Thursday, April 2, 2020
I sometimes wonder which is a bigger issue when it comes to attorney malpractice. Ethical problems or doctrinal issues?
As best I can tell, there are few disciplinary actions based on the elements of a negligence claim or the standard for a preliminary injunction or the elements of a common law marriage. Rather, it seems like most disciplinary actions are based on failing to abide by the rules of professional conduct, often due to time-management issues or substance abuse problems or client fund issues, etc. - all significant concerns that greatly impact the public good. Nevertheless, most states test ethical rules by using a one-day computer-based multiple-choice test -- the MPRE.
Consequently, if a multiple-choice exam suffices to assess ethical rules, why not use a mutiple-choice exam for assessing substantive doctrinal law too, especially in light of the concerns about administering a bar exam this summer due to the COVID-19 pandemic?
So here goes a possible syllogism:
The issue is whether bar examiners ought to consider using a one-day computer-based multiple-choice exam to assess doctrinal legal knowledge and application.
Like situations can be treated alike.
Here, with respect to the bar exam, assessing knowledge about ethical rules for professional competency, which is assessed by most states using a one-day online multiple-choice exam, involves the same sorts of problem-solving analytical skills as assessing knowledge about substantive doctrinal laws.
Therefore, bar regulators ought to consider using a one-day online multiple-choice MBE exam, delivered similar to the computer-based MPRE, to substitute for the current two-day in-person exam.
If my syllogism holds true, then there's no logical reason why states should delay the bar exam this summer because bar examiners can instead reformat the exam as a multiple-choice MBE exam to determine knowledge and application of substantive doctrinal law.
And, there's more great news. There's no reason why bar examiners can't permit law students to take the MBE prior to graduation just like the MPRE...so that law graduates are really practice-ready...at graduation. Wouldn't that be super!
And, as illustrated by the movement of the MPRE to an online testing format, bar examiners also have the expertise to convert the MBE from a paper & pencil exam to a computer-based exam.
Finally, although there are exam security issues raised with using online testing, particularly because online testing for this summer would most likely have to take place under "shelter in place conditions," those concerns can be mitigated by bar examiners as regulators make character and fitness decisions.
In short, it's time to move to online multiple-choice testing.
In my opinion, failing to act now, in the midst of this ongoing crisis, not only harms bar applicants because of the delays that might befall them due to COVID-19, but also fails to protect the public, who disparately need (and will need) legal expertise, now more than ever, as the U.S navigates through this world-wide crisis. Just food for thought!
P.S. Note: The biggest issue with respect to any licensure exam, it seems to me, is whether it actually assess what it purports to assess, minimal competency to practice law. As best I can tell, most states evaluate written exam answers - not for minimum competency - but rather based on a process of rank-ordering exam answers. And, with respect to multiple-choice exams, I suspect that much of the success lies not so much with assessing competency but with developing test-taking skills and the knowledge of U.S. legal culture. But, there seems no inclination to abandon the bar exam regiment. Hence, I suggest retooling the bar exam as a one-day online comptuter-tested MBE exam available for law students to take after their first-year of legal studies.
Saturday, March 28, 2020
There is so much that goes into the making of a bar exam. There are layers of research, accountability, and quality control involved in the drafting of the questions. There is beta testing of the exam content. There is scoring, rescoring, and equating. And there are levels of exam security that rival Area 51. The parties involved range from statisticians to politicians, who cautiously weigh input from the podium, the bar, and the bench. To top it all off, the job of bar examiner – at least at the state level – is a modestly compensated appointment that is held all the while keeping a day job of managing a law practice, or ruling from the bench. Too little appreciation is shown to our almost volunteer bar examiners in times of rest and high passage rates. So, I sincerely and thankfully shout out bar examiners everywhere who discharge an office of such societal importance. And I use the term bar examiners in the collective to include every role, from essay graders to the character and fitness investigators, from the licensure analysts to the admission administrators and honorable members of the board.
Bar examiners have to operate independently and make decisions about scoring and bar admissions that will be unpopular to some. But the examiners must make decisions, and it is the failure or delay in reaching a particularly important decision that has placed examiners under fire across the country. That decision: what about the July 2020 exam?
It is understandable to the legal and lay public that a law license is a privilege not to be indiscriminately awarded. It is equally clear that security protocols must be in place to maintain the integrity of the exam. What is not understandable is how some examiners can fail to make adjustments in the face of the extreme and dire circumstances of the COVID pandemic. In less than two weeks’ time, the nation’s ABA-accredited law schools went entirely online, trained faculty (many with limited technology skills) for online teaching, and adopted pass-fail grading. There is simply no excuse for bar examiners to not be just as creative and as willing to implement emergency protocols for the prospective July 2020 examinees.
This week 1,000+ students, representing all of New York’s law schools, petitioned the New York State Bar Association’s Task Force on the New York Bar Examination for an emergency diploma privilege. Days later, New York canceled the July exam. Adding ambiguity to injury, the exam has been rescheduled to the fall, but no date is provided to examinees who need to make study, travel, and lodging plans for the two-day exam. Are you kidding us? It’s almost like the examiners are not listening. At all.
A reasonably prudent person will interpret the New York decision as a signal for other states to follow. New York is considered highly influential, as its 2016 adoption of UBE was followed by Illinois, Maryland, North Carolina, Ohio, Tennessee, Texas, and others. The 2020 bar takers are not asking the examiners to give away law licenses without merit. They —joined in large number by law faculty, deans and alumni— are asking for necessary emergency licensing measures. They are asking examiners to think outside of the traditional bar exam box. They are asking that fairness, humanity, and the chance to earn a living be prioritized over security worries. They are asking the examiners to listen.
Monday, March 23, 2020
The Class of 2020 has suffered blows like no other graduating class. Domestic K-12, undergraduate, and graduate students alike have been informed that they are not allowed to return to their physical campuses, and must continue their school year online. Hardest hit are the presumptive graduates of the class of 2020. They must forego prom, senior skip day, all manner of internships and externships, competitions - from moot court to state basketball playoffs, science fairs, presentations, and call-back interviews. These students resume academic life, complete with homework and online class presentations, only to confront the added heartbreak of not being able to walk across the stage adorned in cap and gown or hood. My heart aches for the entire class of 2020 who will be unavoidably denied a great rite of passage: the commencement and hooding ceremony with all its pomp and circumstance.
But for law school graduates, the heartache may not end with foiled graduation plans. All medical and environmental indicators would suggest that the July bar exam cannot go forward as scheduled.1 But eleven law professors have said: Enough. While none of us can undo any of the devastating impact of COVID-19, state and national bar examiners can and should consider alternatives to licensure to maintain the influx of new lawyers into the legal profession. In a recently distributed policy paper, The Bar Exam and the COVID-19 Pandemic: The Need for Immediate Action, Professor Deborah Jones Merritt joined with ten other notable legal scholars to pose alternatives to licensure that would allow 2020 law graduates to enter the ranks of the legal profession without costly and undue delay.
According to the paper, the legal system depends on a yearly influx of new law graduates to maintain service to clients. The scholars, in a unified voice, reasonably predict that the aftermath of the COVID-19 pandemic will create an increased need for legal services. Says Merritt et al., “[o]ur 2020 graduates have knowledge and skills that will be particularly helpful in responding to the legal needs of a population stricken by COVID-19,” as “these graduates are fully equipped to function online, a skill that some senior lawyers lack.”
The paper poses six alternatives to the standard summer exam administration, and argues that postponing the exam for weeks or months is not a viable alternative with the uncertainty and medically likely resurgence of the COVID-19 virus. The paper’s authors urge the licensing jurisdictions, and most notably the NCBE that controls the Multistate exams, to consider an emergency diploma privilege, or supervised practice as an alternative in this limited and exigent circumstance that the pandemic presents.
Whether or not the bar examiners agree with the proposals, the time to act decisively is now. Keeping the class of 2020 in limbo about the administration of the July exam, piles onto the existing educational disruptions it has already suffered. Any substantial postponement of the exam will have harmful effects on the candidates who hope to join the legal profession this year.
According to Tammy King, Assistant Dean for Professional Development at Washburn School of Law, “the public service employers who need someone who can practice immediately are among those most likely to wait to make offers or to make offers and start dates contingent on bar passage.” According to reported NALP data, as many as 41.3% of 2017 graduates who were employed within 10 months after graduation secured their jobs after bar results were released. CUNY Law professor @allierobbins may speak for the class of 2020, in a March 23 tweet, "Dear Bar Examiners, Please Listen to these Women."
1 The National Conference of Bar Examiners’ website contains the following update regarding administration of the July 2020 exam: “The bar exam is administered by individual jurisdictions, not by NCBE. We are in close contact with jurisdiction bar admission agencies as they consider possible options for the July exam in the event that shutdowns and prohibitions against large gatherings remain in effect.”
Thursday, March 5, 2020
Every once in awhile I have a "aha" moment. I stumbled into this one, and I'm not the same because of it.
As background, a student reached after having failed the MPRE on multiple tries despite having watched commercial bar review lectures, creating personal study tools, and working lots and lots of practice questions.
I was so impressed with the student's preparatory efforts. The student had created spectacular blackletter study tools. The student knew the law backwards and forwards and could retrieve rules in a flash. And yet, the student missed question after question despite lots of practice in working through and analyzing problems.
That's when it came to me.
My student had learned the law - cold - but was still missing questions because the student had not learned the culture of how the law was tested. Based on my student's prior experiences as an attorney, I asked how my student had learned to solve legal problems as an attorney. My student explained that the key was in learning the culture of how the law applied to client problems.
Likewise, I suggested that perhaps the key to success on the MPRE lies in learning the legal culture of the MPRE. With this thought in mind, my student focused preparation efforts anew on learning MPRE culture rather than MPRE law. And guess what? The student passed the MPRE with flying colors!
Based on this admittedly anecdotal experience, my sense is that many students do not pass the MPRE because they focus on learning the wrong thing. They try to learn the law without learning the socio-legal context of how the law applies - the culture of the law.
With this thought in mind, I now suggest to students that they work through practice problems as armchair legal sociologists to learn the culture of what is being tested. In short, in my opinion, the MPRE doesn't really test the law as much as it tests the legal culture of the law. (Scott Johns).
Wednesday, February 26, 2020
This week we, as in the legal community, are in the midst of the February Bar Exam. For many taking the Feb exam, this can mean that they weren't successful in July. This isn't always the case, there are plenty reasons to take the bar exam in Feb for the first time. However, working with repeaters has made me reflect quite a bit on growth mindset and the importance of grit.
Grit is defined, by the Merriam-Webster dictionary, as "firmness of mind or spirit, unyielding courage in the face of hardship." Growth mindset is a frame of mind, a belief system we adopt to process incoming information. People with a growth mindset look at challenges and change as a motivator to increase effort and leaning. Most experts agree that grit and growth mindset are the most important factors in success.
Let's start with Grit. An entire book on grit was written by Angela Duckworth. (See her website for information on her book, as well as her grit scale - https://angeladuckworth.com/) Angela Duckworth is a professor of psychology at the University of Pennsylvania, and founder and CEO of Character Lab. She started studying why certain people succeed, and others don't. She began at West Point Military Academy, studying why some complete the "Beast Barracks", essentially a boot camp, while others drop out. Given that to get into West Point, there was a certain similarity of background, in term of grades, extracurricular, etc. she set out to see if she could predict who would make it, and who wouldn't. It turns out they couldn't predict this based on grades, or background, but could base it on a grit scale that Prof. Duckworth created. The grittier the West Point cadet, the more likely they would complete the "Beast Barracks". She later expanded on her studies and found that the grittier you were, the more likely you were to complete a graduate degree. She further expanded this to other professions, Olympians, etc, and found that generally, the more grit you had, the more like you were to succeed.
This applies to law school, the bar exam, and the practice of law. Grittier people get back up. They fail, but they learn from that failure and try again. And sometimes try over and over again. However, the key is always learning WHY you failed. This brings me to growth mindset. Dr. Carol Dweck coined the terms "fixed mindset" and "growth mindset." These terms describe the underlying beliefs we have about learning and intelligence.
Professor Dweck explain why a fixed mindset can negatively impact all aspects of your life, but especially your learning:
"Believing that your qualities are carved in stone creates an urgency to prove yourself over and over. If you have only a certain amount of intelligence, a certain personality, and a certain moral character, well then you'd better prove that you have a healthy dose of them. It simply wouldn't do to look or feel deficient in these most basic characteristics.
I've seen so many people with this one consuming goal of proving themselves in [a learning setting], in their careers, and in their relationships. Every situation calls for a confirmation of their intelligence, personality, or character. Every situation is evaluated: Will I succeed or fail? Will I look smart or dumb? Will I be accepted or rejected? Will I feel like a winner or a loser?
But when you start viewing things as mutable, the situation gives way to the bigger picture.
This growth mindset is based on the belief that your basic qualities are things you can cultivate through your efforts. Although people may differ in every which way in their initial talents and aptitudes, interests, or temperaments, everyone can change and grow through application and experience.
This is important because it can actually change what you strive for and what you see as success. By changing the definition, significance, and impact of failure, you change the deepest meaning of effort."
In short, if you focus on learning for learning's sake, and not the end result, like grades or the bar exam, you will get more out of your effort! As a law student, focus on learning the law, and learning to be the best lawyer you can, will help you be more successful. (Here is the website on mindset, where you can take a quiz to find out where you are on the mindset scale, and learn more about the years of research done by Prof. Dweck - https://www.mindsetworks.com/science/)
Grit and growth mindset also take practice. Those that are grittier know that they have to put in the time and effort, that no one is just a "natural" - there is always behind the scenes work. Again, this also takes serious self reflection to learn from each failure, and to learn from each success. If you are a law student, assess your exams. Learn to assess your practice hypotheticals. Reflect on how you can improve. If you are studying for the bar, learn to track MBE questions and learn from each practice essay. If you are a practicing lawyer, learn from each and everything you do, whether it ended in a win or a loss. There is always room for improvement, and that is what makes successful people successful.
I don't think lawyers, as a profession, talk enough about our failures, or ways we can improve. Therefore, the messaging doesn't get passed down to students. But we have to make it the norm to fail, and get back up again. That needs to be part of our culture.
It should also be noted that I'm biased, because as I'm writing this I'm working on an entire CALI lesson on growth mindset and grit for law students, so if you are a student, look for that soon, and if you are a professor, feel free to pass it along to your students. In that lesson, I encourage students to reflect on failures, and what they learned. I encourage you all to share your failures, and how you bounced back, with your students.
Stay gritty! (Melissa Hale)
Monday, February 24, 2020
The bar exam is so much more than a test. It is an arduous all-encompassing journey that begins with months of study and practice. Today, the journey comes to an end for the February bar takers. As we send positive thoughts and well-wishes to our students taking the bar exam, we should consciously acknowledge the individuality of the journey for each student, the diversity of experiences, and the sacrifices that were made to reach this point.
Bar takers of all ages and backgrounds have sacrificed, surrendered, lost, ignored, delayed, and missed so much while studying for the bar. Yet, life circumstances would not pause during bar study. Some wed, or welcomed a new child; others dealt with the loss of a pet or family member; some faced separation or divorce; while others moved in, moved away, or moved back home. There are bar takers who made the necessary decision to leave young children in the temporary care of family or friends, while others had to find ways to incorporate parenting and family time, or perhaps elder care, into the bar study routine.
For so many, there were financial struggles. Students took out loans to pay for a bar course, to eat, to live. Some quit their jobs for full-time bar study; others lost their jobs because they could not keep up with the hours and the demands of study. Repeat takers managed the stigma and financial distress of a second, or third, bar prep period. No dollar amount can truly capture the real cost of studying for the bar. There is a toll on your body, your back, your hands, and your eyesight.
Bar takers everywhere, we see you. We acknowledge your struggle. We affirm your efforts and we cannot wait to celebrate your success!
Monday, February 17, 2020
Bar takers, you have seven study days remaining to prepare, to take one last look at your bare bones outlines, to try to crack the code for recognizing recording statutes, and to improve your speed at performance testing. Adding to the angst of sitting for an exam that will determine entry into your chosen profession, is the foreboding fact that national bar passage rates have declined and not returned to prior years heights. News from bad to scary, logically, can lead to doubt and self-debasing thoughts like who am I to pass if as few as four of every 10 bar takers pass the bar in some states?
The negative thoughts creep in and resound even louder to those who entered law school against the odds. Those with LSAT scores below 150; those who juggled working to provide for a family by day, and the competitive rigors of law study by night; those who managed the anxiety of chronic illness and attendance requirements; those who faced implicit biases that created a presumption of lower competence and precluded their appointment to prestigious posts; those whose humble social or financial backgrounds placed them in a daily battle with imposter syndrome; those whose law schools don't rank elite; and those who’ve found a home in the bottom quartile of the law school class are left to silently question who am I to pass?
Let these words be the fight song for the academic underdog. You entered law school, wind at your front, and made it. You fed your family and persevered. You commuted two hours to and from school and made the 8:00 AM lectures. You tutored yourself. You feared failure, but kept going. You ignored the rankings, and focused on your exams. When things got hard, you got harder. So to those who still question, who are you to pass . . . ?
I ask the better question: who are you not to?
 The Louisiana Bar Examination is administered February 17 – 21, 2020, eight days before the administration of the Uniform Bar Exam and other state bar exams.
 Mark Hansen, Multistate Bar Exam Average Score Falls to 33-Year Low, A.B.A. J. (Mar. 31, 2016). See also Jeffrey Kinsler, Law Schools, Bar Passage, and Under and Over-Performing Expectations, 36 QUINNIPIAC L. REV. 183, 187 (“Between 2009 and 2013, nationwide firsttime bar passage rates remained in the high seventy percentile range with three years at 79%, one year (2013) at 78%, and one year (2012) at 77%. Those nationwide bar passage numbers slid from 78% in 2013 to 74% in 2014, 70% in 2015, and 69% in 2016.”).
 Joshua Crave, Bar Exam Pass Rate by State, LAWSCHOOLI (Jan. 29, 2019), https://lawschooli.com/bar-exam-pass-rate-by-state.
*adapted from BarCzar Blog originally published April 2018.
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/
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).
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!
Saturday, December 7, 2019
I read an article last week about personalized learning in K-12. The article discusses how one school is attempting to use time management software and digital tasks to allow students to work at their own pace to learn material. The school monitors students to make sure they stay on a reasonable time table, but if they are on track, students begin learning self-regulation at a much earlier age. This is a skill many of our law students need.
The article's main topic was that personalized learning is hard i the K-12 context though due to time constraints. Other schools aren't implementing these strategies because they aren't practical. School days and academic calendars make self-regulation difficult. State standardized tests mandate certain outcomes by certain dates. Time constraints prevent more schools from promoting this self-regulation.
I think the bar exam promotes a similar problem. Students should be able to learn the material for the bar at their own pace. If they need more time because they are working, then they should be allowed more time to study. However, the exam is not setup that way. The exam is only administered twice a year, and if a student is not on the NCBE timetable, then they risk not passing. The time constraints of the bar dampen student autonomy. The lack of autonomy causes additional stresses and difficulties for some students trying to learn the material.
You can read the article here. It focuses on K-12 education, but we could use the information when considering our students.
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).
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.
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).
Sunday, July 14, 2019
I still remember the kindly judge for whom I interned as a 3L. Knowing that bar prep was coming up and sensing my anxiety, he called me into chambers. “Louie,* have a seat.”
(* Remember, we’re talking about Boston. Anyone named “Louis” is called “Louie,” whether they like it or not. My co-clerks in the Superior Court were “Sully,” “Fitzy,” and “Other Sully.”)
Anyway, “Louie,” he said, “you’re a smart* kid. If you do half the work in that bar prep program, you’ll pass just fine.”
(* I’ll note that this is properly pronounced “smaahht.” See supra at Boston.)
He continued: “My firm* gave me two weeks off to study for the bar, and I did just fine. So stop worrying about spending three months studying.”
(* If I remember correctly, the firm was called “Oldguy, Oldguy & Deadguy, LLP.” Somehow, they made the group of Dan Aykroyd’s business school chums in “Trading Places” look like the picture of diversity.)
My judge’s advice was well-intentioned, and I appreciated his attempt to calm me down. But, the Type-A, neurotic kind of guy I was (errata: am), mostly ignored this advice and studied with the kind of ferocity only those with a festering inferiority complex can muster.*
(* I can thank my significant other at the time for the bar exam-related inferiority complex. An Ivy League law student, she’d repeatedly say, “It’s not like you went to Harvard.” Luckily, our relationship did not last much longer. Ironically, neither did her legal career.)
Many of our students are not so lucky, though. They hear this same tone of advice and happily digest it as a welcome counterthesis to the admonitions of that overly-intense ASP/ bar exam professor. “The partner at my firm said that Schulze is crazy.”*
(* A fair point. No objections so far.)
“You don’t need to do 1,500 Adaptibar questions or whatever. Just watch the videos, read the outlines, and you’ll pass.” The student then spends a relaxing summer watching some videos, hanging out with friends, and going to the beach. (Meanwhile, I’m in my office slowly rocking back and forth in the fetal position after seeing the student's stats and completion percentage data.)
Then, the student fails the bar exam.
The practicing lawyers who give this advice might think that the bar exam world remains a static place where nothing changes. But, the substantial changes to the bar exam over the last five to ten years severely limit the applicability of their experiences. Here are those changes and why practicing attorneys need to be careful with their advice.
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).
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.