Legal Skills Prof Blog

Perspectives - Teaching Legal Research and Writing is seeking articles for the Fall 2019 issue

Do you have a great (or merely good) teaching idea that relates to legal research or writing?  Are you a judge, legal writing specialist working for a law firm, or someone responsible for training recent law grads who has some insight into how new lawyers could improve their writing?  Are you a law librarian working for a firm, court or other public office that has some ideas to share about helping your customers better find legal information?  Those ideas or anything in between could be the acorn from which a mighty article can grow and if you're inclined to write it up, Perspectives: Teaching Research and Writing may be interested in publishing it. We are currently looking for a few good articles for the  Fall 2019 issue. Here are further details:

The Spring 2019 issue of Perspectives: Teaching Legal Research and Writing is in final production with an anticipated publication date of June 2019. However, we presently have a few spots available for the Fall 2019 issue and thus the Board of Editors is actively seeking articles to fill that volume. So if you’re working on an article idea appropriate for Perspectives (see below), or can develop a good manuscript in the next couple of months, please consider submitting it to us for consideration. There is no formal deadline since we will accept articles on rolling basis but the sooner the better if you’d like it published in the Fall issue.

 

As you may know, Perspectives is sponsored and distributed free of charge by Thomson Reuters as a service to the LRW community with a subscriber base of nearly 4000+ readers. The most recently published issue from Fall 2019 is available here for your perusal and the coming Spring issue will be equally interesting and with lots of good ideas you take into the classroom. 

 

The target audience for Perspectives is anyone interested in the teaching of legal research and legal writing, including:

 

• Law librarians and law professors, including adjuncts;
• Attorneys who help associates or interns develop as researchers and writers;
• Writing specialists at law schools, law firms, courts, and other legal institutions; and
• Judicial clerks, court librarians or others engaged in teaching the public how to do legal research and related tasks.

 

In two electronic issues published per year (fall and spring), Perspectives articles explore a broad array of teaching theories, techniques, and tools. Articles are both short—typically between 1,500 and 7,000 words and lightly footnoted. They are highly readable and typically focus on curricular design, goals, teaching methods, and assessments. For example how to:

 

• Comment rigorously and encouragingly on student writing;
• Efficiently research;
• Collaborate in teaching;
• Design, create, and manage online teaching modules;
• Teach using insights from other disciplines;
• Use technology to enhance learning and teaching; and
• Engage today's law students, interns, and associates.

 

To find out more about submitting a manuscript for consideration and author's guidelines, click here.

(jbl).

"The Essential Skills to Teach Law Students in the Era of Fake News"

This is a new article by professors Beryl Blaustone (CUNY) and Lisa Radtke Bliss (Georgia State) and available at 19 Loy. J. Pub. Int. L. 139 (2018). From the introduction:

In 2016, Donald Trump, a former reality television star, began his first press conference as President-elect of the United States challenging negative media reports as “fake news.” Since then, he has regularly labeled the media as “fake news” and “fraudulent.” His medium of choice to communicate to the American people is the social media platform Twitter, where he has approximately 31 million followers. Following Trump's installation as President of the United States in January of 2017, U.S. citizens began experiencing a style of governing that has never been seen before. Trump's provocative and disruptive style defied conventions and norms of behavior that Americans had come to expect of their presidents. Trump, his then chief strategist Steve Bannon, and his administration pursued an aggressive agenda of “deconstruction of the administrative state.”

 

The tone for Trump's presidency was set early in an interview given by his Counselor, Kellyanne Conway, in response to charges that then White House Press Secretary Sean Spicer's statement about the number of people in attendance at the Trump Inauguration ceremony was false. She stated that Spicer was giving “alternative facts” in response to charges that Spicer gave a false statement about the attendance numbers at Trump's inauguration ceremony. Thereafter, the actions of Trump and his administration were subject to media scrutiny and public protest, an early example of which were the large and almost instantaneous protests at major U.S. airports in response to the first incarnation of the “travel ban,” enacted via Executive Order 13769 in early 2017.

 

As legal educators in the United States, we are challenged with the task of preparing law students to practice in a world in which democratic values, rights, protections, and legal processes are under grave threat. Our approach to raising these concerns among our colleagues and identifying how our teaching should change as a result, is a framework of rebuttable observations offered for discussion. Neither of us have dispositive answers to the fundamental challenges facing us as legal educators.

 

Legal educators are uniquely positioned to positively influence the ways in which students construct a professional identity that helps them deal with what may be experienced as helplessness or outrage. Law students must learn how to correct their misreading of actual circumstances and how to minimize their reactive behavior in response to the current overload of harmful governmental actions. They must also possess an accurate understanding of the framework that controls the changes they are experiencing. The pervasive use of, as well as the normalizing of, deception by our national government is eroding our shared sense that we all are governed by an adherence to the rule of law and a common approach to establishing facts. Our common sense of moral values is weakened, as well as our adherence to professional ethics.

 

. . . .

 

We share our reflections in this paper on the developing imperatives in legal education with the understanding that our landscape is rapidly changing in context. We also acknowledge that our articulation of the four essential lawyering skills are not new inventions in instruction. Rather, it is the importance of these skills in our new climate, as well as the need to teach them in this new context, which makes them higher priorities among our teaching goals. Furthermore, the teaching of these essential skills must be contextualized differently. We urge our teaching colleagues to make difficult teaching choices among competing topics and select these skills for more intense treatment.

 

. . . . .

(jbl).

ABA Journal, How will deans improve bar passage rates to meet new standard?

How law schools deal with the revised Standard 316 will be an important issue in legal education over the next few years.

• ABA Journal, How will deans improve bar passage rates to meet new standard?

(Scott Fruehwald)

Normalizing Struggle by Catherine Martin Christopher

Education scholars stress that learning is effortful.  Also, making mistakes is an important part of learning.

Normalizing Struggle by Catherine Martin Christopher.

"Learning lawyering skills, and becoming competent or proficient in them, is a struggle. This article is a call to action for all legal educators: We need to acknowledge that students struggle, to expect it, and to convey to students that their struggle is normal. In fact, struggle is productive — learning is hard, and lawyers learn and struggle throughout their careers.

This article examines and criticizes the ways legal academia treats law students’ academic struggle as a problem, and suggests that legal educators reorient their attitudes toward struggle, forgiving and embracing student struggle, even building opportunities for struggle into the curriculum. By normalizing the fact of struggle, law schools will not only improve the wellness of their students, but will create lawyers who are better prepared to cope with the constant problem-solving required of a successful lawyer."

I especially like Professor Christopher's statement that "First, all law professors should become, and should consider themselves, academic support professionals. Professors are good at recognizing incompleteness and inaccuracy on final exams; professors should become equally adept at identifying struggling students before the exam and developing interventions."  Very wise words.  All law professors have a duty to educate their students.  If all law professors understood this, there would be fewer schools in danger of losing their accreditation over  bar pass problems.

(Scott Fruehwald)

A new book on public speaking skills for lawyers

The ABA just published a new book by Faith Dianne Pincus, a California lawyer and legal consultant who's spent over 25 years helping attorneys, CEO’s, non-profit leaders and executives improve their presentation skills, called Being Heard: Presentation Skills for Attorneys (also available from Amazon here). According to the publisher's synopsis:

Public speaking is a skill that can be learned, just like any other skill such as writing, playing an instrument, a sport or being a chef. A quick and easy read, this book provides you with basic and advance techniques, and insider knowledge that you need to improve your presentations, whether in or out of court. Attorneys and non-attorneys alike will find a multitude of techniques that can be used immediately to improve their presentation skills.

 

It may seem unnecessary to offer legal professionals advice on how to present information in public. But this book does just that for two reasons. First, although public speaking is a core skill for anyone in a law firm, there’s a big difference between just speaking and really communicating. If you work in a law firm, you can bet that you’re going to have to talk to a crowd of people sooner or later. Professionals know that being able to speak well in public has a positive impact on a career. Good public speakers are seen as leaders. And the reverse is also true. So why not become the best public speaker you can be?

 

The second reason is that there's always room for improvement. The author has spent over 25 years helping attorneys, CEO’s, non-profit leaders and executives improve their presentation skills. She has run seminars, taken part in oral argument prep and privately coached numerous attorneys – both newcomers and old hands – and they all had one thing in common: They all improved significantly.

 

Being Heard: Presentation Skills for Attorneys consolidates the most helpful and effective tips of the trade in order for you and your staff to become better public speakers. These tools have been time-tested and will help to ensure that both in and out of the courtroom, the reader projects the image and message that you want.

 

It would be difficult for anyone to implement all of the ideas in this book (or any how-to book), but by trying out a few new ones every time you speak, one speech at a time, and you’ll improve—each time.

Sounds like a worthwhile title to pick up whether you're a law student trying to polish your oral argument skills or a lawyer trying to improve a client pitch. You can order a copy here.

(jbl).

 

Above the Law: TEACH OR DIE: A law school accreditation rule with teeth.

Joe Patrice, Law Schools Have To Actually Teach Lawyers For A Change Or Lose Accreditation: Finally, some teeth to accreditation.

Excerpts:

"Schools that fail to place graduates in the, you know, legal profession are rampant and a good deal of that failure rests with schools that can’t even produce graduates capable of passing the bar exam. There’s no better way to land a student in a cycle of perpetual debt than to charge a premium for a professional degree and then leave the graduate unable to pursue the profession."

"Even clown colleges reliably produce clowns." [Joe Patrice's words, not mine.]

"For the last few years, the powers-that-be have kicked around a proposal to hold accredited law schools to a higher bar passage standard.  The ABA’s House of Delegates has rejected the measure to reform the rule a couple of times, but the council of the ABA’s Section of Legal Education and Admissions to the Bar has decided that things have gotten too far out of hand and pushed forward with the new rule:

To be in compliance with the revised version of Standard 316, at least 75% of a law school’s graduates who sat for a bar exam must pass within two years of graduation. Under the previous rule, there were various ways to meet the standard, and no law school had been found to be out of compliance with it."

"A more pressing concern about the new rule is the impact it may have on the diversity of the legal profession given that minority students tend to be overrepresented at underperforming schools. But the goal is improving the diversity of the profession not of law schools. If diversity efforts boil down to bankrupting more students of color then everyone loses. Make schools with better track records at turning out lawyers be more diverse rather than rely on pipe dream factories to make the profession look like it’s trying."

"Spring 2020 will see the first wave of schools impacted by the new rule. If out of compliance, they will have two years to get back in line. Something tells me there will be a lot of scrambling schools by this time next year."

Harsh words, but I agree with the gist of the message.  Admitting minority applicants does no good if those applicants can't pass the bar.  As Patrice points out, minority students who do not pass the bar will be saddled with debts that will affect the rest of their lives.  There is a solution: adopt better teaching methods.  The Carnegie Report and Best Practices came out over ten years ago.  Many law schools have adopted the reports' recommendations, but many have not.  It is time that those law schools that want to keep their doors open adopt these reports' recommendations, as well as those of the many studies of legal education that have appeared since these reports.

(Scott Fruehwald)

Harvard to host inaugural conference for law students on legal research skills

Harvard Law School along with other local schools Boston College, Boston University, Northeastern, and Suffolk will be hosting on Tuesday the inaugural conference on legal research skills called Prepare to Practice Legal Research Conference for law students. According to the website, the day-long conference will bring together law students and practitioners to talk about the "real world" legal research skills they will need for that first internship or job. From the website:

Sharpen research skills before starting a new internship or future job! 

The inaugural Prepare to Practice Conference offers students from five ​Boston-area law schools the chance to learn about useful techniques from actual practitioners.

Attendees will hear speakers from firms, courts, non-profits and law schools, as well as have the chance to network with a variety of legal professionals.

Learn research tips and tricks targeted to your needs. Broaden your knowledge ​with the help of industry experts.

While our readers who aren't in the Boston area obviously won't be attending, I'm posting about this because I think the idea of organizing a conference in which students will get the chance to interact with a panel of practicing lawyers about what skills they'll need for their first law job is an excellent one. I'd like to see it catch on more broadly, if others schools aren't already doing something similar.  And if you're in the Boston area and wind up attending this conference, please drop us a line and let us know how it went.

(jbl).

p.s. To our loyal readers (and especially my co-blogger Scott), I apologize for my sporadic contributions to this blog lately. Between dealing with a back injury that requires surgery next month and a project that's been a major time-suck - doing a make-over of Perspectives: Teaching Legal Research and Writing - my schedule has taken a beating. But I'm now getting back into the swing of things. Thanks for your indulgence.

The ABA 2019 Bar Pass Spreadsheet Part II: Ultimate Bar Pass and the New Standard 316

David Frakt: The ABA 2019 Bar Pass Spreadsheet Part II: Ultimate Bar Pass and the New Standard 316

An excellent analysis of the new standard 316 and recent bar pass rates.

(Scott Fruehwald)

Breaking: ABA legal ed section's council adopts tighter bar pass standard; clock for compliance starts now

ABA legal ed section's council adopts tighter bar pass standard; clock for compliance starts now

"Following multiple years of discussion, and two rejections from the American Bar Association’s House of Delegates, the council of the ABA’s Section of Legal Education and Admissions to the Bar adopted a proposed revision to tighten an accreditation standard regarding bar passage Friday.

To be in compliance with the revised version of Standard 316, at least 75% of a law school’s graduates who sat for a bar exam must pass within two years of graduation. Under the previous rule, there were various ways to meet the standard, and no law school had been found to be out of compliance with it."

(Scott Fruehwald)

Cold Cognition, Hot Emotion, and the Training of Lawyers

Are emotions part of lawyering and learning?

Cold Cognition, Hot Emotion, and the Training of Lawyers by Steven I. Friedland.

Abstract: "Recent advances in neuroscience have shown that cognition and emotion often work interdependently, operating as if emerging from a single faucet. This means that the stereotypes of a divided “cold cognition” and “hot emotion” are overly simplistic and inaccurate. The outdated but influential Langdellian approach to law, lawyering and legal education still places cognitive legal reasoning as the centerpiece. Instead, the cognition-emotion conceptualization should be revised so that positive emotion is expressly accepted, used, and managed within legal systems. Students and lawyers should be taught how to successfully feel and act like lawyers, as well as think like them."

Here are a couple of interesting nuggets:

"Emotion can be seen as a strategic tool for the survival of the organism—'Emotions are the way that evolution has built long-term goals into the structure of the brain to give an organism the best chance of surviving and reproducing.'"

"Why should “heat of passion” manslaughter exist as a legitimate crime alternative and justify a reduced conviction because a person became emotionally distraught?212 On the one hand, this doctrine recognizes that a person is not acting reasonably and thus is not subject to exoneration. On the other hand, it still conflates cognition and emotion in a perplexing fashion—as if there can be a “reasonable unreasonable” person. If managing cognitive emotion is to be expected of adults in American society—particularly their “fight or flight” response—then the minimally accepted standards of behavior should be placed along “adult” emotional lines when determining which response is appropriate. This means that the classification of provocation manslaughter—or as it is known, “heat of passion”—should be modified. No longer should a person be excused for losing control when seeing a spouse in bed with another or escalating a battery into a situation where deadly force is entertained.213 The emotional excess ought to be evaluated as beyond the realm of acceptability; not a situation where a conviction is reduced.214"

(Scott Fruehwald)

 

 

 

Teaching and Assessing Metacognition in Law School

I have been stressing the importance of teaching law students metacocognition for several years.  Many students come to law school with limited metacognitive skills, and this fact hinders their learning of the law.

Here is an article on the effectiveness of metacognitive training in the first year of law school:

Jessica Santangelo & Jennifer A. Gundlach, Teaching and Assessing Metacognition in Law School.

Abstract

"As law schools in the United States reevaluate the content and teaching methods of legal education, legal educators have begun to rethink not only what to teach, but how to teach it so as to best position students for success in law school, on the bar exam, and in the profession. Law students must also understand themselves as learners and commit to learning about their learning. Metacognitive skills, which involve awareness of one’s learning and the ability to regulate one’s learning, are an essential part of the repertoire of lawyering skills that enhance the learning process for law students and better positions them for practice. This article contributes to growing body of research focused on improving law students’ learning.

The article discusses a mixed methods empirical study of first-year law students to determine whether instruction and prompts to engage in metacognition would influence students’ selection of learning strategies and their ability to regulate their learning during the semester. In addition, it explores the relationship between students’ metacognitive skills and their academic performance. As a corollary, the article assessed the methods for measuring metacognition in the context of a semester-long law school class.

As we discuss, we found a correlation between our quantitative and qualitative methods. In addition, students who demonstrated strong metacognitive skills were more likely to perform well in the class. Moreover, adding instructional intervention throughout the semester prompted students to use more active learning strategies that require them to engage with the material they have learned, such as writing out a sample essay response, talking about it or teaching it to peers, or testing their understanding by responding to questions. However, we did not see significant differences in the metacognitive development of students who received more instructional intervention. Anecdotal evidence shows that students may be more likely to make changes to their strategies when they are prompted to do so in conjunction with feedback from formative assessments. The mixed methods approach provided useful snapshots about student metacognitive knowledge and regulation, but was less effective for assessing changes in metacognitive development over time.

The article concludes with a discussion of the implications of the study’s findings for legal education, focusing on teaching and assessing metacognitive skills in law schools, as well as proposed areas for future research on the metacognitive skills of law students."

(Scott Fruehwald)

An Open Letter To Kim Kardashian on Legal Education

Last week, Kim Kardashian and Van Jones talked about Kim's aspirations to be a lawyer on Keeping Up with the Kardashians.  During that discussion, the following exchange took place:

Real talk,' Kim confided in him before the event. 'This law school s***? There is so much reading to do. I am like, dying here.'
'Law school is more of a socialization process than an educational process anyway,' Jones said. 'It's more learning to think like a lawyer than all the actual stuff.'
He praised her doggedness and rigorousness in pursuit of the truth.
'All that stuff, you can't teach,' he told her.  (here)

First, I would like to praise Kim for her pursuit of a legal education.  Her meeting with President Trump helped get a woman who had repaid her debt to society out of jail.  She can do even more as a lawyer.

I am writing you so both you and others who are aspiring lawyers understand what it takes to become a lawyer.

Becoming a lawyer is a lot of work, as you stated in your comments.  No one should become a lawyer without being dedicated to that pursuit.  Being a lawyer is a public trust.

Becoming a lawyer not only requires hard work, it requires doing it in the right manner.   First, you need to read cases in the right way.  Reading in law school is not just getting through cases as quickly as you can.  It requires critical reading: making sure you fully understand the text, relating the text to prior knowledge, challenging the text, reflecting on the text, etc.  I discuss critical case reading in my book Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals (ABA Pub. 2013).  Note: learning how to read cases effectively helps you be more efficient with your study time, and you will not struggle as much with reading.

Van Jones is wrong that "Law school is more of a socialization process than an educational process anyway,'  'It's more learning to think like a lawyer than all the actual stuff."

"Thinking like a lawyer" is not socialization; it is a cognitive process.  It involves legal reasoning and legal argument.  It concerns developing the ability to solve clients' legal problems in an efficient and effective manner.

Law school does involve socialization, but a different type than Van Jones is talking about.  Law school helps students create their professional identities: who they will be as lawyers, how they will interact with the legal world, and how they will serve society.   Luckily, you can do this in an internship equally as well as in law school.  Maybe even better because you are working with real lawyers.  I have also discussed developing professional identity in Developing Your Professional Identity: Creating Your Inner Lawyer.

The one additional piece of advice I give to you is to read about the law outside of the dry text books.  Read accounts of lawyers and trials.  Read fiction about the law, such as To Kill A Mocking Bird or Anatomy of A Murder.

In sum, law school is hard, but it is an adventure.

(Scott Fruehwald)

Institute for Law Teaching and Learning Summer Conference June 3-5, 2019

TEACHING TODAY’S LAW STUDENTS

JUNE 3-5, 2019

Washburn University School of Law

Topeka, Kansas

Detailed program and registration info here.

Looks like a great program!

(Scott Fruehwald)

Are Lawyers Citing the Best Cases to Courts?

Here is a question I've never thought about before: Are lawyers citing the best cases to courts?  In other words, do the courts use the cases cited in the briefs, and how often do the courts use cases not mentioned in any brief?  The answer may surprise you!

Kevin Bennardo & Alexa Chew (UNC), Citation Stickiness.

"This Article is an empirical study of what we call citation stickiness. A citation is sticky if it appears in one of the parties’ briefs and then again in the court’s opinion. Imagine that the parties use their briefs to toss citations in the court’s direction. Some of those citations stick and appear in the opinion — these are the sticky citations. Some of those citations don’t stick and are unmentioned by the court — these are the unsticky ones. Finally, some sources were never mentioned by the parties yet appear in the court’s opinion. These authorities are endogenous — they spring from the internal workings of the court itself.

In a perfect adversarial world, the percentage of sticky citations in courts’ opinions would be something approaching 100%. The parties would discuss the relevant authorities in their briefs, and the court would rely on the same authorities in its decision-making. Spoiler alert: our adversarial world is imperfect. Endogenous citations abound in judicial opinions and parties’ briefs are brimming with unsticky citations.

So we crunched the numbers. We analyzed 325 cases in the federal courts of appeals. Of the 7552 cases cited in those opinions, more than half were never mentioned in the parties’ briefs. But there’s more — in the Article, you’ll learn how many of the 23,479 cases cited in the parties’ briefs were sticky and how many were unsticky. You’ll see the stickiness data sliced and diced in numerous ways: by circuit, by case topic, by an assortment of characteristics of the authoring judge. Read on!"

Let me repeat the key point in the abstract: "We analyzed 325 cases in the federal courts of appeals. Of the 7552 cases cited in those opinions, more than half were never mentioned in the parties’ briefs."  This is astounding.  It raises the question of why lawyers aren't doing a better job of citing the essential cases to the court.  And there's more: "In our 325-case data set, the parties cited 23,479 cases. Of those, only 16% were later cited by the courts in their opinions—or to use our nomenclature, only 16% of the cases cited in the briefs were sticky."

The implications of the above are huge.  Courts should not be finding over 50% of the essential cases on their own.  This also raises the question of whether law schools are teaching legal research properly.  Are legal research classes teaching students to find the best cases?  Do these findings support the need for more experiential classes in the third year?  Do law schools need to devote more time to legal research?

Concerning an earlier and limited study of citations, the N.J. Chief Justice declared, this was enough to show “how deficient a large portion of the briefs filed in our appellate courts are in point of law and what a burden of independent research they impose on the judges.”

What do you think about this?  Please comment.

(Scott Fruehwald)

Subjective Well-Being and the Law by Peter H. Huang

Subjective Well-Being and the Law by Peter H. Huang.

Handbook of Well-Being (Ed Diener, Shige Oishi, & Louis Tay eds., 2018) Noba Scholar Handbook series: Subjective well-being. Salt Lake City, UT: DEF publishers.

Abstract

This chapter analyzes legal implications of subjective well-being (SWB) research. Law can and should learn much from SWB research because the law can and should care about people’s SWB. An incomplete list of legal doctrinal and subject areas in which law professors have applied SWB research includes administrative law, alternative dispute resolution, business law, civil procedure, conflict resolution, contracts, constitutional law, corporate law, criminal law, development law, employment discrimination law, family law, immigration law, international law, negotiations, legal ethics, securities law, securities litigation and enforcement, tax law, tort law, and trusts and estates. Some legal scholars have repeated or contributed to existing concerns, debates, and disagreements among non-law scholars about how to measure SWB. For example, some law professors continue to assume that SWB is one-dimensional, despite the large amount of empirical psychological research finding that SWB is multi-dimensional and has distinct components. Some law professors also continue to ignore the conceptual difficulties with aggregation, interpersonal comparisons, and intertemporal comparisons of multi-dimensional SWB measures. In addition, law often requires societies to make contested normative value-judgments over which there lacks consensus. Some law professors and policy makers advocate using SWB metrics to evaluate legal policies, procedures, and regulations. Others argue that hedonic adaptation implies legal interventions have little, long-run SWB impact. This argument ignores short-run impacts which might be irreversible or have spillover effects, including changing individual preferences and social norms. The unique history and current sociology of the American legal academy has resulted in American legal scholarship applying SWB research focusing perhaps unexpectedly primarily on legal education and law practice. Perhaps quite surprisingly, at least to SWB researchers, is that law professors have applied SWB research most, and by a quite far margin, to analyze how to utilize SWB evidence-based research to sustainably improve the alarmingly, perennially, and persistently negative SWB of many law students and lawyers.

(Scott Fruehwald)

FIU's Bar Success

Over the past few years, I have talked about FIU's bar success many times.  They have created a program that demonstrates that law schools can significantly improve legal education and bar passage with the right approach.  In talking about the program, I have mentioned Louis Schulze's role in putting together the program.  Professor Raul Ruiz also deserves credit for his role in developing the program.  Professor Schulze wrote the following about Professor Ruiz:

"I should note that my colleague Prof. Raul Ruiz deserves most of the credit for our success. He teaches our US Law and Procedure course for 3Ls, and he is enormously talented. While I created the infrastructure of the broader program and guided the implementation of the science of learning into it, Raul is in the trenches applying it all with his brand of expertise."

(Scott Fruehwald)

Robert Kuehn, Law School Specialty Program Rankings: Is the Tail Wagging the Dog?

• Robert Kuehn (Wash U), Law School Specialty Program Rankings: Is the Tail Wagging the Dog?

Excerpts:

"In previous years, the person rating other schools was directed to choose the top 15 programs in that specialty area. U.S. News would then list the top 12 to 20 programs (and even more behind a paywall) based on how often the school was listed by raters. This year, U.S. News asked survey participants to rate specialty programs on a 5-point scale of Outstanding (5) to Marginal (1), mirroring the much-criticized method used to assess the academic reputation of schools among peers and lawyers/judges."

"A glance at the new rankings shows noticeable bunching of schools ranked highest by U.S. News also at the top of most specialty programs and an overpopulation of lowest ranked schools at the bottom. Is this because the highest ranked schools also happen to have the highest quality specialty programs and vice-versa for the lowest ranked schools? Or, might the over-representation at the two ends be due in part to a halo effect where the academic reputation of a school is influencing the rating of that school’s specialty program? This effect could be especially pronounced this year, when raters were asked to not just opine on the quality of 15 specialty programs but to express an informed opinion on 200."

Conclusion: "U.S. News explained that its goal in moving to the new scale was to rank more schools (five to six times more) and provide better understanding of the scope of the differences between schools. Yet when there is strong evidence that many raters may cue off a school’s overall reputation and not independently assess the quality of its specialty program, U.S. News’ rank ordering of school specialty programs down to 192 is of dubious validity and should also call into question the use of this method in its annual law school ranking."

Bob,

I can only speak about the legal writing rankings, but they look fairly accurate to me.  They do not reflect any "halo" effect at all.  Take a look for yourself.

In many ways, legal writing profs are a tightly-knit group.  They are very aware about what is going on through the annual meetings and the list-serve.  They are also good at evaluating which legal writing programs are the top ones.

(Scott Fruehwald)

Why I Support The ABA's Standard 316 Proposal

At its meeting on May  16-18,  the ABA’s Council of the Section on Legal Education and Admission to the Bar will vote whether to revise Standard 316.  I support that proposal.

Here is the current standard:

Standard 316. BAR PASSAGE (a) A law school’s bar passage rate shall be sufficient, for purposes of Standard 301(a), if the school demonstrates that it meets any one of the following tests:(1) That for students who graduated from the law school within the five most recently completed calendar years:(i) 75 percent or more of these graduates who sat for the bar passed a bar examination;or(ii) in at least three of these calendar years, 75 percent of the students graduating in those years and sitting for the bar have passed a bar examination.In demonstrating compliance under sections (1)(i) and (ii), the school must report bar passage results from as many jurisdictions as necessary to account for at least 70 percent of its graduates each year, starting with the jurisdiction in which the highest number of graduates took the bar exam and proceeding in descending order of frequency. (2) That in three or more of the five most recently completed calendar years, the school’s annual first-time bar passage rate in the jurisdictions reported by the school is no more than 15 points below the average first-time bar passage rates for graduates of ABA-approved law schools taking the bar examination in these same jurisdiction.

Here is the proposal:

At least 75 percent of a law school’s graduates who sat for a bar examination must have passed a bar examination administered within two years of their date of graduation.

As you can see, the proposal simplifies the current standard, but it also raises the requirement to satisfy the standard.  Bill Patton writes: "the proposed 75% in 2-year standard, Law School Transparency,  has submitted an analysis to the Council that supports my prediction that at least 9 CA ABA schools will fail that standard for 2018 graduates."  (here)

Several legal education organizations, including SALT, CLEA, and LWI, have opposed the proposal and the ABA House of Delegates has voted down the proposal twice.  However, the Council has the power to enact the revised standard despite the House of Delegates disapproval.

Judith Wegner, one the legal educators I respect the most, has posted a long summary of the objections to the proposal on the Best Practices for Legal Education Blog, along with the Patton letter.  (here)

1. The ABA Council is proposing an action that will have significant disparate impact on minority candidates seeking admission to the bar, but has not undertaken meaningful research on this topic.
2. If the theoretical basis of the ABA action is tied to a requirement that law school graduates demonstrate a basic level of competence, it cannot reasonably claim that state passing percentages are tied to such a determination given their widely disparate passing rates. . .
3. Significant questions should be raised regarding the authority of the ABA Council in effect to prohibit the continuation of law schools in jurisdictions such as North and South Dakota or institutions serving minority populations in jurisdictions where state legislatures have failed to provide adequate funding for public K-12 education in areas with substantial minority populations. . .
4. Recent developments in federal antitrust law should also be reckoned with. The United States Supreme Court’s decision in North Carolina Dental Board v. FTC, 574 U.S. ___ (2015), provided an important gloss on the “state action” exemption. . .
5. The ABA Council’s proposal assumes that existing bar examinations can actually be assumed to document basic competence for lawyers. . .

She concludes, " Doing nothing allows the ABA Council to undercut the diversity of the legal profession without engaging with core principles. Is that an acceptable practice in your view? The ABA now charges law schools more than $20,000 per year to fund its activities, while acting on simplistic bureaucratic principles. Is that an acceptable use of limited law school funds in your view."

Here is why I support the proposal:

The concerns that have been raised concerning the proposal's effect on minorities are legitimate. The question, however, is why many law schools did nothing to improve legal education to help minority students when bar exam scores started to decline several years ago. In 2007, Best Practices and The Carnegie Report demonstrated in great detail that law schools were not providing a quality education to their students. Since then many scholars have reiterated these concerns. For example, I wrote an article showing how law schools could help minorities do better in law school. How to Help Students from Disadvantaged Groups Succeed in Law School, 1 Texas A & M Law Review 83 (2013), and I have recently published a book on law teaching and learning, How To Grow A Lawyer: A Guide for Law Schools, Law Professors, and Law Students (2018). Professor Louis Schulze put similar ideas into practice at FIU, and his school has scored highest on the Florida bar exam again, again, and again. (here)  There are many, many other books on legal education reform, and several organizations hold conferences on teaching and learning every year.

All law schools must do their part to increase opportunities for everyone. However, they should not be able to do this by admitting unprepared students, then doing nothing to help them become effective attorneys  or pass the bar. It does nothing for minorities if law schools graduate them without the tools to be competent attorneys. It does nothing to help disadvantaged communities for law schools to graduate students who will hurt those communities more than help them. The present situation is turning out attorneys who can not earn enough money to pay off their crushing law school debt.

Some law school critics have gone as far as to label some law schools as unethical in their admissions practices.  For example, an article in The Chronicle of Higher Education declared, "But the trends, while encouraging, create a heightened imperative for law schools to be ethical in their admissions practices and equitable in allotting financial aid. As admission rates and diversity have increased, the LSAT scores of those admitted have decreased, significantly in some cases. The declines have raised suspicions that, purely to generate revenue, some schools are enrolling students who have no chance of becoming lawyers. An LSAT score is not destiny, so those trends do not much concern me; I am much more troubled by emerging student-debt trends."

"Data from the student-engagement survey suggest that the students least able to afford law school are the ones stuck with the highest costs. As legal education has become more expensive over the past decade, racial and ethnic disparities in expected student debt have emerged."

"It is through the lens of student debt that the exploitation-as-survival theory really takes hold. Too many law schools are inducing students to take on debt that under no reasonable set of circumstances will they be able to repay. In the meantime, they are heaping scholarships of increasing amounts on the relatively few high-LSAT scorers still applying to law schools. Those beneficiaries are less likely to be black, Latino, or from low socioeconomic backgrounds. In the end, disadvantaged students end up subsidizing the attendance of their more privileged peers — a reverse ­Robin Hood scheme that is as regressive as it is indefensible."

I urge the Council to enact the proposal. As I noted, many law schools have ignored the call for legal education reform for over ten years. We can’t wait any longer. Do your part, or lose your accreditation.

(Scott Fruehwald)

P.S. Here are some comments from David Frakt concerning bar passage rates:"When one considers the combined effect of academic attrition and bar pass failure, it becomes even clearer how catastrophically bad the performance of these very high risk classes really are. Whittier's 2o15 entering class had 42.5% 1L attrition and still achieved less than a 22% first time bar pass rate. Golden Gate had a 39.3% attrition rate and a 35.90% bar pass rate."

"It is still appalling that there are law schools accredited by the ABA where fewer than a third of students complete law school and pass the bar on their first attempt. Of course, some students who failed the first time will eventually pass, but the sad truth is that well over half of the students that started law school at many of the bottom-feeder schools will either never earn a JD or, if they do, will never pass the bar. That is shameful. The ABA should establish a presumption that an LSAT median at or below 146 is not in compliance with Standard 501."

Me: How can anybody justify these outcomes?  These schools are hurting minorities, not helping them!