You are currently browsing archives for the Rules category.

The Justice Chasm

June 17th, 2018 / By

The justice gap has become a chasm. Almost one-fifth (19%) of Americans now live in poverty or near poverty (p. 16). These low-income individuals collectively experience about 140 million civil legal problems a year (p. 14). Fifty-five percent of those problems affect the individuals “very much” or “severely” (p. 23): that’s 77 million serious problems a year. Yet these individuals receive legal assistance for only 30% of their serious legal problems (p. 35). Our legal system fails to address some 54 million weighty legal problems a year–and that doesn’t count the unaddressed legal problems of middle-income Americans or small businesses.

Pro bono services won’t bridge this gap. There are only 1.34 million active attorneys in the United States. Even if every one of us provided pro bono services to low-income clients, we would each have to handle about 40 pro bono civil matters a year. That’s in addition to the pro bono criminal, appellate, and law reform matters some attorneys already pursue. And each of these 40 matters would affect a client “very much” or “severely.”

Practicing lawyers will not–and probably cannot–serve 40 pro bono clients each year. Salaried lawyers cannot take that much time away from their assigned duties; struggling solos cannot afford to offer so many unpaid services. Equally important, many lawyers lack lack expertise in the practice areas that affect low-income clients.

Nor will taxpayers plug this gap. The Legal Services Corporation and other legal aid organizations suffer chronic under-funding. Indeed, they regularly combat political threats of extinction.

What’s the solution? Can the United States create a justice system that more fully meets the needs of its people? Or will we continue to maintain a system that, while delivering high-quality services to wealthy individuals and big businesses, offers little help to those who cannot afford the price tag of legal assistance? (more…)

, No Comments Yet

Daniel Cameron Merritt

June 14th, 2018 / By

My beloved son Daniel died in January from complications of pure autonomic failure, a rare neurodegenerative disease. Dan suffered from his illness for more than a decade; he fought his pain and disability with a lively mind and love of other people. Dan was particularly interested in legal education and the legal profession–he often contributed ideas to this blog and corrected my mistakes before I posted.

Daniel also coauthored three articles with me. He was a genuine contributor to each of those pieces. In fact, after we published the first one, my father (a law professor) called me to say, “this is the best article you’ve ever written!” Clearly Dan’s influence had an impact.

In Daniel’s honor, here are recaps of the three articles we wrote together. I treasure the memories of writing them, as well as the ideas we proposed. (more…)

, No Comments Yet

The High Cost of Not Lowering the Bar

June 28th, 2017 / By

Gilbert A. Holmes is Dean and Professor of Law at the University of La Verne College of Law

In July of 2016, graduates from ABA-approved law schools in California had a first-time General Bar Examination pass rate of 62 percent, and all bar takers in the state had a first-time pass rate of 56 percent. These numbers are down from previous years, sparking debate, discussion and deliberation about the reason for the decline and what can be done about it.

Deans of ABA-approved law schools in California have been calling for a lowering of the cut score that serves as the basis for grading of the exam. California has the second highest cut score in the country. It also has the lowest pass rate, even though researcher Roger Bolus reported to the State Bar of California that the state’s bar exam takers perform higher than the national average on the only portion of the exam that every state except Louisiana administers—the MBE.

The State Bar has responded to this call by engaging in a number of studies about the content and validity of the bar exam and the California grading system. (more…)

, No Comments Yet

Our Broken Bar Exam

May 4th, 2017 / By

The bar exam is broken: it tests too much and too little. On the one hand, the exam forces applicants to memorize hundreds of black-letter rules that they will never use in practice. On the other hand, the exam licenses lawyers who don’t know how to interview a client, compose an engagement letter, or negotiate with an adversary.

This flawed exam puts clients at risk. It also subjects applicants to an expensive, stressful process that does little to improve their professional competence. The mismatch between the exam and practice, finally, raises troubling questions about the exam’s disproportionate racial impact. How can we defend a racial disparity if our exam does not properly track the knowledge, skills, and judgment that new lawyers use in practice?

We can’t. In the language of psychometricians, our bar exam lacks “validity.” We haven’t shown that the exam measures the quality (minimal competence to practice law) that we want to measure. On the contrary, growing evidence suggests that our exam is invalid: the knowledge and skills tested by the exam vary too greatly from the ones clients require from their lawyers.

We cannot ignore the bar exam’s invalidity any longer. Every legal educator should care about this issue, no matter how many of her students pass or fail the exam. The bar exam defines the baseline of our profession. If the exam tests the wrong things, we have a professional obligation to change it.

*   *   *

For the rest of this essay, please see aalsnews. I discuss the concept of exam validity, our lack of agreement on “minimal competence,” and how educators and practitioners could work together to solve these serious problems.

, View Comments (3)

Law School Deans Ask For Extension On Exploitation

January 18th, 2017 / By

Originally published on Above the Law.

Laptop in classic libraryMore than 90 law school deans have asked their accreditor to halt new standards that would hold schools accountable for very low bar passage rates.

Last October, the Council of the ABA Section of Legal Education & Admissions to the Bar approved two new standards to stop exploitative admissions and retention practices. At a time when demand for law school decreased significantly, a minority of law schools began admitting swaths of students who, after three or more years of legal education, were not adequately equipped to pass the bar exam.

Why would a law school choose to do this? To keep tuition dollars flowing.
(more…)

, View Comment (1)

Charlotte School Of Law Should Be More Transparent, Immediately

January 4th, 2017 / By

game of loansEd. note: This post was co-authored with David Frakt, an attorney and the chair of Law School Transparency’s National Advisory Council. This was originally published on Above the Law.

The United States Department of Education (ED) notified Charlotte School of Law on December 19, 2016, that its students would no longer be eligible for federal student loans. The decision, as with the American Bar Association’s decision to put CSL on probation a month earlier, surprised and alarmed CSL students. Since that time, students have reached out to law schools across the country to inquire about attending in the immediate or near future. With no other law schools in Charlotte, North Carolina, there are practical limitations on the choices CSL students face.

Several students report to us that, despite CSL’s assurances, information has been both limited and not particularly useful as they try to assess their options. Furthermore, these students report that administrators have been unavailable to answer questions. The school appears to have completely shut down for winter break from December 22 through January 3 despite the urgency of the situation that has developed in Charlotte. These administrators have likewise not been available to the press since the Education Department’s announcement in December.

It is not yet clear that the school will resume classes on January 9, as scheduled. And even if the school does resume operations next week, students still have an understandable desire to explore available options.

In theory, students have four options.

  1. Continue their classes at CSL. These students would need to cover the more than $22,000 in tuition and fees per semester with a combination of discounts from the law school, cash, and private student loans.
  2. Pause their legal education. Rather than rush into a decision based on incomplete information, students may wish to take a semester off and weigh their options. Under ABA rules, students have up to 84 months within starting law school to obtain all the credits to earn their JD.
  3. Visit at another law school. Students may attend another law school that accepts them as a visitor. They would need to cover tuition and fees at the new school in the same way as they would at CSL — without federal student loans. Some students may be able to complete their degree requirements as a visitor. Otherwise, they may return to CSL (if open) or transfer, though they may lose some credits.
  4. Transfer to another law school. A transfer to another law school would likely be a permanent move. The school’s latest communication to students indicates a pending arrangement with Florida Coastal School of Law (likewise owned by Infilaw) that would guarantee transfer to Coastal. For students with low grades or on academic probation, this may be the only available option. Students wishing to attend another law school will need to obtain admission through the target school’s standard transfer application process.

At this point, CSL students cannot make informed decisions because CSL has not been sufficiently transparent. As such, Law School Transparency has sent CSL a letter with an urgent request for information that will help CSL students make the choice that is best for their personal career ambitions.

Infilaw, which owns Charlotte School of Law and Florida Coastal School of Law, must be transparent about any pending or reasonably foreseeable ABA sanctions at Florida Coastal. As CSL develops its plan for CSL students to transfer to Coastal, they must ensure that CSL students are fully informed about Coastal’s compliance with ABA standards. Students need and deserve to know about the potential for similar problems to emerge at Coastal.

In November, the ABA placed CSL on probation because of its exploitative admissions and retention policies. Coastal’s admissions statistics are not meaningfully different than CSL’s. The majority of students at both schools face extreme risk of failing the bar exam. These two schools also have the highest attrition rates in the country. It’s possible that the ABA has already warned Coastal that it is out of compliance with the ABA standards, much in the way that the ABA warned CSL in February 2016. Indeed, Coastal’s dean announced the school’s intent to raise admissions standards this past fall. Infilaw should disclose any communications from the ABA that in any way indicate potential sanctions against Coastal, including fact-finding inquiries that the ABA will use to evaluate whether the school has sound admissions and retention policies and practices.

Infilaw should be transparent about communication with the U.S. Department of Education regarding Florida Coastal School of Law’s continued participation in the federal student loan program. The ED cited two independent reasons to deny CSL’s participation in the federal student loan program. First, the ED cited CSL’s non-compliance with the ABA standards. Second, the ED cited CSL’s “substantial misrepresentations regarding the nature of its academic program.” The ED based this finding, in part, on CSL’s failure to disclose until November 2016 that the ABA found the school non-compliant with the ABA standards in February 2016. If Coastal has received notice from the ABA about non-compliance, it has not disclosed it to date. That could provide a basis for the ED to take similar action against Coastal.

Coastal might be a reasonable alternative for some CSL students, but it is not fair or ethical or consistent with the school’s fiduciary duty to withhold this information from CSL students considering a transfer (or, for that matter, current Coastal students).

Infilaw should be transparent about its plans to facilitate transfers within the Infilaw System, including moving expense reimbursement, alternative class schedules, tuition discounts, and whatever else students need to ease the transfer after Infilaw and CSL withheld critical information for nine months. Even assuming that Coastal does not face any immediate issues from regulators, Infilaw and CSL should recognize that simply offering students the opportunity to attend another law school in the Infilaw system is not enough to discharge its legal and ethical obligations to students. This is especially true given Infilaw’s financial interest in moving students to one of its schools that has access to federal student loan dollars from one that does not.

Students who choose to relocate 400 miles from Charlotte to Jacksonville will incur substantial costs, including transportation costs, moving expenses, and early lease termination fees. Students who seek to join the bar can ill afford to have negative credit reports or collection actions taken against them for breaching a lease. It is essential that administrators promptly develop and communicate a fair, simple, and transparent approach for students to file for reimbursement.

Charlotte School of Law should clarify whether it will permit and facilitate students who seek to visit another law school this semester. At least a handful of current CSL students have inquired with other law schools about visiting this coming semester. As one law school in North Carolina told us, the obstacles to a visit are not with their school — they are prepared to promptly review and act upon any applications for a visit. Rather, the question is whether CSL will approve the visit, accept the credits towards CSL degree requirements, and waive degree requirements that cannot be met at the visiting school, such as the course on North Carolina distinctions.

The school has sent mixed messages to students about the possibility of visiting at another school. CSL should publish clear guidance on visits as soon as possible, and should do everything possible to facilitate visits for students who request them. We asked Traci Fleury, assistant dean of academic services, for clarification. She did not respond to our phone call.

Charlotte School of Law should devote more resources to student service and administrative offices. Completed applications, whether for a visit or a transfer, typically require a letter of good standing, an official transcript, and, for visits, a letter promising to accept credits from the visiting school. Students report to us that they are still waiting on one or more of these items from CSL. Dean Fleury indicated in an email to a student that a team of five people is working through transfer packets for students. But time is of the essence, and Infilaw schools have been accused of purposefully impeding transfers in the past. Thus the school needs to devote even more resources so that inattentiveness does not prevent students from making informed choices about their futures.

Charlotte School of Law should clarify why it indicated that the school will submit a “teach-out” plan to the ABA in March. A teach-out plan helps students find a reasonable opportunity to complete their program of study. The ABA accreditation rules require a teach-out plan for any school that loses access to the federal student loan program. However, Rule 34 also requires a teach-out if the school intends to cease operations. CSL has already informed students who had been planning to start this month that the “spring start” for which they had been admitted has been canceled. With deadlines for transfer and visits looming, and nearby schools preparing to begin classes as early as tomorrow, CSL should clarify whether the school plans to cease operations in the near future, or if it is even considering such a step, as this will obviously have an impact on the decisions that students make.

While we understand that the situation is fluid, and that the school’s plans may be contingent on a variety of factors that are outside of its control (such as regaining federal funding), CSL must not let uncertainty prevent timely release of information. If in doubt, CSL should err on the side of full disclosure and immediately release any information that could conceivably affect its students’ decisions.

, No Comments Yet

Council Approves New Bar Passage Standard

October 21st, 2016 / By

The Council of the ABA’s Section of Legal Education and Admissions to the Bar has approved a hotly debated proposal to tighten the accreditation standard governing bar passage rates. When the new standard takes effect, schools will have to demonstrate that seventy-five percent of graduates who choose to take a bar exam pass that exam within two years.

Opponents of the standard argued that it might reduce racial and ethnic diversity in the legal profession. Council members, however, largely rejected that argument. Raymond Pierce, former dean of the North Carolina Central University School of Law, distinguished between programs that give students “an opportunity” and those offering “a false chance.”

For more, see this story.

, View Comment (1)

ABA Moves Forward on Revised Accreditation Standards

September 10th, 2016 / By

The ABA Section of Legal Education’s Standards Review and Data Policy Committee voted unanimously today to recommend that the Section’s Council approve revisions to Standards 501 and 316.

This comes on the heels of a multi-month notice and comment period, which saw a number of comments about the revisions.

The committee recommended that the revised standards be adopted as proposed.

By taking this action, the committee acknowledges that its primary responsibilities are protecting the public and students, not law schools.

, No Comments Yet

Hippocrates

April 17th, 2016 / By

In a forthcoming article, I discuss the ethical duty that professionals have to educate new members of their profession. The ancient Hippocratic oath recognized this duty, commanding all physicians “to give a share of precepts and oral instruction and all the other learning . . . to pupils who have signed the covenant.” Contemporary versions of the oath enforce a similar obligation, while moral and economic principles support the existence of this duty.

Surprisingly, the ABA Model Rules of Professional Conduct do not recognize this duty among lawyers. This is a worrisome flaw. Without an established duty to educate new lawyers, our profession cannot effectively serve clients. Nor can we justify our status as professionals. Professions are communities rather than mere occupations–and an essential feature of those communities is their commitment to ongoing education.

(more…)

, No Comments Yet

The Fall Of Systemic Deception At Law Schools

March 29th, 2016 / By

Originally published on Above the Law.

Last week, Anna Alaburda lost her lawsuit against Thomas Jefferson School of Law. From what one juror said of deliberations, the jury only considered deliberate falsification of the data underlying the statistics she consulted before law school. Systemic deception by law schools, blessed by the ABA, was not on trial. While I am disappointed in the result — I think it would have been an important symbol — I want to talk about the changes that we’ve seen over the last six years on the transparency front. We did not win on every count, but we long-ago declared victory. Here’s why. (more…)

, View Comment (1)

About Law School Cafe

Cafe Manager & Co-Moderator
Deborah J. Merritt

Cafe Designer & Co-Moderator
Kyle McEntee

ABA Journal Blawg 100 HonoreeLaw School Cafe is a resource for anyone interested in changes in legal education and the legal profession.

Around the Cafe

Subscribe

Enter your email address to receive notifications of new posts by email.

Categories

Recent Comments

Recent Posts

Monthly Archives

Participate

Have something you think our audience would like to hear about? Interested in writing one or more guest posts? Send an email to the cafe manager at merritt52@gmail.com. We are interested in publishing posts from practitioners, students, faculty, and industry professionals.

Past and Present Guests