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February 25th, 2016 / By

The University of Arizona’s James E. Rogers College of Law has decided to accept GRE scores from applicants. The school will also accept LSAT scores, with applicants free to choose between the tests. (Note, though, that an applicant who takes the LSAT must submit that score; that applicant may choose only whether to submit a GRE score as well.)

Is Arizona’s move an attempt to attract more students in a weak market for legal education? Undoubtedly–the school’s press release admits as much. But that doesn’t mean that the change is bad for prospective students or legal education. Weak markets should prompt innovation. Arizona has taken a number of other steps to make legal education more accessible and attractive to students: It slashed tuition (twice) for nonresidents and created a BA program in law.

Here’s why I like Arizona’s latest innovation as much as the other two.


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Women In The Law

February 23rd, 2016 / By

During three years of law school, I learned the law from only one female professor. But she was a gem: the future Justice Ruth Bader Ginsburg. After graduation, I had the honor of clerking for then-Judge Ginsburg on the Court of Appeals for the District of Columbia Circuit. The following year, I clerked for an equally admirable woman in law, Justice Sandra Day O’Connor.

Justices Ginsburg and O’Connor faced stiff sexism throughout their careers. Even when they ascended to the Supreme Court, their gender could diminish them. I heard one lawyer address the Court as “your honors and Mrs. O’Connor.” Other advocates confused Ginsburg and O’Connor, despite their different jurisprudence and physical appearance.

Entering the law a generation after these pioneers, I faced much lower barriers–although women of my generation still struggled to prove their value in the workplace and to combine work and family. Today’s women, another generation forward, face a somewhat more hospitable workplace. But I don’t kid myself that the playing field is level: glass ceilings, hidden biases, and workplace stereotypes still hinder women in the legal workplace. Both men and women, meanwhile, struggle to combine a demanding professional career with a supportive home life.

Against that background, I’m delighted to announce that LST Radio is creating a podcast mini-series that will explore the ongoing role of gender in the legal workplace. Episodes will address implicit bias, the leaky pipeline, media images of female lawyers, and much more. Podcasts will include summaries of expert research, interviews with individuals, and round table discussions.

LST has assembled a first-rate team of producers, as well as partners who will distribute the podcasts widely. But to go into production, they need some start-up funds. Diversity Law has made a generous matching pledge: If you donate to the “Women in the Law” podcast project now, your dollars count double. Give $10 and the project receives $20. Give $25 and $50 goes in the pot. I’ve already made my pledge–please add your dollars here.

Let’s make sure we understand the forces that still hold women lawyers back–and work to overcome them.

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2016 State of the Legal Market

January 24th, 2016 / By

Georgetown Law’s Center for the Study of the Legal Profession has released its 2016 Report on the State of the Legal Market. The data-driven study of mid-sized and large law firms repeats many of the same findings that researchers have reported since the Great Recession. The news, unfortunately, is that there is nothing new. In 2015, as in other recent years, demand for law firm services “was essentially flat,” productivity among lawyers at those firms declined, and realization rates “plummeted.” (A realization rate “is the percentage of standard billing rates that is actually collected.”)

In sum, “2015 will go down as another overall lackluster year in terms of law firm financial performance.” Yikes. What does that mean for law schools? (more…)

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“Little Staff Attorneys”

January 21st, 2016 / By

At the AALS meeting, a friend of mine (and tenured professor) stood chatting with a few tenured colleagues from other schools. Conversation turned to work that another professor had done in a clinic. “Yeah,” said one of the professors, impressed, “and they didn’t even have a little staff attorney to do all the work.” My friend protested this derogatory reference to staff attorneys, and the professor apologized, but the remark was telling.

This is how all too many tenured professors think of clinical work, clinical professors, and staff attorneys; the same attitude applies to legal writing professors. This work, we assume, is simplistic and doesn’t merit our full attention. It can be done by “little” people. (more…)

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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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The ABA Council and LSAT Scores

January 10th, 2016 / By

As Law School Transparency documented last fall, LSAT scores have plunged at numerous law schools. The low scores, combined with previous research, suggest that some schools are admitting students at high risk of failing the bar exam. If true, the schools are violating ABA Standard 501(b).

Two leaders of the ABA’s Section of Legal Education and Admissions to the Bar recently offered thoughts on this issue. Justice Rebecca White Berch, Chair of the Section’s Council, and Barry Currier, Managing Director of Accreditation and Legal Education, each addressed the topic in the Section’s winter newsletter.

Taking Accreditation Seriously

Berch and Currier both affirm the importance of enforcing the Council’s standards; they also indicate that the Council is already considering school admissions practices. Justice Berch reminds readers that the Council enforces its standards largely through review of each school’s responses to the annual questionnaire. This year, more than half of approved schools are replying to inquiries based on their questionnaire responses–although Berch does not indicate how many of those inquiries relate to admissions standards.

Currier, similarly, endorses the Council’s process and promises that: “If the evidence shows that a law school’s admissions process is being driven by the need to fill seats and generate revenue without taking appropriate steps to determine that students who enroll have a reasonable chance to succeed in school and on the bar examination, as ABA Standard 501(b) requires, then that school should be, and I am confident will be, held accountable.”

This is good news, that the Council is investigating this troubling issue. If we want to maintain legal education’s status, we have to be serious about our accreditation standards. But two points in the columns by Justice Berch and Managing Director Currier trouble me.

The Significance of LSAT Scores

Both Justice Berch and Currier stress that LSAT scores reveal only a small part of an individual’s potential for law study or practice. As Justice Berch notes, “an LSAT score does not purport to tell the whole story of a person.” This is undoubtedly true. Many law schools place far too much emphasis on LSAT scores when admitting students and awarding financial aid. Applicants’ work history, writing ability, prior educational achievements, and leadership experience should play a far greater role in admissions and scholarships. Rather than targeting high LSAT scores for admission and scholarships, schools should be more aggressive in rewarding other indicia of promise.

At the other end of the scale, I don’t think anyone would endorse an absolute LSAT threshold that every law school applicant must meet for admission–although we do, of course, require all applicants to take the test. There are too many variables that affect an admissions decision: a particular applicant with a very low LSAT may have other characteristics signaling a special potential for success.

LSAT scores, however, possess a different meaning when reported for a group, like a law school’s entering class. A law school may find one or two applicants with very low LSAT scores who display other indicia of success. That type of individualized decisionmaking, however, should have little impact on a school’s median or 25th percentile scores.

When a law school’s 25th percentile score plunges 10 points to reach a low of 138, that drop belies the type of individualized decisionmaking that responsible educators pursue. This is particularly true when the drop occurs during a period of diminished applications and financial stress.

The Charlotte School of Law displayed just that decline in entering credentials between 2010 and 2014. Nor was Charlotte alone. The Ave Maria School of Law dropped its 25th percentile LSAT score from 147 to 139. Arizona Summit fell from 148 to 140. You can see these and other drops in the detailed database compiled by Law School Transparency here.

We shouldn’t confuse the meaning of LSAT scores for an individual with the significance of those scores for a group. As I have suggested before, the score drops at some law schools are red flags that demand immediate attention.

Limited Resources

Justice Berch reminds readers that the Council’s accreditation process is “volunteer-driven” and that those volunteers already “give thousands of hours of their time each year.” More, she suggests, “should not be asked of them.” Even making the best use of those volunteers’ hours, she warns, careful review of the LSAT issue will take time.

This caution sounds the wrong tone. As professionals, we owe duties to both our students and their future clients. If law schools are violating the professional commitments they made through the accreditation process, then our accrediting body should act promptly to investigate, remedy, and–if necessary–sanction the violations.

Of course schools deserve “an opportunity to justify the admissions choices they have made before sanctions may be imposed.” But students also deserve fair treatment. If schools are admitting students who cannot pass the bar exam, that conduct should stop now–not a year or two from now, after more students have been placed into the same precarious position.

The LSAT drops cited above occurred between 2010 and 2014. More than a year has passed since schools reported those 2014 LSAT scores to the ABA. Isn’t that enough time to investigate schools’ admissions processes? What has the Council done during the last year, while more students were admitted with weak scores–and more graduates failed the bar?

Accreditation signals to students that schools and their accrediting body are watching out for their interests. If schools need to contribute more money or volunteer time to provide prompt review of red flags like these LSAT scores, we should ante up. Maintaining an accreditation process that fails to act promptly smacks of protectionism rather than professional responsibility.

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Corrected Post on July Exam Results

September 16th, 2015 / By

[To replace my post from yesterday, which misreported Oklahoma’s pass rate]

States have started to release results from the July 2015 bar exam. So far the results I have seen are mixed:

Iowa’s first-time takers enjoyed a significant increase in the pass rate, from 82% in July 2014 to 91% in July 2015. (I draw all 2014 statistics in this post from NCBE data).

New Mexico’s first-timers, on the other hand, suffered a substantial decline in their pass rate: 88% passed in July 2014 while just 76% did in July 2015.

In Missouri, the pass rate for first-timers fell slightly, from 88% in July 2014 to 87% in July 2015.

Two other states have released statistics for all test-takers, without identifying first-timers. In one of those, Oklahoma, the pass rate fell substantially–from 79% to 68%. In the other, Washington state, the rate was relatively stable at 77% in July 2014 and 76% in 2015.

A few other states have released individual results, but have not yet published pass rates. It may be possible to calculate overall pass rates in those states, but I haven’t tried to do so; first-time pass rates provide a more reliable year-to-year measure, so it is worth waiting for those.


I suggest that bar results will continue to be mixed, due to three cross-cutting factors:

1. The July 2015 exam was not marred by the ExamSoft debacle. This factor will push 2015 passing rates up above 2014 ones.

2. The July 2015 MBE includes seven subjects rather than six. The more difficult exam will push passing rates down for 2015.

3. The qualifications of examinees, as measured by their entering LSAT scores, declined between the Class of 2014 and Class of 2015. This factor will also push passing rates down.

Overall, I expect pass rates to decline between July 2014 and July 2015; the second and third factors are strong ones. A contrary trend in a few states like Iowa, however, may underscore the effects of last year’s ExamSoft crisis. Once all results are available, more detailed analysis may show the relative influence of the three factors listed above.

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Fluid-Intelligence Affirmative Action

September 13th, 2015 / By

I wrote in a recent post that many affirmative action programs reflect a belief in fixed intelligence. In these programs, faculty assume that affirmative-action admits have less ability than their white peers. That ability, faculty further assume, condemns those admittees to low law school grades. In addition, the presence of less qualified minority students may aggravate the stereotype threat that can impair performance by all minority students–leading to still lower performance overall.

I then, however, explained that a belief in fixed intelligence is mistaken. Intelligence is much more fluid than many individuals understand. Adopting a fluid-intelligence mindset, moreover, can itself enhance achievement. This brings us to the questions: How does a belief in fluid intelligence affect our concept of affirmative action? And how might those beliefs affect the performance of minority students?

Conceptualizing Affirmative Action

When viewed with a fluid-intelligence perspective, affirmative action programs take on a very different character than the one I described earlier. This perspective, first, assumes that college grades and LSAT scores do not fully reflect the existing intelligence of minority students. Stereotype threat, economic disadvantage, cultural signals, and other forces can reduce a minority student’s performance when compared to that of a white student with similar abilities. Thus, the true ability level of an admitted minority student may be higher than that of white students with similar scores.

Second, the fluid-intelligence perspective assumes that the minority student’s capabilities will grow throughout law school. Education expands intellectual ability, and law school offers a particularly rigorous form of education. The minority student, like white students, will be more capable at graduation than at admission.

Finally, and most important, the fluid-intelligence perspective suggests that the minority student has more potential for growth than the white student with similar credentials. Why? Because almost all minority students have been hampered by a lifetime of implicit bias and stereotype threat. They are also more likely than white students to have suffered from low-income backgrounds, few role models, and inadequate schools. All of these factors can reduce the ability that an individual displays in college or on the LSAT, but they don’t erase the potential for achievement gains.

A good affirmative action program assumes that, if we place minority students in an intellectually challenging but supportive environment, and if we eliminate the stereotype threat and implicit bias in that environment, the minority student will make greater intellectual gains than a white student who enters that environment with the same initial achievement level.

The same, of course, can be true for some white students. Some of them suffer from inferior schools, few role models, and stereotype threats of their own. These students will also benefit disproportionately from a challenging, supportive academic environment. The gaps for minority students, however, tend to be much, much larger. The potential for gain, likewise, is much greater.

The Theory In Action

This three-part discussion, I hope, shows that affirmative action programs need not create stereotype threat or harm minority students. On the contrary, properly conceptualized programs recognize the ability of minority students to make greater gains than similarly credentialed classmates.

What, then, holds them back? Why did Alexia Marks and Scott Moss find that minority law students receive lower grades than white classmates with similar entering credentials? The answer almost certainly lies in our failure to create the type of academic environment described above.

I invite law professors and administrators to reflect on their own attitudes. How many of us believe that intelligence is fixed? That belief can negatively affect student learning.

If we believe in fluid intelligence, do we recognize that minority students may be able to make special gains during law school? Do we eagerly embrace that possibility, working to create the conditions that will bring those gains to life? Are we giving students wise feedback that affirms their ability to meet high standards? The outcomes described by Marks and Moss suggest that we’re not doing nearly as much as we could.

To what extent, finally, does our traditional culture hamper the intellectual development of all students–and of minority students in particular? A lack of individualized feedback, strict grading curves, and overt tracking (e.g., election to the primary law review) probably reinforce notions of fixed intelligence.

Are there ways to change these academic traditions? Or to create new approaches that override their impact? Can we cultivate a belief in fluid intelligence–among both students and faculty–that will give more students an opportunity to grow their intelligence? That is one of the challenges facing law schools.

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Is Intelligence Fixed?

September 8th, 2015 / By

This post is part of a series discussing the challenges that minority students face in law school. You can read previous posts here, here, and here. As I noted in my most recent post, our beliefs about intelligence can affect both student performance and the impact of affirmative action programs. I also suggested that many law students and professors believe that intelligence is fixed. Indeed, the law school culture seems to promote that belief. But is intelligence really fixed?

We know that the expression of intelligence is not fixed. Individuals exhibit different degrees of intelligence under different circumstances. The phenomenon of stereotype threat illustrates that fact: individuals exhibit lower levels of intelligence when tested under circumstances suggesting that members of their identity group are expected to perform poorly.

But does intelligence itself vary? Or does it remain fixed, defining an outer limit of each individual’s potential? One answer is that it doesn’t matter much. If context can affect the expression of intelligence, as happens with stereotype threat, we can focus first on developing academic contexts that enhance the expression of intelligence among all students. Perhaps we can secure sufficient gains in the expression of intelligence–for both minority and white students–that we need not worry whether their underlying intelligence is fixed.

There is, however, significant evidence that intelligence is not fixed. There is equally important evidence that our beliefs about intelligence affect academic performance.

Fluid Intelligence

The psychologist Scott Barry Kaufman dismisses the notion of fixed intelligence as a myth. “The bottom line,” he writes, “is that intelligence was never, and will never, be fixed at birth.” Intelligence grows over the lifetime and even over generations. There is little doubt that intelligence is fluid.

Fluid does not mean completely unrestrained. As Kaufman notes in the article linked above, intelligence as measured by IQ tests remains relatively stable over an individual’s lifetime. This means that individuals at the bottom, middle, and top of the IQ scale tend to retain those relative positions–even as the intelligence of all individuals increases with age and experience. Still, there is considerable fluctuation in those relative positions, especially if individuals are exposed to enriching experiences (or removed from constrictive environments).

This has important implications for legal education. If intelligence is not fixed, then some of our traditional practices look educationally suspect. Our lack of feedback, for example, deprives students of opportunities to enhance their legal intelligence. Our assumption that skills like client counseling reflect innate personality traits similarly prevents us from expanding students’ intelligence by coaching them in these abilities.

But there’s more: Our very belief in fixed intelligence can restrain student achievement.

Fixed and Growth Mindsets

Stanford psychologist Carol Dweck has led a decades-long exploration of the relationship between achievement and beliefs about intelligence. Her work, summarized in the popular book Mindset, shows that people who believe in fluid intelligence (a “growth mindset”) achieve more than those who believe that intelligence is fixed (the “fixed mindset”).

Encouraging students to adopt a growth mindset, therefore, can spur achievement. Dweck and her colleagues have illustrated this effect in numerous studies. Their most recent effort demonstrates the feasibility of low-cost, large-scale interventions to achieve significant gains in student achievement.

This line of scholarship has even more profound implications for legal education. Our grading scales and culture seem to nourish the belief that legal aptitude is fixed. First-year performance constrains employment prospects for many students, signaling that the ability they demonstrated that year is an accurate measure of their long-term potential. Similarly, many students express frustration that they receive middling grades whether they study a little or a lot. Without more individualized feedback, they conclude that their abilities are fixed and that hard work is pointless.

Research by Dweck and other psychologists suggests that, if we could reform our culture to change these mindsets, all of our students would achieve more. That in itself would be a laudable goal.

Back to Affirmative Action

I started these posts, however, by exploring the particular plight of minority students. In my last post, I extended that journey to consider the impact of affirmative action programs. As I noted there, programs rooted in a fixed-intelligence belief may depress the grades of minority students (although those programs may still confer other benefits by opening doors to more elite schools).

In my next and final post of this series, I will describe a different type of affirmative action program–one committed to a belief in fluid intelligence. As we’ll see, that type of program could enhance performance by minority students. A culture endorsing fluid intelligence, furthermore, could improve achievement among all law students.

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Affirmative Action and Fixed Intelligence

September 6th, 2015 / By

I wrote this summer about a study demonstrating a worrisome trend among minority law students: They received lower grades than white peers with similar LSAT scores, undergraduate achievements, and work experience. Part of the problem, I suggested in a second post, may stem from the psychological phenomenon of stereotype threat. When individuals are placed in situations in which a group stereotype suggests that they will perform badly, they do just that. Remove the stereotype threat and performance improves to match that of other individuals with similar experience and abilities.

Stereotype threat arises in part from the implicit racial bias that permeates our culture. If professors, classmates, friends, and family members see minority students as less capable than white ones, those perceptions can become self-fulfilling prophecies. Unconscious bias, unfortunately, is invisible only to the holders of that bias; targets readily perceive the negative assumptions and respond to them.

What About Affirmative Action?

How does affirmative action affect this dynamic? Some critics of affirmative action suggest that special admissions programs simply aggravate stereotype threat–ultimately harming the students they intend to help. Minority students, they reason, know that at least some members of their group lack the credentials of white students; they are “less qualified” to attend law school than their peers. This knowledge, critics reason, will trigger an extreme form of stereotype threat. Knowing that their racial/ethnic group is less qualified than the dominant white group–and that professors know this–minority students will perform poorly.

Does this phenomenon explain the poor performance of minority students in law schools? Should we abandon all traces of affirmative action to improve the achievements of minority students?

Not from my perspective. Instead, we need to examine our own attitudes toward affirmative action. Those attitudes, which inform a law school’s culture, spell the difference between programs that assist minority students and those that may harm them. To explain this, we also need to explore the nature of intelligence: Is an individual’s intelligence fixed at some point early in life? Or is it fluid? I will explore these issues in a series of posts.

Fixed-Intelligence Affirmative Action

Many critics of affirmative action assume that intelligence is fixed. When we admit minority students with lower LSAT scores than their white classmates, these critics assume, we know that the minority students will perform more poorly in law school. They have less law-related intelligence (as measured by LSAT tests) and, thus, are fated to lower performance.

These critics acknowledge that intelligence is not the only factor affecting achievement. Hard work, catch-up tutoring, and faculty encouragement, they concede, may improve a student’s grades. In their view, however, this simply adds to the cost of affirmative action programs. Schools must devote special resources to tutoring programs, and faculty must provide special encouragement to minority students. The pay-off, from the critics’ perspective, is small. Minority students, they argue, would fare better if they attended schools where their fixed intelligence matched that of their white peers.

Many supporters of affirmative action programs also believe in fixed intelligence. These supporters quietly assume that minority students have less law-related intelligence than their white peers, but they blame that difference on historical and contemporary discrimination. Since society has damaged minority students, these professors reason, we owe them special consideration in admissions. We should give them the opportunities they might have had if they had not experienced a lifetime of overt and subtle discrimination. With hard work, special tutoring, and faculty encouragement, at least some of these students will achieve more than their predictors indicate. Even those who finish near the bottom of the class will benefit from the reputation and network connections of a more prestigious school than one they might have attended without affirmative action.

These attitudes, whether expressed critically or supportively, may well reduce the performance of minority students. In addition to creating stereotype threat, these attitudes tell minority students: “Intelligence is fixed by the time students enter law school and, for whatever reason, yours is lower than that of your classmates.” As we’ll see in my next post, belief in fixed intelligence harms students as much as stereotype threat. Minority students, therefore, suffer a double injury when surrounded by these attitudes.

These attitudes, it’s important to note, need not be overt to affect students. Few professors announce to their classes: “Your intelligence is fixed. You’ve either got it or you don’t. See you at the end of the semester.” The beliefs, however, are there. Law school, in fact, seems centered on a theory of fixed intelligence. Our focus on LSAT scores (aggravated by the US News ranking competition), the lack of feedback designed to enhance performance, and the strict grading curves suggest that we believe our students’ intelligence is fixed.

Add assumptions about low-performing minority students to that mix, and you have a recipe for stereotype threat and reduced performance–even among minority students with entering credentials that match those of white peers.

Another Way

Fortunately, it doesn’t have to be this way. There is a way to conceptualize affirmative action programs that is both more cognitively accurate and more supportive of minority students. If we can reform our law school culture to embrace the reality of fluid intelligence, we will reveal the true justification for affirmative action programs, allow minority students to reach their full potential, and improve learning for all students. In my next two posts, I will explore the concept of fluid intelligence and how it can inform our beliefs about affirmative action.

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