their chests, and say, "You've been served!" For much of our discussion, it had not even occurred to me that this could be a source of confusion, and of course there was no way the student could have known it herself.
I thought about this episode last week, when I was attending a conference hosted by the NCBE, in which some of the presenters were discussing the ongoing evolution of the development of MBE and MEE questions. Part of that evolution includes the elimination, or at least minimization, of the use of terms whose meaning was not tied to the practice of law and might not be recognized by all of the examinees. An example given involved a torts question involving a car that had been damaged in a collision. In the original question, the defendant was identified as "Union Pacific", and it was apparent that the rest of the question was written with the assumption that examinees would recognize Union Pacific as a company that operated railroads, and that therefore the collision under consideration was between a car and a locomotive. The newer, improved version of the question simply referred to the defendant as "a railroad company", thus providing the information needed for proper analysis to all examinees.
Discussion at that point livened up a bit, as presenters and participants brainstormed about other terminology that question writers should considered changing in order to make their questions more accessible. These tended to fall into a few categories:
- References to people, businesses, locations -- generally, things that could be identified with proper nouns -- that might be recognized by some people (but not all people) as possessing some characteristic relevant to the legal analysis. For example, a question that named Gregory Hines as a plaintiff in a case in which his feet were injured might reflect the expectation that examinees would recognize Hines was famously a dancer, and that therefore a foot injury might generate greater damages to him than to an average person. A question that mentions "Reno" might rest on the assumption that everyone knows Reno is in Nevada and gambling is legal there.
- References to technology, fads, or news items from two or more decades ago that most of us who were alive and adult at that time would instantly recognize, but the significance of which might be totally lost on people currently in their 20s. A question that depends on the operation of an answering machine or the effect of a slap bracelet may only be accessible to a portion of the testing population.
- Specialized terms for everyday objects that nevertheless are not commonly used in conversation. A question that depends on knowing the difference between a banister and a balustrade, or between a lintel and a gable, is probably going to lose a portion of the examinees.
It can be hard, when writing exam questions or practice questions, to resist the temptation to make a clever reference or to give examinees the chance for a moment of recognition. But our tests are not supposed to be tests of any vocabulary but legal vocabulary. If an examinee misses the opportunity to demonstrate that he knows the appropriate rule, and can apply it skillful to relevant facts, because he did not have access to the full meaning of the fact pattern so that he could recognize the issue that leads to that rule, then the examinee has been unfairly denied a chance to shine.
Thursday, September 19, 2019
With a hat tip to Prof. Chris Lasch...
This week, a federal judge issued an order, finding that the New York State Board of Law Examiners is not immune under the Eleventh Amendment in a civil action by a bar exam applicant who was twice denied testing accommodations, alleging violations of federal disability law. T.W. v New York State Board of Law Examiners, Memorandum and Order, September 18, 2019, U.S. District Court E.D New York, Case 16-CV-3029 (J. Dearie).
According to the brief facts as stated in the court's memorandum of its order, the plaintiff failed the New York Bar Exam in her "first two tries, causing her to lose a lucrative job...and undermining her job prospects to date," although the plaintiff subsequently passed the New York bar exam when she was finally provided testing accommodations.
The plaintiff raises two federal statutes in support of her claim that the New York bar examiners violated her rights in failing to twice provide bar exam accommodations. First, the plaintiff asserts violation of Section 504 of the Rehabilitation Act, which, roughly speaking, prohibits discrimination by any program or activity that receives federal final assistance. Second, the plaintiff asserts violation of the Americans with Disability Act ("ADA"), which, broadly speaking and in relevant parts, prohibits discrimination by programs and activities by any public entity.
The New York bar examiners filed a motion to dismiss, contending that the federal court lacks subject matter jurisdiction over both of the plaintiff's federal statutory claims in that the State contends that the plaintiff's claims are barred by sovereign immunity under the Eleventh Amendment, which, in general, prohibits suits in federal court against states absent an exception (two of which were raised by the plaintiff in response to the defendant's motion to dismiss).
First, with respect to the ADA statutory claim, the plaintiff asserted that Congress properly abrogated (or removed) state sovereign immunity when Congress adopted the ADA statute.
As indicated by the Court (and as tested in law school exams and bar exams too), Congress can remove sovereign immunity provided that Congress uses unmistakably clear language and provided that Congress adopted the statute at issue pursuant to congressional power to remedy and deter constitutional violations under Congress's post-Civil War 14th Amendment Section 5 power.
With respect to this issue, the New York bar examiners argued that Title II of the ADA was not enacted pursuant to a valid grant of constitutional authority as the commerce clause power, in and of itself, is constitutionally insufficient for Congress to abrogate state sovereign immunity. Despite the interesting constitutional arguments over this issue, the Court did not reach the constitutional issue with respect to the ADA, explaining that the plaintiff's claim under the Rehabilitation Act was sufficient to resolve this case because the Rehabilitation Act and the ADA have the "same legal standards and remedies." Thus, the Court focused only on whether to dismiss the plaintiff's claim under the Rehabilitation Act for lack of subject matter jurisdiction based on Eleventh Amendment immunity.
Second, with respect to the Rehabilitation Act claim, the plaintiff asserted that the State waived its constitutional right under the Eleventh Amendment to not be sued in federal court when the State accepted federal funding for some of its state court programs.
As the Court stated in its decision, the Rehabilitation Act requires states to waive sovereign immunity as a condition of receiving federal funds for state programs for lawsuits brought in federal courts for violations of the Rehabilitation Act. Consequently, the Court next focused on whether the state waived its constitutional rights when the New York court system received, in part, federal funding.
In brief, the Court held that the New York bar examiners had waived sovereign immunity protections from lawsuit in federal court under the Rehabilitation Act because the New York bar examiners were organized as a sub-entity of the New York court system, which did receive federal funding, and therefore, the plaintiff's claim of violation of the Rehabilitation Act by the New York bar examiners could proceed to the next stage of litigation as the court has federal question subject matter over the plaintiff's claim.
With respect to this issue, the decision is a bit complicated and is fact intensive, as illustrated by the Court's citations out of Wisconsin, which indicate that the Wisconsin bar examiners are distant separate entities from the Wisconsin court system. In such cases, the particular government entity must intentional waive its sovereign immunity rights by receiving federal funding, which, apparently, the Wisconsin bar examiners did not.
Nevertheless, with respect to New York, the Court ruled that the New York bar examiners were a sub-compnent agency of the larger state court system such that the New York bar examiners are subject to lawsuit in federal court based on the Rehabilitation Act. As such, the Court denied the New York bar examiners motion to dismiss. Consequently, the plaintiff can proceed with a claim against the New York bar examiners in federal court for violation of the Rehabilitation Act.
For those of us in the academic support field, that raises an interesting question because, anecdotally, even in states using the identical Uniform Bar Exam (UBE), it seems as though there are wide differences with respect to granting disability testing accommodations. But, before you counsel students to sue state bar examiners in federal court for potential violations of the Rehabilitation Act, its important to underscore that that a case in federal court might well turn on a deep analysis of the organizational and legal structure of the bar examiners, specifically, whether they are a sub-entity of a state agency that is the recipient of federal funding. Many or some state bar examiners might not receive any federal funding and might well be independent of a state agency that does receive federal funding such that federal litigation might be precluded against state bar examiners.
Finally, for those of you working with law students (or bar exam applicants), this is a great case to raise with them because it interweaves federal civil procedure and constitutional law. Indeed, this is a problem ripe for a bar exam question. And, for those law students preparing for midterms in civil procedure or constitutional law, this is a great practice problem to test one's analysis.
Sunday, September 15, 2019
The NCBE is close to ending phase 2 of their bar exam analysis. While I know many are skeptical, I do encourage everyone to participate in the process. Our best hope, and maybe only hope, of lasting change to the bar exam is in this process.
The practice analysis survey will be live through the end of September. We should pass this along to our recent alumni. They may be the best people to provide feedback on whether the bar examines what first-year attorneys do daily. Here is the link: https://www.testingtaskforce.org/2019pasurvey/
The NCBE posted on the testing task force blog earlier this week. The recent post explains the completion of phase 2 and what to expect in phase 3. You can read it here: https://www.testingtaskforce.org/2019/09/10/from-practice-analysis-to-test-redesign-looking-ahead-to-phase-three/
We may be at a turning point on the bar exam. Let's do our best to provide the most information possible to help fundamentally change the admission process.
Wednesday, July 31, 2019
For thousands of bar takers, the waiting begins this afternoon; it will be weeks or months until they know the results of the hours and months they have spent preparing for the bar exam. Rebekah Cudé, a gifted trial lawyer and appellate lawyer now serving as Idaho Law's Director of Student Affairs, has shared her practical wisdom with our bar takers for years, and she has kindly given permission to share her post-bar exam advice (lightly edited for this blog) with a wider audience. Director Cudé tells bar takers:
How do I prepare for the possibility that I might not pass the bar exam? I was asked this question a lot last year, and the year before. So, I am going to answer it now, to hopefully help you to stop contemplating this particular possibility as quickly as possible, and maybe recover from the past few weeks a little more quickly as well. I truly hope it helps you navigate the next few weeks in a sane, healthy way.
How should you prepare? Like a lawyer.
A trial lawyer works their heart out getting ready for trial. Researching, writing, thinking. Preparing. Working. Lots of hours of reading. Time spent alone, and with colleagues, trying to come up with the best answers to the challenges posed by the case. And then the trial arrives, and it is hours, days, sometimes weeks of putting all that work to the test, laying it all out there for others to decide. And then the trial lawyer submits it to the jury or the judge. And waits.
An appellate lawyer works their heart out getting ready for argument. Researching, thinking, writing the briefs. Preparing. Working. Lots of hours of reading. Time spent alone, and with colleagues, trying to come up with the best answers to the questions the court might ask. And then the argument arrives, and it is a very intense (though mercifully brief) time of putting all that work to the test, laying it all out there for others to decide. And then the appellate lawyer submits it to the court. And waits.
The way that lawyers learn to survive the waiting is to learn to let it go.
Healthy lawyers realize that it is out of their hands now, and there is nothing more they can do. Once they get a decision, yes, there may be things to be done. But in the in-between, they let it go.
You are that lawyer now. You have done all of the work. You have laid it all out there for others to decide. You have submitted it to the examiners. You are in the in-between. You need to let it go.
You have the rest of a beautiful summer. You have friends and family who have missed you. Some of you have jobs to get to, some of you have jobs to seek out. All of you need to spend some serious time just taking care of yourselves. So, let it go. And maybe enjoy life a bit.
Here's the deal:
If you spend the next 6-7 weeks worried, anxious, and distracted, and you pass, you will have wasted all that time, and you will have missed out on fully enjoying your life. For nothing.
If you spend the next 6-7 weeks worried, anxious, and distracted, and you do not pass, you will have wasted all that time, and you will have missed out on fully enjoying your life. For nothing. AND you will be that much less prepared to rally your energy and resources to do it again.
You don't really know how you did. Trust that it was enough.
Because life is far too short to not enjoy the in-between.
Sunday, July 28, 2019
Social media timelines are aflutter since the California Bar Examiners released, days early, the question order and subjects for the July written exam. After someone “inadvertently transmitted” test information to “a number of deans of law schools,” the CA examiners disclosed the same information to all registered July 2019 California bar takers. The internet remains undefeated and the information now hovers in the public domain accessible to us all for comment and critique. The CaliLeaks, as I refer to them, sent ripples of shock, resentment, and gratitude throughout the community of future, past, and present bar takers.
Dear California Bar Examiners, you did the right thing. You responded to a mistaken disclosure by disseminating the same information to all bar takers, to prevent any actual or perceived unfair advantage. You made a mistake and you owned it. There is a lesson in every mistake and I hope that other bar examiners, and especially the NCBE, with its foot on the jugular of all but a few states, will learn from yours.
In an ideal scenario, the premature and selective leak of confidential information to some law deans would not have occurred. No student should be disadvantaged in terms of familiarity with the exam content, inside knowledge, or the opportunity to pass. We now know the identities and school affiliation of the receiving deans. I am naive enough to believe that respected academic leaders would not compromise the integrity of the bar exam by sharing confidential information about its content. I am also cynical enough to recognize the good reason of those who question whether bar takers from some schools may have received information days before bar takers from other schools. Notwithstanding the many unanswered questions, California's disclosure (the one to all of its bar takers) is something that could have and should have happened long ago.
For goodness sake, the bar exam is based, at least in theory, on fundamental legal principles learned in law school. Knowing the general subject area to be tested is not a dead giveaway to the question content. Bar examiners in Texas have provided general subject matter information for decades. It is a preposterous notion that knowing the subjects that will be tested will lead to a flood of unqualified lawyers. Consider the law school final exam as the loosest conceivable model. Law students know to expect Property questions on their Property final exam, but it still leaves them to their own devices to prudently review the full scope of course coverage from possessory estates and future interests, to conveyances, recording acts, and landlord-tenant rules. Disclosure of the tested question areas should not be Monday morning tea, instead it should be the norm in bar examination. Telling would-be lawyers what they need to know to be deemed competent to practice law isn’t a blunder or a gracious act. It is the right thing to do.
I challenge any lawyer, law student, or law professor to imagine the futility and frustration of completing a full semester of required first-year courses, spending weeks preparing for final exams, and then not learning until the beginning day of final exams which courses will be tested and which will not. As unthinkable as this notion may be, this precisely describes the current practice of bar examination in most states and under the UBE. Time will tell if California’s leak leads to a more reasonable exam process and to less arbitrary bar failure rates. If it does, then others should follow suit. We need a better bar exam and California’s error could be an accidental step in the right direction.
Thursday, July 18, 2019
I recently saw data suggesting that bar passers do things differently in the final weeks of bar prep than those who are not successful on the bar exam. That got me thinking about what I've been seeing, at least anecdotally, in working with students in preparing for their bar exams.
But first, let me be frank. Without hard dedicated work in learning throughout the course of bar prep period, and in particular, during the final week, it's really difficult to pass the bar exam because the bar exam, in the last few years, has become much more challenging, particularly due to cognitive load. See L. Schulze, Dear Practicing Attorneys: Stop Giving Our Bar Students Bad Advice. Thus, it's not just hard work that makes for passing the bar exam. Rather, it's important to make sure to do what is most optimal for learning during the final week of bar prep. See S. Foster, Positive Self-Talk.
So, even with all of the hard work, what might account for the differences in bar passage outcomes for both groups of diligent bar studiers? In short, it must be in the type of work that the two groups are doing rather than the quantity of work. In the last week, bar passers tend to ramp up their practice with lots and lots of MBE questions and essays while also working on memorization while people who are unsuccessful tend to focus on creating perfect study tools trying to memorize every little nuance of law with very little continued practice. In sum, one group is continuing to practice for the exam that they will take and the other group is focused on memorizing for the exam.
But, here's the rub:
It’s a perfectly natural feeling during the last week of bar prep to want to focus solely (or mostly) on creating perfect study tools and trying to perfectly memorize all the law.
But, according to the educational psychologists, there’s something called “desirable difficulties.” You see, when we jam pack our study tools with everything, we aren’t learning much of anything because we aren't making hard decisions about what is most meaningful. And, with everything written down, there's no opportunity for retrieval practice, which is the best form of memorization practice.
So, as a suggestion for the final week, tackle two to three subjects per day. Work through a number of essay questions for each subject. Then, take your study tool and use it for retrieval practice, reading it and then covering it up to see if you can spout out what's in it. Push yourself. You might even take your study tool and, without looking at it, recreate it in a different format, for example, converting it from an outline to a poster, etc. Then, in the evening, work through a batch of MBE questions, pouring and pondering through them. Finally, when you miss something in an essay or MBE question, add that concept to your study tool. As Prof. Micah Yarbrough at the University of Maryland says, your study tool becomes a sort of "bar diary" of your adventurous travels in learning by doing. And, it's in the learning by doing that makes all the difference in passing the bar exam because the bar exam tests - not just memorization - by problem-solving. So, for those of you taking the July 2019 bar exam, focus on practice first and foremost throughout the final week of your bar preparations because you aren't going to be tested on your study tool. Rather, you're going to be testing on whether you can use your study tool to solve hypothetical problems. And, good luck on your bar exam this summer! (Scott Johns).
Thursday, July 11, 2019
It's time to create your own personal handy-dandy bar exam study tools. But, you ask, how, with so many other things to do (and with just a few weeks before the bar exam). Well, here's a suggestion for creating your study tools from scratch in just a few easy steps and in less than 2 hours flat.
But first, let's lay the groundwork. Why should I create a study tool, especially with so many other tasks at hand that demand my attention in preparation for the bar exam in a few weeks?
There are at least three reasons.
First, the process of creating your own study tools creates a "mental harness" for your thoughts. It serves to bring you back to the big picture of what you have been studying the past many weeks since graduation.
Second, the process of creating your own study tools cements your abilities to synthesize and distill the rules that you will be tested on this summer. In short, we memorize (remember) what we create rather than what we read that others have created.
Third, your study tools are, in essence, an organized collection of pre-written, bar exam answers for tackling the hypothetical problems that you will face this summer on your bar exam.
So, let's set out the steps:
1. Grab Your Study Tool Support Team!
That means grabbing hold of the shortest bar outline provided by your bar review company. Shorter is better because less is often more! And, you already have too much to remember.
2. Create the Big Picture Skeleton for Your Study Tool!
That means taking hold of the table of contents in your bar outline provided by your bar review company or the subject matter outlines provided by the bar examiners. For example, the NCBE provides super-short two-page outlines for each subject on what issues are testable. http://www.ncbex.org/meeoutlines. Then, using that skeleton structure, create an overview of the testable issues in your own desired format, whether as flashcards, posters, or outlines, etc.
3. Insert Rule Sound Bites!
Using your bar review lecture notes or subject matter outlines, insert rule "sound bites" for each item identified as testable subjects. Move swiftly. Don't dwell. If you think you you need a rule, don't put it in...because...you can always add more rules later if you see that rule popping up in your practice during the course of the next two weeks. Don't try to create perfect rule statements. Instead, just insert the "buzz words." Feel free to be bold, daring, and adventuresome in doodling or using abbreviations to remind you of the rule. For example, for negligence per se (NPS), my study tool just reads: (1) P.C. and (2) P.H. That stands for protected class and protected harm. By writing out just a few tips to help me remember, I am actually enhancing my study tool (and developing my confidence in being able to recall, for example, the requirements for NPS). Get your entire study tool completed in 2 hours or less! How, you ask? By leaving lots of stuff out because you can always add more later. Here's a tip: It's called "desirable difficulties." You see, according to my arm chair understanding of the science behind learning, optimal learning requires us to push ourselves; it requires mental perspiration, it takes sweat. So, the process of deciding what to put into your study tool (and what to leave out, and, indeed, leaving out lots) enhances are learning because we can't solely rely on our study tools for memorization. Rather, our study tool because a prompt for our memory. So, keep your study tools super-short and crisp.
6. Take Your Study Tool for Lots of Test Flights During the Final Several Weeks of Bar Prep!
Yes, you might crash. Yes, it might be ugly. In fact, if you are like me, you will crash and it will be ugly! But, just grab hold of lots and lots of past bar exam essays and see if you can outline and write out sample answers using your study tools
Finally, let me make set the record straight.
You don't have to make an outline as your study tool. Your study tool can be an outline…or a flowchart…or a poster with lots of pictures...or a set of flashcards, etc.
What's important is that it is YOUR study tool that YOU built from YOUR own handiwork and thoughts! It's got to be personal to you because it's going to be you that sits for your bar exam. So, have fun learning by creating super-short snappy study tools that serve as organized pre-written answers for this summer's bar exam. (Scott Johns)
Thursday, July 4, 2019
On this July 4th holiday, with just under a month to go for this summer's bar takers, let's face the facts:
Most of us are downright exhausted.
And, we should be because we've been working pretty much non-stop since graduation Moreover, given what seems like the insurmountable pressures to learn so much material for the bar exam, it seems like we can't let up with our daily regiment of bar studies. There's just too much to learn.
However, let me offer you an encouraging way to "let up" so that you can feel mighty good about taking a real day off, whether today or this upcoming weekend.
Here's how and why...
Holidays, such as the Fourth of July, are some of the best days of the year to see bar exam problems in living color.
That box of fireworks someone bought at a big-top fireworks tent stand. That was procured through negotiation of a UCC contract for the sale of goods (and the seller most likely provided a secured transaction agreement in order to bring the goods to sale).
That box of fireworks that didn't work as advertised. Well, that might just blossom into a breach of contracts claim or even a tort claim for misrepresentation.
That box of fireworks that were lit off in the city limits. In most cities, that's a strict liability crime, plain and simple.
You see, even when we take a day off from studies, we are live in the midst of a world of bar exam problems. In fact, we are surrounded by bar exam problems because the bar exam tests legal situations that are constantly arising among us. So, it's a good thing to get our heads out of the books occasionally to see what's happening around.
That means that you can completely feel free to relax and take a whole day-off because even while taking a time-off, you will still be learning lots from just living in the world. And, because you've been trained as a professional problem-solving attorney, you can't help but see legal problems in full color everywhere. That's a sign that you are well underway in preparations for your bar exam this summer.
So, please rest assured - bar takers - that in the midsts of a day-off with family and friends, you'll be learning helpful legal principles that you can bank on preparation for success on your upcoming bar exam. And, as a bonus, you'll get some mighty needed rest to recharge your heart and mind too! (Scott Johns).
Tuesday, July 2, 2019
In Michael Crichton's book The Lost World, his sequel to Jurassic Park, the scientist Ian Malcolm observes that the velociraptors -- pack-oriented hunting dinosaurs that have been brought back from extinction through genetic engineering -- behave unexpectedly viciously towards each other. Ordinarily, pack animals would work under some kind of social structure, as, for example, when wolves are led by a single alpha male, disadvantaging other males but minimizing conflict and maximizing cooperation among the pack as a whole. But in the book, the velociraptors are depicted as combative and treacherous, attacking each other at the slightest provocation or opportunity.
Malcolm realizes that even though the DNA used to recreate these creatures captured perfectly the information needed to duplicate the originals physically, there had been no means by which the scientists could have reproduced the social structure that the original animals had developed and passed along over uncounted millennia. Without that information inherited from previous generations, the cloned velociraptors could only work out their own "culture" by trial and error -- mostly maladaptive, destructive error. They might well destroy themselves as a species all over again, just because they had had no chance to observe and learn from those who had come before them.
Every year, we are midwives to a new brood of legal hatchlings, law school graduates who must face the professional equivalent of nature red in tooth and claw: the bar examination. In the majority of cases, this is not an iterative, developmental experience. Most attorneys take the bar exam once and never have to apply its lessons again. But the lessons are real and valuable.
Some of those lessons are relatively easily compiled and organized, so that they can be provided/sold to future graduates through various forms of mass marketing: bar review courses that offer exhaustive compendia of necessary legal rules and concepts, or books that provide tips about studying, memorizing, essay writing, or time management. These can be quite helpful, and they provide a very large portion of the information that determines most applicant's behavior as they prepare for, and then take, the bar examination.
Still, for the most part, this information goes only to the development of the individual's fitness for the exam. Each individual applicant acquires certain needed components -- some knowledge, some judgment, some skills -- in the same way that an individual velociraptor can develop pointed teeth, sharp claws, and a muscular tail. And these components may serve that applicant well on the exam.
What about the social aspect? I see my students this summer gathering to watch lectures together. I hear about them supporting each other when they are confused or frustrated. I know they are pushing each other to stay on track in their study progress. They tell me about meeting up off campus or trading thoughts by phone or online. I know that, for my school at least, something is different this summer: the students are more communicative with me, they are completing more of their assigned work on time, and they are sharing more notes and resources with each other. This isn't something they've read in a book or took down in a lecture. It is the social structure of this class of legal hatchlings, developing in a healthy way.
It may only be an incremental change, increasing engagement or completion or quality by a few percentage points. But such changes, over time, is the definition of evolution. But it can only happen if we have some way of passing it along, some analogue of DNA that transmits the essence of this slightly modified social structure along to the next generation of hatchlings.
In a way, one aspect of our existence as Academic Success vectors is to carry this information, as best we can, from class to class, like plasmids shuttling genetic material from one bacterium to another. We can tell next year's graduates what this year's graduates did, ask them to trust us and to try the same strategies. To the extent they do trust us, and to the extent that we know and can articulate the changes to the social structure, this can be helpful.
We can also ask our alumni to transmit directly, inviting them to return to the classroom next year and to share their experiences with the following class. I did this twice this past spring semester, and my students seemed very responsive, asking lots of questions to help them suss out what to expect in the summer. Later this month, I plan to record some video of students engaged in studying, or willing to open up after a lecture or an exercise, so that my future students can get a better idea of how these students worked alongside each other.
It is great to seem some improvement in outcomes for our students, and often we can point to better development of individual skills as a contributor to this improvement. But just because changes to the social component of performance might be more difficult to isolate and package doesn't mean we should let them slip away from year to year, with just the hope that they might be recreated from scratch each time. Some information is transmitted via nucleotides; some information, via letters and numbers; but some can only be passed along, by explanation and example, from one society to its successor.
Monday, July 1, 2019
Don't fight [challenges]. Just find a new way to stand. - Oprah Winfrey
The bar exam is 30 days away. It may feel like you have been prepping for the bar exam all your life instead of six weeks. The 30-day mark is a great opportunity to acknowledge that not all bar takers enter bar study on the same footing. Students without strong academic records may be riddled with self-doubt about their ability to pass. For repeat takers, the mental and financial exhaustion of bar study can be all the more discouraging when experienced a second or third time. Past negative experiences are setbacks of which bar study brings daily reminders. These setbacks are short-term, but under the lens of today, they may seem to indelibly mark one’s chance for future success.
Whether your setback was a previous bar exam failure, or not finishing law school with the ranking or job opportunity that you hoped for, there is a comeback in your future. Maybe your setback is trying to juggle a full-time job and raise a family, while your peers bask in the seeming luxury of full-time bar study and an arsenal of supplemental study aids. Whatever the setback, use it as the gateway to an epic comeback.
If we track the lives of great actors, athletes, political leaders, and other celebrities, we'll find some major comeback that catapulted their career success. Public figures who have mastered the art of the comeback transform their reputations and eradicate public recall of scandals, felonies, fraud, and political defeat. After a comeback, onlookers almost never remember the setback, that is because the setback is never as good or as lasting as the comeback.
Instead of allowing your setback-circumstances to shape your attitude or approach to bar study, let your setback elevate you to greater heights. Pledge today to reform your thoughts. You are not struggling through bar study. You are making your comeback.
Tuesday, June 25, 2019
Now that my law school’s most recent graduates are well into their preparations for the bar examination, I have noticed some of them exhibiting a kind of exasperated relief when they come to talk with me about how their studies are going. They are still feeling a good deal of anxiety about the test, and they are starting to show signs of that deep weariness that comes from focusing intently on a huge task during most of their waking hours. But they are in good spirits, because at long last they are starting to make sense of the Contracts, Property, and Torts classes they took more than two years ago.
“You know,” one of them told me recently, “they are finally just telling me, ‘This is the rule, this is when you use it, this is how you use it.’ All the rules, so I don’t have to extract them or look them up anywhere! I wish that my professor had just done this in my 1L year. That class would have made so much more sense.”
It is a curious system that has evolved in this country: We spend 140-odd weeks getting our students to think creatively, abstractly, and expansively about the practice of law, then push them to spend 10 weeks efficiently and mechanically cramming the specific material required to test into that practice. Imagine if we prepared for other tests in the same way:
Driver’s License Road Test: Students spend three months watching The Road Warrior, Cannonball Run I & II, Smokey and the Bandit I, II, & III, and the entire The Fast and the Furious series. Along the way, they discuss questions like, “Should speed limits always be obeyed, even in a post-apocalyptic world?”, “How is it possible that Burt Reynolds’s license has never been revoked?”, and “Suppose Blackchassis, who is too fast, arrives at an intersection at exactly the same time as Whitechassis, who is too furious. Who has the right of way?” Three days before the scheduled road test, students are permitted for the first time to sit in the driver’s seat, where they discover the existence of turn signals. (Former professors explain that they had not had time to discuss turn signals in class, and in any case, students could look them up in the owner's manual if they ever needed to know about them.)
Test of English as a Foreign Language: Assigned reading includes Infinite Jest, Ulysses, House of Leaves, and Code of Federal Regulations, Title 26. Students are required to write a brief summary of each chapter read; it must be written in iambic pentameter. One week before the TOEFL, the class begins watching “Schoolhouse Rock” and somebody finally explains that a noun is a person, place, or thing.
Presidential Fitness Test: Middle-school students spend the first half of the semester exploring ways to build bulk, stamina, and flexibility in their left gastrocnemius. They learn that the gastrocnemius wasn’t even considered a muscle in early 17th-century England, but had achieved muscular status in both the U.K. and the U.S. by the mid-19th century. There is also extensive discussion about the current treatment of the gastrocnemius as a flexor in most states, but as an extensor in a substantial minority, mostly in the South and New England. In the second half of the semester, the teacher races through the superficial conditioning of most of the major muscle groups of the body, frequently referring back to the gastrocnemius as a model. In the last week before Christmas break, a new gym teacher takes the class outside to run wind sprints in the snow while carrying barbells. She never once mentions the word “gastrocnemius”.
Rorschach Inkblot Test: For ten weeks, the professor requires the students each night to spend three or four hours examining a seemingly random formation of ink on paper. Each day, students come to class asking the professor to explain what they had tried to understand the night before, but the professor only responds with, “Well, what do *you* think it means?” [Wait a minute . . .]
Okay, it's easy to tease our academy for its idiosyncratic way of inculcating an understanding of the law in its students. But most of those students who seem gratified to finally receive concrete and particularized lists of rules to memorize and apply are not wholly frustrated that they had not received them in the first place. They recognize that they would not have known what to do with such a bare-bones framework of legal rules if they had never gone through the mental boot camp of their 1L year, or if they had never explored as much of the range and depth of our jurisprudence as they did in their 2L and 3L years. There are a few students who get hung up on the rote memorization and mechanical application that can, honestly, appear to take up most of the work done in bar preparation. It is always helpful to remind those students that the bar examination is not merely a test of technical ability, like a driver's license test or the TOEFL. It is also a test of judgment, and that, hopefully, is what they have developed, and can tap into, from those three sometimes dizzying years of law school.