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The ABA Intends To Hold Law Schools Accountable

March 16th, 2016 / By

The good news keeps coming for law school reform advocates. The ABA Section of Legal Education and Admissions to the Bar has taken its next affirmative step towards holding law schools accountable for their exploitative admissions and retention choices.

Soon, the Council for the Section of Legal Education will publish the proposed ABA accreditation standard changes for public comment. The Council will assess any new information it obtains and consider approving the new standards in October. Although the Council is the final authority for law school accreditation, the ABA House of Delegates will vote in February. The process allows the House a formal but non-binding say in new standards.

Let’s review the proposals. (more…)

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Path Cleared for Paid Externships

March 15th, 2016 / By

The ABA’s Council of the Section of Legal Education and Admissions to the Bar took several significant actions at its March 11–12 meeting. The first of these was approval of several changes in Standards 304 and 305, which govern experiential learning and non-classroom educational experiences. Some of the changes adjust guidelines for supervision of externships; the most controversial allows schools to award externship credit for paid positions.

I have written several times to express my support for this change. Individual schools may still choose to ban paid externships, but the path should soon be open for schools to integrate these externships within their educational programs. The ABA House of Delegates will vote on the change, probably at its August 2016 meeting, but that vote does not bind the Council. [Updated at 4:45 p.m. to correct meaning of ABA’s vote.]

The responsibility now lies with law schools to implement this change wisely. I supported the change because I hope it will help us find innovative ways to educate students more thoroughly for law practice, as well as to help employers develop lasting frameworks for education in the workplace. We won’t accomplish either of those goals unless law schools devote real resources, energy, and collaboration to working with employers on these externships.

If your law school has an innovative idea for creating paid externships–or if you’re an individual with such an idea–please send me an email ( I hope to feature good ideas here and promote discussion around them. Few ideas are perfect at their inception but, through discussion and sharing, perhaps we can refine ideas that will achieve our educational goals. Consider it online workshopping of pedagogic ideas!


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ABA Poised To Tighten Accreditation

March 8th, 2016 / By

Originally published on Above the Law.

In the face of financial pressure from rapidly falling enrollment, law schools have made ethically questionable admissions and student retention decisions. Bar exam pass rates have suffered already; MBE scores are at their lowest point since 1988. With an enormous drop in admissions standards between 2012 and 2013, as well as in the two subsequent years, bar pass rates for the next three years will be even worse.

The current ABA accreditation standards can theoretically hold dozens of schools accountable through the bar passage standard (Standard 316) and the non-exploitation standard (Standard 501). But the bar passage standard, with its six loopholes, is almost impossible to fail. Meanwhile, the ABA Section of Legal Education is paralyzed without an enforceable line between “capable” and “not capable” — the relevant distinction under the non-exploitation standard.

To the Section’s credit, the organization has responded well to criticism — publicly and privately. At the first meeting after my organization asked the Section’s Council to address trends in law school admissions and retention policies, the Council asked a committee to propose changes to the law school accreditation standards. The Standards Review Committee (SRC) has since made three key recommendations:

1) The SRC submitted a new cumulative bar passage standard to the Council. Under the proposal, at least 75% of all graduates that take a bar exam must pass it within two years. This eliminates the six loopholes.

2) The SRC submitted a new interpretation to the non-exploitation standard to the Council. Under the proposal, there would be a rebuttable presumption that a school that experiences a certain percentage of non-transfer attrition has made exploitative admissions choices.

3) The SRC declined to submit new bar passage outcome transparency measures to the Council. Instead, the SRC advised the Council that it already has the authority to issue new transparency requirements under Standard 509. As I wrote previously, I agree and the Council should publish new information as soon as possible.

The Council will consider these proposals at its Friday meeting in Arizona. If satisfied with the first two proposals, the Council will send them out for a few months of notice and comment. If satisfied with the SRC’s analysis of the Council’s existing authority under Standard 509, the Council can immediately take the necessary steps to authorize new disclosures.

Changes to Standard 316 and Standard 501 will see significant pushback. While greater transparency may help some students make better choices, the other two proposals provide objective tools to stop law schools from exploiting students. The combination poses a significant financial threat to any school choosing money over ethics to survive. Unless the admissions climate drastically and rapidly changes, these new standards will cause exploitative schools to shrink further, merge, or shut down.

One argument against both standards is the limit on opportunity. Schools can take fewer chances on students who do not fit traditional profiles if bar passage rates and degree completion must be more seriously considered during admissions and retention decisions. Before the enrollment crash that began in 2011, however, schools were able to fulfill these lofty ideals without preying upon students with low expectations of completing law school or passing the bar. The “opportunity” offered to students with low predictors of academic success is failing the bar exam up to four times, accumulating six figures of debt, and never obtaining a law job. This is an opportunity for schools to bring in cash from federal student loans, not to increase opportunities for students.

Educational opportunity is too important to let opportunists capture the term. Reclaiming the term from reckless schools concerned primarily with survival is essential for an accreditation process that’s supposed to protect the public, not the law schools. If a school cannot muster a 75% bar passage rate after its graduates have had the opportunity to take the bar exam four times, the school does not deserve accreditation. If a school must rely on failing significant portions of the class to ensure compliant bar passage rates, the school does not deserve accreditation.

When a school cannot figure out how to maintain accreditation under such reasonable rules, it should close. Let the void be filled by the schools that can responsibly grow enrollment or new schools with new economic models.

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Attrition May Jeopardize Accreditation Status Of Dozens Of Law Schools

February 24th, 2016 / By

This column originally appeared on Above the Law

Earlier this month, the ABA Section of Legal Education and Admissions to the Bar took an important step towards holding law schools accountable through the accreditation standards. The committee charged with writing the law school accreditation standards voted to send a slate of accountability measures to the Council of the Section of Legal Education — the final authority for law school accreditation.

Last week I wrote about the proposed changes to the minimum bar passage standard and the transparency standard. This week, I discuss the Standards Review Committee’s proposals for refining the non-exploitation standard, Standard 501. (more…)

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The ABA’s New Bar Pass Rate Standards

February 17th, 2016 / By

Originally published on Above the Law.

Does the ABA Section of Legal Education and Admissions to the Bar do enough to hold law schools accountable through accreditation? People throughout the legal profession, including people at law schools, think the answer is no.

This past weekend, the Section took an important step forward. The Section’s Standards Review Committee is charged with writing the law school accreditation standards, and it’s voted to send a slate of accountability measures to the Council of the Section of Legal Education — the final authority for law school accreditation.

This week’s column is about Standard 316 (the minimum bar passage standard) and Standard 509 (the transparency standard). Next week, I’ll write about the SRC’s proposals for refining the non-exploitation standard, Standard 501.

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Education and Employment

February 6th, 2016 / By

The ABA’s Council of the Section of Legal Education and Admissions to the Bar is once again considering amendments to Standards 304 and 305 in order to permit externship credit for paid work. As I have written before, I support that change. When granting academic credit, the quality of the experience counts–not whether the student was paid for the work.

I have heard about unpaid externships that offered very little educational content. Conversely, I know of terrific externship placements (with both nonprofit and for-profit employers) that required students to choose between academic credit and pay under our current rules. I see no clear line between pay and educational value. Nor does a black letter rule seem appropriate for a learned profession: Surely ethical educators can determine which externships deserve academic credit.

The debate, meanwhile, raises a more troubling issue. If education and paid employment are incompatible, as some comments on the ABA proposal suggest, then we have lost an essential element of our professionalism. It’s possible that we have lost that element, but I think it’s worth reflecting on the issue.


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ABA House to Vote on Uniform Bar Exam

February 2nd, 2016 / By

Originally published on Above the Law.

Non-lawyers are encroaching on legal services traditionally offered by lawyers. Technology is changing how lawyers and clients think about value. Law schools have created a mismatch between the number of graduates and entry-level legal jobs. Throughout it all, regulators across the country are actively grappling (and griping) about how best to address these extraordinary circumstances.

While proposed actions or inactions cause sharp disagreements around the country about how to move the profession forward in the 21st century, one common-sense action shouldn’t: adopting the Uniform Bar Exam. Next Monday, the ABA’s House of Delegates will consider a resolution from the ABA’s Law Student Division that calls for all jurisdictions to adopt this portable exam. The House should support this measure, and all jurisdictions should adopt the UBE as quickly as possible.

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Peking University

January 18th, 2016 / By

In August 2012, the ABA’s Council of Legal Education and Admissions to the Bar decided not to accredit any law schools located outside the United States. Many observers assumed that action would put an end to Peking University’s upstart enterprise, a School of Transnational Law. Instead, the school, popularly known as “STL,” is thriving.

Philip McConnaughay and Colleen Toomey, STL’s Dean and Associate Dean, explain the school’s success in a recent paper. Their insights are important for anyone seeking to understand the globalization of law practice and legal education. The story of Peking University and STL also offers a cautionary tale about American protectionism.


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New York Adopts the Uniform Bar Exam

May 5th, 2015 / By

New York’s highest court announced today that it will begin administering the Uniform Bar Exam (UBE) in July 2016. In addition to passing the two-day UBE, applicants will have to complete an online course about NY law and pass an online exam based on that content.

New York’s move almost certainly will prompt other states to follow suit. Within a few years, we are likely to have a national bar exam. What will this mean for new lawyers? I offer some initial thoughts below.


1. The Uniform Bar Exam increases mobility for new lawyers. Passing the UBE in one state does not guarantee admission in a different state, because states can select different passing scores. States may also require applicants to complete a state-specific exam. The UBE, however, greatly eases interstate migration for newly admitted lawyers. This is particularly important in a tight job market.

[Adoption of the UBE doesn’t matter as much for experienced lawyers, because most states allow lawyers to “waive in” to their bar after five years of experience in another jurisdiction.]

2. This increased mobility is especially important to women lawyers. My study of new lawyers admitted to the Ohio bar in 2010 found that women were significantly more likely than men to move out of state within their first five years of practice. Almost one fifth of the women (18.4%) left Ohio after gaining bar admission, while just 14.1% of the men did so.

3. By testing general principles, rather than the law of a particular state, the UBE better fits the material that students cover in law school. Students may have to spend somewhat less time preparing for the bar. Even if a state tests separately on local law, as NY plans to do, that testing will occur at a different time.

4. The National Conference of Bar Examiners (NCBE), which creates all portions of the UBE, is a large organization with the resources to develop and pretest sensible questions. Its essay questions may be more fair than ones developed by state bar examiners.


On the other hand, there are several drawbacks to the UBE. As a long-time supporter of a national bar exam, I am more troubled by these issues than I once thought I would be:

1. Although mobile lawyers will benefit from the UBE’s portability, those who remain in-state will have to jump more hurdles than ever to gain bar admission. On top of a two-day bar exam, they will have to complete an online course about NY law and pass a 50-question multiple-choice test on that law. Our school’s director of bar support, who has coached students taking the NY bar, says that the NY multiple-choice test is no picnic.

2. Bar passage could become even more onerous if NY adds an experiential component to its testing. The advisory committee that endorsed adoption of the UBE also recommended creation of a new “task force to study whether experiential learning may be quantified as a licensing requirement or whether some other demonstration of skills acquisition should be required for licensing.” I like the idea of measuring practice skills before bar admission, but I would replace some of our written exams with the experiential component. Adding yet another layer to proficiency testing imposes burdens on new lawyers that more senior ones did not face.

3. Multiple-choice questions make up half the UBE score, a higher proportion than some states currently allot to those questions. Multiple-choice questions have their place, but I would rather test new lawyers on performance tasks like those in the MPT. To me, the MBE is even further removed from practice realities than any law school exam. A closed-book exam covering seven different, very broad subject areas does little but test an applicant’s ability to cram large amounts of material into memory.

4. In addition to my general concern about multiple-choice bar exams, some bar studies find that women (on average) score slightly higher than men on essay questions and performance items, while men (on average) score slightly higher on the MBE. When the MBE accounts for 35% (California) or 40% (Texas) of the exam, these differences balance out, creating virtually identical pass rates for men and women. Is it appropriate to increase the weight accorded multiple-choice items if we know that this shift is likely to favor one gender?

5. NCBE was remarkably unresponsive in dealing with the possible impact of last summer’s ExamSoft meltdown. The organization has also become less transparent, withholding information (such as raw scores) that it used to disclose. Concentrating even more power in one organization is risky. Who will hold NCBE accountable? What pressure will it feel to maintain high-quality services?

Other Thoughts

I continue to consider the advantages and disadvantages of NY’s move to the UBE, and will update this post as other points emerge. Please add your own thoughts in the comments. A national bar exam seems long overdue, but aspects of this shift concern me. As other states react to NY’s move, can we find ways to preserve the advantages of a national bar exam while assuring that (a) the exam tests proficiencies and knowledge that matter; (b) the exam does not create additional burdens for bar applicants; and (c) there is appropriate oversight of the organization administering the exam?

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Bankruptcy Petitions

March 17th, 2015 / By

Michael Sousa has written a thoughtful paper about the issue of non-lawyers preparing bankruptcy petitions for consumer debtors. As Sousa acknowledges, some of these preparers urge their clients to commit fraud; others serve their clients incompetently. But then again, the same is true of some bankruptcy lawyers–and the lawyers charge more than many consumers can afford.

After reviewing the field, Sousa proposes creation of a cadre of licensed petition preparers for no-asset Chapter 7 bankruptcy filings. The United States Trustee’s Office could regulate these practitioners, requiring them to demonstrate adequate knowledge of the law and adherence to appropriate ethical standards. The practitioners, however, would not need JD’s or law licenses.

Sousa’s proposal makes sense to me. I note it here because he has identified yet another area in which non-lawyers may be able to handle the law-related needs of clients who cannot afford an attorney’s fee. As Sousa details, the federal government already allows qualified non-lawyers to represent clients before the IRS, US Patent and Trademark Office, and (in immigration matters) the Department of Homeland Security. The transfer of law-related business to non-lawyers has been slow but steady.

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