Tuesday, May 3, 2022
Did you see the headlines yesterday? In these ongoing unprecedented times, the fact that a draft of a Supreme Court opinion was leaked ahead of the decision is mind-blowing and surprising. The fact that the current U.S. Supreme Court would overturn Roe v. Wade given the opportunity is not. It is exactly like a tornado or tsunami warning: we can see it coming, and although we cannot be certain about where and when it will hit, it is going to hit. So here we are, huddled and waiting for the storm.
I’ve spent years telling my students that the belief in the rule of law is akin to a collective leap of faith, an almost spiritual way of looking at it. I have explained how the last administration made that leap a riskier venture. Today, the chasm we now need to navigate is wider and may even have sharks swimming in the murky area below. Sigh.
I will admit to thinking that the Roe decision was unnecessarily convoluted when I read it in Con. Law. The U.S. Supreme Court didn’t usually give such numerically bright line rules (the fertile octogenarian, anyone?). I thought such an important case should be clearly written and easily understood, but I loved what it stood for-I loved its place in the timeline of Griswold v. Connecticut, Eisenstadt v. Baird, Planned Parenthood v. Caseyand on to Lawrence v. Texas. But, in all honesty, the right to abortion was barely holding on after Casey, and here we are today.
My first reaction was to ask Amy Coney Barrett to turn in her uterus. I thought she should be banished from the sisterhood for her role in this-and then I stopped. Why am I blaming the only woman who signed on to this? Don’t get me wrong, she is not going to be invited to my birthday party this year (or any year, ever), but my hope that she was one of our own on the inside just because she is a woman wasn’t fair either. Assuming anything-- about anyone-- just because of their gender isn’t right. So, I will despise her actions exactly as much as I despise the actions of the four other justices who have purportedly signed onto this abomination.
I distinctly remember my eldest daughter asking me about abortion when she was about eight (she routinely asked me about really deep things at very inopportune times, usually while I was driving-which as you may know is already a fraught venture in Massachusetts). And I distinctly remember sitting on the edge of her bed, explaining what it was, and telling her that she would never need to worry about it because her body belonged to her.
And now I am a liar.
 Roe v. Wade, 410 U.S. 113 (1973).
 Griswold v. Connecticut, 381 U.S. 479 (1965).
 Eisenstadt v. Baird, 405 U.S. 438 (1972).
 Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992). This was the beginning of pulling the teeth of Roe out.
 Lawrence v. Texas, 539 U.S. 558 (2003).
Sunday, April 3, 2022
Remember Thanksgiving when you were a kid? The adults sat at one table with endless access to the stuffing and gravy while you sat with your cousins wondering why the potatoes never got to you. The kids’ table was a fixture, but when I was middle school age, I was certain I should be allowed to join the adults and enjoy the power of the serving spoon. Perhaps Academic Support has entered that part of our growth as well.
The 2023 Best Law Schools list was recently published by U.S. News & World Report. In determining these rankings, U.S. News looks at numerous factors in determining how and where schools are listed. According to U.S. News, they, “evaluate institutions on their successful placement of graduates, faculty resources, academic achievements of entering students, and opinions by law schools, lawyers and judges on overall program quality.” From time to time the importance and proportional value of the various criteria are tweaked. This year, for example, the value of Bar Passage was increased, with U.S. News noting that, “[a] key change for the 2023 edition involved U.S. News more comprehensively assessing the bar passage rates of first-time test takers. “ The actual overall value this year was 0.03 as opposed to previous years when it was 0.0225. This doesn’t seem like a big change in the scheme of math but consider that bar passage is valued more than the acceptance rate, student-faculty ratio, and debt at graduation.
The U.S. News rankings also include programs within law schools in the areas of (among others): Business/Corporate Law, Clinical training, Constitutional Law, Contracts/Commercial law, Dispute Resolution, Legal Writing, and Trial Advocacy. Academic support is neither considered in the overall rankings nor ranked independently as a program.
Just to be clear, I don’t like rankings: I even volunteered to be on a subcommittee that is examining our internal student ranking system. Yet, I understand that without a very complicated mathematical algorithm based on a long list of both objective and subjective criteria, law schools cannot brag, fundraise, um, see how we are doing overall. I get it: law schools need a way to be assessed.
But here’s the rub: I am a parent of a child with learning issues who had an IEP all the way from kindergarten through to college. They were “othered” by going to the learning center, they were sometimes bullied, and they came home feeling that they were intellectually inadequate often especially in the middle school years. I spent a lot of time explaining to her how school only measured certain types of intelligence while overlooking many others. Howard Gardner’s work on multiple intelligences was something we could both cite over the years to remind ourselves that school assessment isn’t the sum of who we are.
In the same way that schools tend to only assess a very limited number of student intelligences, I would argue that ignoring Academic Support Programs in ranking law schools similarly overlooks something important. Even worse, by assessing the consequential outcomes of good Academic Support programs--like employment rates and most obviously first-time bar passage rates--without looking at ASP itself means that ASP professionals are truly the unseen factotum in law schools. We are taxed without being represented because all the things ASP touches are considered or ranked, but ASP programs are not considered in any part of the formula.
There are, of course, some major downsides to having ASP ranked or considered in ranking without more job security (like tenure!). I wouldn’t want to outsource my yearly work evaluations to U.S. News especially if I had a contract that was up for renewal frequently (or worse yet, not have one at all). Nor would I want to be assessed based on criteria that I cannot control, like admissions decisions. Like all coins, this one has two sides.
And yet, wouldn’t it be nice to sit at the adult table sometimes?
 Where she is a junior who is regularly on the Dean’s List (my bragging).
 This is a real word. And so much fun! https://www.dictionary.com/browse/factotum
 Since my law school is located in Boston, this is a required complaint.
Monday, October 11, 2021
Have I mentioned that I live in walking distance of Boston's Fenway Park? I live in the town just slightly west of Boston. Last night there was a baseball game at Fenway. It was an important one to Red Sox fans. Have I mentioned that I am not, proximity aside, a member of Red Sox nation? However, the Red Sox beat my team to get to this game, so since I am an adult, I decided that I am now a fan…of the team the Red Sox are playing (there are no adults in baseball, or was that crying? Either way). Yet, I live with Red Sox fans, so we were watching the game. For a very, very long time. Because it ended in the 13th inning. I guess folks with tickets got their money worth, but they do close the beer stands after the 7th inning which means that when this game finally became interesting to me most people down the street were either happily sober or wishing they weren’t.
You are wondering, what is the legal teaching connection? Glad you asked. Here is our fact pattern: it was the top of the 13th inning and the Tampa Bay (not devil anymore) Rays were batting. There was a player on first base and one out, when Kevin Kiermayer came to bat and Kiermayer hit a “rocket” to the wall. Then, “[t]he ball hit the wall, struck Red Sox outfielder Hunter Renfroe in the right thigh and hopped into the Boston bullpen.”The runner on first ran; Kiermayer ran. The runner on first crossed homeplate and the Red Sox fans in attendance, now long cut off from beer, were despondent. For a moment. The umpires conferred and ruled it was a double, so the runner on first could only get to third base and the run the Rays had “scored” was erased. This is the run that would have broken the 4-4 tie in the 13th inning. Red Sox nation rejoiced. I glowered a bit.
This is where the rules of baseball come in-as they do in every game-but since there are fewer playoff games occurring than on usual nights -we were paying attention. The rule and its application were explained by Major League Baseball umpires this way: “It's item 20 in the manual, which is, balls deflected out of play, which is in reference to official baseball Rule 5.06(b)(4)(H) [which] says, ‘If a fair ball not in flight is deflected by a fielder and goes out of play, the award is two bases from the time of the pitch. Once that ball hit the wall, it was no longer in flight. Now the ball bounces off the wall and is deflected out of play off of a fielder. That’s just a ground-rule double.”
The legal education angle here is that this seems to be a strict liability rule-it doesn’t matter if the ball accidentally or intentionally got put out of play. The way I plan to use this in class this week is to ask students to go through all the possible intents: willful, reckless, negligent, etc. and ask how each could have been proven in that moment. I'll poke at the idea of whether Renfroe had intentionally pushed the ball out of play to save the game knowing that his intent didn’t actually matter and wouldn’t be examined. Would he be a hero or a scofflaw for engaging the rules that way? I’ll tap the professional responsibility issue of whether the rules act as a shield or a weapon when you are player. I’ll ask why Major League Baseball tends to use strict liability rules. You can’t stop the game to have a trial, but they do have so many camera angles at every position on the field that they send off multiple videos to a third party for confirmation. I’ll also show the video of the 2013 World Series where a call by an umpire awarded the St. Louis Cardinals a run, and therefore the game, and ultimately the series, against the Red Sox for contrast…and laugh.
Friday, October 1, 2021
This weekend, I attended the Central States Law Schools Association Scholarship Conference and ASP was well-represented. each speaker gave a talk highlighting their current works and sought feedback from the audience of faculty members. Here is just a sampling of the ASP presentations:
Cassie Christopher, Texas Tech School of Law
A Modern Diploma Privilege: A Path Rather Than a Gate
Michele Cooley, IU McKinney School of Law
But I’m Paying for This!: Student Consumerism and Its Impact on
Academic and Bar Support
Danielle Kocal, Pace Law School
A Professor's Guide to Teaching Gen Z
Blake Klinkner, Washburn School of Law
Is Discovery Becoming More Proportional? A Quantitative Assessment of
Discovery Orders Following the 2015 Proportionality Amendment to
Federal Rule of Civil Procedure 26
Leila Lawlor, Georgia State College of Law
Comparative Analysis of Graduation and Retention Rates
Curricular Tracking as a Denial of the “Free Appropriate Public Education”
Guaranteed to Students with Disabilities under the IDEA
I was delighted to see so many ASPers presenting Works in Progress, and I cannot wait to read and cite your published works!
Friday, March 26, 2021
M. Griggs (Washburn) & D. Rubenstein (Washburn), It’s Time to Re-Set the Bar for Online Proctoring (Bloomberg Law, March 24, 2021).
ASP's own Professor Marsha Griggs and her colleague ask crucial questions here. Everyone in ASP should be aware of these troubling issues.
From the intro:
Online bar exams administered during the pandemic were marked by controversy around the use of proctoring using artificial intelligence and allegations of cheating that mostly were proved false. Washburn University School of Law professors David Rubenstein and Marsha Griggs say regulation and best practices are needed, since online exams appear to be here to stay.
(Louis Schulze, FIU Law)
Monday, February 22, 2021
Building on the overwhelming success of the 2019 conference, the biannual Online & Hybrid Learning Conference returns in 2021. The COVID-19 crisis proved a powerful accelerant of the trends that were identified at the 2019 conference, and much has been learned in the process. This conference seeks to bring together research derived from the Emergency Remote Teaching phase (Mid-March to June, 2020) and the more measured and planned Academic Year 2020-21, and use the data to identify emerging best practices.
Distance education and other modern learning tools are at work in legal education and have now been applied across a broad sampling of schools. Outcomes-oriented design, integrated formative and summative assessment, online simulations, asynchronous learning, and other hallmarks of distance education have demonstrated efficacy in law teaching for 20 years (though a robust empirical research agenda has yet to develop). The interesting questions continue to center around how and where these modern learning tools and disciplines can be used to best advantage in the law school curriculum. Expertise now abounds among the academy, and this conference aims to collect and share it.
Suggested topics include (but are not limited to):
- Evidence-Based Pedagogy in Online or Hybrid Teaching Environments
- Pedagogy in Practice
- Instructional Design – What We’ve Learned by Working with ID
- Achieving Professional Identity Formation Outcomes via Online and Hybrid Teaching
- Using Assessment Data in Evolving Online and Hybrid Teaching Environments
- Making our Hybrid and Online learning Environments Inclusive and Supportive of all Students
- Which Parts Go Where: Design Thinking Applied to Hybrid Legal Education
- Micro-credentials and Stacking of Credentials - Developing Program Outcomes
- Permeability of the Bricks and Mortar Building; Beyond Traditional Thinking
- What Student Can Tell Us -- Now
If you’re interested in presenting, please send a one-to-two-page proposal to David Thomson, John C. Dwan Professor for Online Learning, University of Denver, 2255 E. Evans Avenue, Denver, Colorado 80208 (David.Thomson@du.edu) in Microsoft Word (or the equivalent). The deadline for proposals is Monday, March 22, 2021.
Tuesday, January 19, 2021
Good morning, everyone, and a big thanks to Steven and the ASP Blog crew for inviting me here again. Every other Tuesday, I will be posting what will be called the "Academic and Bar Support Scholarship Spotlight." In each post, I will highlight a publication from the academic and/ or bar exam support field.
There will be two categories: "ASP Foundational Scholarship" and "New Scholarship." The first category will reintroduce the seminal pieces that developed the generally agreed upon "best practices" in the academic and bar support field.
The second category of "New Scholarship" is self-explanatory but requires a quick note. Traditionally, academic and bar support faculty have been reluctant to self-promote their scholarship. Perhaps arising out of the "ASPish" moniker, this norm demonstrates the humility that sits at the epicenter of who we are as a community. But, it has also left too much ASP/ Bar scholarship out of the spotlight. I am hoping that this series can help solve that conundrum.
Therefore, if you publish some form of scholarship on law school academic/ bar exam support, please send me a link. I will also promote new scholarship referred or found independently, so if you read a new piece and find it helpful, please let me know.
The format of the piece is not important. Books, law review articles, online law review essays, shorter pieces ... all are welcome. I also welcome suggestions for the ASP Foundational Scholarship category. If a publication positively contributed to your understanding of our field, such that you think others should be aware of it, please let me know and send a link.
Later today, I will post the first installment of the ASP Foundational Scholarship series. No spoilers here, though; you'll have to wait for it.
(Louis N. Schulze, Jr., FIU Law)
Wednesday, July 29, 2020
Monday, June 15, 2020
One year ago this month, I wrote my first post for the ASP blog. And while it seems like only yesterday that I began my quest to bombard readers with my weekly musings, I have decided to step aside to make room for other voices to be heard through this forum. Today will be my last post as a regular contributing editor, and I will use this opportunity to reflect on the wonderful learning and growth experience that the year has brought.
I’ve learned that:
Education and advocacy are not parallel paths, but rather an important intersection at which the most effective teachers are found. I left a high stakes commercial litigation practice for a role in academic support. I naively believed that an effective teacher had to be dispassionate and objective and more focused on pedagogy than on legal advocacy or controversial topics. However, I grew to realize that the very skills that made me an effective lawyer still guided me in the classroom to teach my students and to open their minds to new perspectives. My realization was affirmed when ASP whiz, Kirsha Trychta, reminded us that the courtroom and the law school classroom are not that different.
Anger can have a productive place in legal education and scholarship. I don’t have to conceal or suppress my passion to be effective as a scholar. I am angry on behalf of every summer (or fall) 2020 bar taker. I am bothered by states that are so tethered to tradition that they refuse to consider the obstacles and challenges of preparing for a bar exam during a pandemic. It troubles me to see law schools close the doors to their libraries and study spaces, and yet expect 2020 bar takers to perform without the benefit of quiet study space and access to internet and printing. I am flat out disgusted by the notion of forcing law students to assume the risk of death to take the bar exam. And I waive my finger to shame the states that have abandoned exam repeaters and that waited or are still waiting to announce changes to the exam dates and format after the bar study period has begun. These states have essentially moved the finish line mid-race, and our future lawyers deserve better. But thanks to the vocal efforts of others who have channeled their righteous anger into productive advocacy and scholarship, I’ve seen states like Indiana, Michigan, Nevada, Utah, and Washington emerge as progressive bar exam leaders in response to a crisis.
Silence is debilitating. Like so many others, I was taught to make myself smaller, to nod in agreement, and avoid topics that would make others uncomfortable. The untenured should be seen, not heard. I am the person that I am because of my collective experiences. Stifling my stories and my diverse perspective would be a disservice to my calling and to the next generation of lawyers who need to be met with a disheartening dose of racial reality. As soon as I showed the courage to speak up and step out of other people’s comfort zones, I found that I was not alone. My ASP colleagues, like Scott Johns, Louis Schulze, and Beth Kaimowitz and others, were right there speaking out too.
Glass ceilings become sunroofs once you break through them. In the last few years, I have seen more and more of my ASP colleagues earn tenure or assume tenure track roles. And while a job title or classification, will never measure one’s competence or value, our communal pushes for equity are visibly evident. ASP authors continue to make meaningful contributions to scholarship in pedagogy and beyond. Thank you to Renee Allen, Cassie Christopher, DeShun Harris, Raul Ruiz, and the many, many, many others who I can’t name but whose work I’ve read and admired. With varied voices, we are paving the way to enhanced recognition and status in the academy, and with mentorship and writing support we are forming the next wave of formidable ASP bloggers, scholars, textbook authors, and full professors.
June 15, 2020 in About This Blog, Academic Support Spotlight, Advice, Bar Exam Issues, Bar Exams, Current Affairs, Diversity Issues, Encouragement & Inspiration, News, Publishing, Weblogs, Writing | Permalink | Comments (0)
Monday, June 8, 2020
But opportunity is real, and life is free, equality is in the air we breathe. – Langston Hughes
Today I see my country, my life, my career, and my future through the convoluted lens of multiple opinions. My aspirations, both professional and private, are crowded by polarized expressions of rage, shock, and dissatisfaction. As I fight the soul soothing desire to escape the madness that for me is today, yesterday, and tomorrow, I retreat into a self-denying sense of duty that is my temporal high calling – to help others. To help others pass the bar exam and to succeed in law school is the calling of academic support. I am one of a wonderful community of academic support professionals who work tirelessly to help law students and law graduates develop the skills for academic success and bar readiness. As I ponder this special calling, I ask myself, what if countries were like ASP?
What if we had ASP-like programs and opportunities that were available to all members of society? What if coaching, and other resources were made equally available to every and any person who wanted or needed them? What if governments sought out the weakest and most vulnerable members of society to make sure that those most in need of extra help were aware of the resources available? What if national communities were organized in the most ASP-ish of manners, so that support resources could be shared freely, and various cities and states could benefit from this system of open-access without costs or competition? What if all members had the benefit of practice exams and test drives that carried no lasting consequence other than early exposure and preparation for the true tests of life?
For those unfamiliar with the term ASP, Cornell Law School provides some guidance. ASP, or “Academic Support Programs, are available to help all students develop the skills necessary to succeed in law school.” Law schools are purposely, and rightly, inclusive in the scope and description of their academic support services. CUNY School of Law is “committed to providing academic support services to all students who need them.” These descriptions are both accurate and aspirational. ASP is for everyone and anyone who wants or needs it.
Yet, those of us who lead and direct institutional academic support programs know that, although available to all, not all students take advantage of ASP. In fact, the students who we serve most commonly, or rather those who are most often targeted for inclusion in our programs, are the ones most in need of the supplemental opportunities provided by ASP. We willingly make resources available to all, but the success of our programs will be measured, inter alia, by the degree to which we mitigate the “failure-risks” presented by some students based on admissions indicators or law school performance.
As I again consider my precious and special calling and my wonderful ASP colleagues and the many students in whose lives we make real differences, I ask – what if ASP were like countries? What if we could not single out the students for whom our programs were created? What if we were not permitted to tailor the focus of our programs for those with the greatest academic need and those with socioeconomic disadvantages? What if we were forced to dilute the quality and quantity of remediation for the ones at risk of academic dismissal, to prevent the appearance of non-inclusiveness? What is ASP “for all” was interpreted to mean that ASP “for some” was exclusionary and an affront to the importance of the entire student body? The notion of academic support available to all is not cheapened or compromised by the calculated and deliberate act of making sure that the reach of our services extends to, and includes, those for whom denial of such services would make legal education far less likely. After all, ASP exists to level the playing field and make a diverse and inclusive legal profession more likely, not less.
In the end, I guess I am glad that ASP is not like the countries that I know of, and I am left to wish that countries could be more like ASP.
Monday, June 1, 2020
My house is made of candy, and sometimes I eat instead of facing my problems! – Gru, Despicable Me 2
As a nation we have problems to face, but a complacent majority seems to be turning to self-comfort and denial instead of confronting the problems head on. In the legal profession, complacency will cause the voice of the oppressed to fall on deaf ears. The greatest risk of self-regulated and unregulated professions is smug indifference to social change. As legal professionals, we are trained advocates. Trained first to advocate for ourselves and then for our clients, our students, and the protection of the rights of the commonwealth.
We took oaths to defend the Constitution and to conduct ourselves ethically. History and now recent events have proven and reminded us that silence in the face of injustice is unethical. We are not powerless to uphold law and order. We are equipped with the voice, credibility, network, skill, education, and training to effect change and to preserve lawfulness. In our silence and inaction, we become complicit in crimes and civil wrongs against those in dire need of advocacy.
Like all of us in ASP, I am a fervent advocate for my students and alumni. I want them to have sufficient bar prep resources, and fair and reasonably transparent practices in the administration and scoring of the bar exam. One of the most important things about our bar policy advocacy is that we are advocating for positions that will not affect us personally or professionally. On a daily basis, we demonstrate staunch support and fervent advocacy for a fair exam process for bar takers, even though we already hold law licenses and don’t need to take a bar exam.
In that vein, we should also be able to lend our voices to causes that may not “seem” to directly impact us. The ABA Model Rules of Professional Conduct remind us that as lawyers, we have a “special responsibility for the quality of justice.” As legal educators we are molding the next generation of lawyers. A generation that should be shaped with more than our thoughts and prayers. Last week the world witnessed a modern-day lynching by knee, with the assailant face to camera and hands in pocket. This horrific and callous homicide and all events in its aftermath will not be brought to justice on social media or in the courts of public opinion.
If the Constitution that we are all sworn to uphold means anything, then lawyers, law professors, judges, prosecutors, clerks, and peace officers will put to use their advocacy skills, training, and public reach to bring about the justice that has continued to elude people who look like George Floyd, Philando Castile, Botham Jean, Sandra Bland, Tamir Rice, Michael Brown, Alton Sterling, and others. Unless we use our voices and our knowledge of policy, procedure, and statutory construction to protect people who jog, play in public playgrounds, drive luxury autos, travel by car with their children, and eat dinner or sleep in their own apartments, we will have progressed too far down a path of Constitutional disregard.
Our houses are not made of candy, and we cannot afford to turn a blind eye to challenges to justice and equality.
Monday, May 4, 2020
Imbroglio: A complicated situation; a sequence of events so absurd, complicated, and uncommon as to be unbelievable.
Merriam-Webster might as well add a footnote to the July 2020 bar exam administration as an example of the term “imbroglio.” No other term can accurately describe the debacle that surrounds the upcoming bar exam. Blog, essays, and the exasperated cries of bar candidates—summed up in one word. One word with an applicability of meaning that has become self-evident.
A complicated situation – Our nation has become embattled by a contagion that shows no sign of relenting. Across the country, stay at home orders are in place to mitigate the spread of the deadly coronavirus. In states with large numbers of bar takers, there is no safe way to administer the bar exam in the traditional format. Yet, bar examiners and the American Bar Association insist on a bar exam as screening tool for entry into the practice of law.
A sequence of events so absurd – Some states postponed the July exam. Some states canceled it altogether. Some states propose to offer a bar exam in early September; others in late September; others have postponed the exam “indefinitely.” No matter what the states propose, the National Conference of Bar Examiners (“NCBE”) will let us know on May 5, 2020 whether there will be any multistate or uniform exams released in July. States that have adopted the Uniform Bar Exam (“UBE”) are powerless to administer any exam in July if the NCBE won’t provide the questions, because UBE states don’t write their own bar exams anymore.
Complicated – Epidemiologists tell us that the virus comes in waves. Even with proposed and announced dates for the bar exam, COVID-19 may make it impossible or unwise to administer it in the late summer or early fall. But bar takers cannot afford to wait until there is certainty to begin studying. Many will begin bar study this month, for an exam that may or may not take place. They will study in places that are not libraries or law schools, because those places are closed.
Uncommon – COVID-19 presents an unprecedented situation that will impact the flow of new attorneys into the profession at a time when there will be an increased need for legal services. Extraordinary times call for extraordinary measures, like emergency diploma privilege. Utah adopted a sensible emergency diploma privilege, but the ABA and the NCBE discourage other states from following suit.
Unbelievable – Just when we thought things could not possibly get any worse, the New York Board of Law Examiners announced that it may not have enough room to allow bar applicants from out of state law schools to sit for the exam that it hopes to administer on September 30 – October 1. In that same announcement, and with hold-my-beer momentum, the New York bar officials strongly encouraged candidates “to consider sitting for the UBE in other jurisdictions.” That this advice was given without regard for the COVID precautions of other states, and at a time when very few other states were still accepting applications, defies comprehension.
I won’t ask, “what could happen next?”
 ABA STANDING COMMITEEE ON BAR ACTIVITIES AND SERVICES LAW STUDENT DIVISION RESOLUTION [sic] (04/07/020) “the Resolution does not . . . modify or limit the historic and longstanding policy of the ABA supporting the use of a bar examination as an important criterion for admission to the bar.”
Monday, April 27, 2020
For the times they are a-changin’. -Bob Dylan
The times certainly have changed. Almost overnight, every facet of daily life has transitioned to online delivery. Telehealth and telemedicine are becoming the primary source for doctor-patient interaction during the pandemic. Law school classes are online. College classes are online. K-12 primary education is online. Church and religious services have moved to online formats. My grocery and organic farm-to-table products —gone online. Court hearings, also online. I can buy a car, entirely online. I can have legal documents notarized online.
But I cannot take the bar exam online. At least not yet.
The COVID pandemic has tested our resolve and our ability to utilize available technology. Almost every aspect of the legal profession, from court proceedings and probate administration, to law enforcement and legal education, has mobilized for remote administration. Bar examiners at the state and national levels should hang their heads in shame for not harnessing the available technology to deliver the existing exam remotely. It is an embarrassment of epic proportions that those at the helm of legal licensure are so behind the times that the pipeline for entry to the legal profession could be closed until further notice.
Relentlessly tethered to tradition, those insistent that 2020 law grads take an exam that may not be offered until early 2021 have either dropped the ball or are hiding it. It is fundamentally unfair to require an exam for licensure and at the same time withhold that exam from licensure candidates. The cries for diploma privilege and supervised practice options have sounded around the world. To which bar examiners and high courts have responded with either feigned indifference or a proposed solution that is no more than a band-aid for a gaping wound.
To become attorneys, bar candidates should not have to risk their health or the health of their vulnerable loved ones to the spread of the coronavirus. Even today, there are still more unanswered questions than answers. The majority of U.S. jurisdictions have made no announcement as to whether they will offer an exam in July or not. A number of states have canceled the July exam, but still have not announced definitive information about the date or form of the replacement exam. Candidates across the country remain in the dark as the bar exam becomes an archaic qualifier for competence. If the bar examiners hold fast to the pencil and scantron method of testing, we can expect to see it go the way of the pay phone, the answering machine, and the 8-track tape.
Two states, California and Massachusetts, have alluded to an online exam, but with little detail. It remains unknown what role the National Conference of Bar Examiners (NCBE), who produces the multistate exams used in all states except Louisiana, will play in the online exam. If the NCBE can provide an online exam for two states, why not do so for all UBE jurisdictions? And why make candidates in other states suffer the risk of exposure to COVID or career delays by withholding the online exam?
If the NCBE has not developed an online exam, we must ask “why not” and "where has it been for the last two decades?" And we must not accept “test security concerns” as a viable response. Test security is no less of a concern to law school faculty, and to those who administer admissions exams. Yet all law school exams and the LSAT will be offered online in May 2020. The MPRE (another NCBE exam) and other professional licensing exams are already online.
Whether the bar exam effectively assesses one’s competency to practice law is a reoccurring question that will continue to resurface. At a time when virtually every state, except maybe Utah and Wisconsin, is under fire for indecisiveness and poor communication regarding the fate of would-be July 2020 bar takers, bar examiners are justifiably under scrutiny. As is the bar exam. The future of the exam is in the examiners’ hands. We’ve only to watch and see if they’ll respond like Blockbuster or Netflix.
(Marsha Griggs© 2020)
Monday, April 6, 2020
For decades Wisconsin has stood alone in its court-adopted diploma privilege for graduates of law schools within its state borders. However, Wisconsin is not the first state to enact diploma privilege as a means of licensing attorneys. At one point, diploma privilege was the norm, not the exception. Thirty-two states and the District of Columbia utilized diploma privilege as the principal means of licensing law school graduates until the early 1900’s. When the American Bar Association denounced diploma privilege, states began to move toward examination as the gateway to licensure. Many could have been left to believe that the time of diploma privilege was a bygone era. But maybe not so.
New Jersey has emerged as a leader by offering what most should consider a reasoned and compassionate compromise to address the frustratingly uncertain predicament that would-be July 2020 bar takers face. Today, the New Jersey Supreme Court entered an Order cancelling the July exam and postponing to a date uncertain in the fall. State courts in Hawaii, Massachusetts, and New York, had done the same thing days earlier. But unlike its northeast neighbors, New Jersey has granted an expanded ability to temporarily practice law under the supervision of an attorney to 2020 graduates of any ABA accredited law schools who have not previously taken a bar examination. The order temporarily authorizes 2020 graduates to enter appearances, draft legal documents and pleadings, provide legal services to clients, engage in negotiations and settlement discussions, and provide other counsel consistent with the practice of law. The temporary license terminates on the date the next bar exam is given in the state of New Jersey.
Critics may point to shortcomings of the Order. To such criticism bar admission policy reform advocates will likely respond today's order was not perfect, but it was an excellent start. “At this challenging time, the public has a continuing and growing need for legal services in many critical areas,” Chief Justice Rabner stated in the order. “Newly admitted lawyers can help meet that need. The Court also recognizes that, without a means to pass the bar and obtain a law license, qualified students who expect to graduate this spring may lose job offers, be unable to find legal work, and otherwise suffer financial hardship.” Thank you, New Jersey. Thank. You.
Who's got next?
 Beverly Moran, The Wisconsin Diploma Privilege: Try It, You'll Like It, 2000 Wis. L. Rev. 645, 646 (2000).
 Paul C. Huddle, Raising the Bar: How the Seventh Circuit Nearly Struck Down the Diploma Privilege Under the Dormant Commerce Clause, 5 Seventh Circuit Rev. 38, 40 (2009).
 The supervising attorney must be in good standing and have been licensed to practice law in New Jersey state courts or at least three years.
Saturday, 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.
Excerpted from An Epic Fail, Volume 64 Howard Law Journal _____ (2020)(forthcoming).
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.”
Monday, November 25, 2019
We’re more connected through social media than ever before . . . [yet] we’re losing our ability to think and feel. It’s hurting our personal connections and making us more distant and lonely. – Dallas Morning News Editorial Board
This week I recount the sad story of the late Ronald Wayne White. Who was Ronald Wayne White? His name may not ring a bell. White was not a celebrity or public figure. If Ronald Wayne White is known for anything, it is for being unknown. According to published reports, White was found dead inside his apartment this month. Medical examiner reports confirmed that his death had been undiscovered for three years. There are indeed unanswered questions surrounding this late discovered death, but the sad fact is that a man “apparently went missing for three years and no one noticed he was gone.”1
White’s tragic story is an opportunity for us to examine our connections to others. Those who attend and work inside law schools are subject to a special kind of isolation that is par for the course. Based on the volumes of reading, outlining, researching, writing, editing, and memorizing that is required to succeed in law school, we expect students and faculty to work in isolation for long stretches of time. The top students regale in finding that isolated corner hidden deep in the stacks of the fourth floor of the library where no one comes near to make a sound or disturb the concentration necessary to maintain top student status. I too am guilty of lauding solitude. I have, with giddiness, told my colleagues how much I look forward to holiday breaks alone at home to make some headway on my writing project.
While a certain degree of do-not-disturb-mode is both necessary and beneficial for productivity, I worry that we have become desensitized to isolation. We are all at risk of transcending deep focus into dangerous seclusion. Our law students, especially those who are far from home, or those who have no stable home to claim, are not immune to the risk. Loneliness is not a state of friendlessness, it is a position of lacked connection. People who are married, students in study groups, and faculty who interact well with colleagues can still suffer from debilitating loneliness that can only be cured with meaningful connection.
Connectivity cannot be measured by “likes” and social media followers alone. Please check on your students, your colleagues, and yourselves. If you have students who are far from home or without family, why not invite them to Thanksgiving dinner? Likewise, if there are international students in your program who are removed from our culture, maybe treat them to a meal over break. Perhaps your need to develop a work in progress or meet an article submission deadline can be morphed into an opportunity to interact with your colleagues by planning a “write-in.” Faculty colleagues from all disciplines can find an agreed window of time just to get together to write. Sometimes the camaraderie of shared presence and singleness of purpose can act as a proxy for interaction. Maybe extend your shared driveway morning wave, by baking (or buying) cookies and delivering them to a neighbor or senior citizen on your block that you have not spoken words to in years. Real connections don’t have to be big to be meaningful, they just have to be made.
1 A man was found in his apartment three years after his death – and what it can teach us about loneliness (Dallas Morning News Editorial, November 21, 2019).
Tuesday, October 22, 2019
Today's Washington Post has a fascinating and disturbing article about the company HireVue and its signature product, an artificial intelligence hiring system through which employers can set up automated "interviews" with prospective employees. The system "uses candidates’ computer or cellphone cameras to analyze their facial movements, word choice and speaking voice before ranking them against other applicants based on an automatically generated 'employability' score." Based on these scores, HireVue's clients -- which include large organizations like Unilever and Goldman Sachs -- can choose which candidates they would like to bring in for actual human interaction.
The growing reliance of employers on HireVue and its competitors suggests several issues of interest to law students. Can we expect that someday soon, they too will be forced to welcome their new computer overlords by developing another set of skills -- namely, the art of using just the right expressions and intonations to appeal to the interviewing algorithm? How do we even know what appeals to that algorithm, and whether the appealing features actually bear any relationship to job performance, if HireVue releases no information about what it is measuring, what it assigns value to, or, indeed, even what a candidate did wrong? (The mystery and validity issues echo some complaints about the UBE, but at least bar examinees are told their scores.) Like it or not, this Pandora's boxing ring is now open, and it's only a matter of time until young attorneys are sent in to altercate.
To get some perspective on the rigor of the HireVue system, the Post reporter spoke to researchers in applicable fields, including Luke Stark, an AI researcher who was
The charisma of numbers is something I feel I run up against over and over again. And I say this as a person who values data and statistics! I believe it is difficult to make consistently effective decisions or to take wise action without obtaining and evaluating relevant numerical information. And, true, in a field in which our success is largely measured numerically (GPAs, retention rates, bar passage rates), numbers can possess either star power or infamy.
But, notwithstanding their dazzle and clout, numbers should only be powerful if they are attached to something meaningful. If they are being misused or misunderstood, that can mean mistaking the sizzle for the steak. Figures can be seductive when they seem rounded, or extravagant, or provocative, or revealing. It's easy to jump on the conspicuously appealing numbers -- the highest GPA, the apparently significant pattern in MBE scores, the increase in median starting salaries -- just as it's easy to be attracted to the confident, well-spoken cutie who walks into the party. But the GPA might be based on a disproportionate number of generously graded courses; the MBE pattern might be statistically insignificant; the median salary increase might represent slippage, not advancement, if similar schools are seeing an even larger increase. Causes, reliability, and context all matter.
The danger of the charisma of numbers is that sometimes, even when a person is only looking at the surface, they don't feel like they are being shallow, because numbers are supposed to be scientific and rational. We need to remember, and teach our students and colleagues, that, even with the most alluring numbers, you should really spend some time with them first, get to know their flaws and idiosyncrasies, before you commit to them.
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.
Wednesday, July 17, 2019
Retired U.S. Supreme Court Justice John Paul Stevens, one of the most distinguished jurists of modern times, died on Tuesday. The author of more than 400 decisions as well as notable dissents in cases including Bush v. Gore and Citizens United, Justice Stevens was considered a "judge's judge," intensely patriotic without being partisan, free of ideological baggage, and devoted to the rule of law. Former President Gerald Ford praised Stevens in 2005, saying "I am prepared to allow history's judgment of my term in office to rest (if necessarily exclusively) on my nomination thirty years ago of Justice John Paul Stevens." Chief Justice John Roberts noted that Stephens, in addition to his "unrelenting commitment to justice," served with "an inimitable blend of kindness, humility, wisdom, and independence."
As I explored more about his life today, I was struck by how Stevens was not content to rest on his laurels, but rather continually pushed himself out of his comfort zone. His graduate study in English was interrupted by World War II, where he put his analytical skills to work as a code-breaker for the U.S. Navy in the Pacific Theater. He originally made his mark as an antitrust lawyer, first in as an associate in private practice, then as associate counsel to a U.S. House committee investigating antitrust activities, then, only three years after admission to the bar, as an antitrust litigator and partner in a firm he co-founded. Widely respected for his expertise, he wrote influential articles and taught at the University of Chicago and Northwestern law schools while remaining active as a litigator.
Stevens could have remained a respected antitrust scholar and practitioner, but in 1969 he took on the thankless task of serving as counsel to a commission formed to investigate corruption allegations against two sitting members of the Illinois Supreme Court. The commission was evidently expected to perform only a perfunctory investigation, for the person bringing the charges was a well-known conspiracy theorist with little credibility. Nevertheless, Stevens conducted a vigorous investigation which verified the allegations and ultimately led to in the resignation of both the current and a former chief justice. His refusal to take half measures led to considerable acclaim, an appointment to the Seventh Circuit by President Nixon, and ultimately to his appointment in 1975 to the U.S. Supreme Court where he served with distinction for 35 years.
It's not unusual for law students or lawyers to form a narrow view of their own abilities. Knowing they are competent in one area of doctrine or in one application, they allow that expertise to bind them into a narrow view of what they can and should do, rather than exploring how their expertise in one arena could translate into competence and even brilliance in another or a wider field. John Paul Stevens could have made his mark only as an English scholar, or only as a Bronze Star code-breaker, or only as a litigator, or only as a law professor. But he continually stretched to do more, developing expertise in constitutional law and new skills on the Court like coalition-building. And even after retirement at age 90, he stretched himself more, writing three books over the next nine years. His belief in constantly stretching himself to do more and better work can be an inspiration to all of us to not content ourselves in one narrow path. (Nancy Luebbert)