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COVID-19 and the Bar Exam

March 23rd, 2020 / By

The news about COVID-19 gets worse by the hour. People are dying. The virus is spreading. Health care workers lack protective gear. Businesses are closed. We are sheltered at home. In the midst of these life-or-death matters, it seems mundane to worry about the July 2020 bar exam.

But we need to plan for the July bar, just as we need to think about every other part of life affected by the pandemic. Jurisdictions almost certainly will not be able to administer the exam in its usual format–to hundreds of test-takers gathered in large rooms or arenas. What should they do instead?

Over the weekend, I joined with a team of researchers to propose alternatives for licensing the Class of 2020. Our short paper is available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3559060. We don’t have all the answers, but we think it is critical to start the conversation. Decisions about the July bar must be made during the next few weeks.

If you have comments or additional suggestions, please let us know. As we state at the end of the paper: These are unprecedented times and we must work together to meet them. Our society must first work to secure its health, but intense legal needs will follow soon thereafter. We can’t afford to leave the talented members of the Class of 2020 sitting on the sidelines as those needs erupt. It is time to call all hands on deck.

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Ranking Academic Impact

February 17th, 2020 / By

Paul Heald and Ted Sichelman have published a new ranking of the top U.S. law schools by academic impact. Five distinguished scholars comment on their ranking in the same issue of Jurimetrics Journal in which the ranking appears. But neither the authors of this ranking nor their distinguished commentators notice a singular result: The Heald/Sichelman rankings include a law school that does not exist.

According to Heald and Sichelman, Oregon State ranks 53d among U.S. law schools for its SSRN downloads; 35th for its citations in the Hein database; and 46th in a combined metric. Oregon State, however, does not have a law school. The University of Oregon has a law school, but it appears separately in the Heald/Sichelman rankings. So Heald and Sichelman have not simply fumbled the name of Oregon’s only public law school.

Instead, it appears that my own law school (Ohio State) has been renamed Oregon State. I can’t be sure without seeing Heald and Sichelman’s underlying data; even the “open” database posted in Dropbox refers to the nonexistent Oregon State. But Ohio State, currently tied for 34th in the US News survey, seems conspicuously absent from the Heald/Sichelman ranking.

I’m sure that my deans will contact Heald and Sichelman to request a correction–assuming that Oregon State actually is Ohio State. Oregon State Law School’s administrators probably will not complain. They can’t celebrate either, of course, because they don’t exist. But apart from that correction, let’s ruminate on this error. What does it have to say about rankings?

Reliability

A mistake like this obviously raises doubts about the reliability of the Heald/Sichelman ranking. If an error of this magnitude exists, what other errors lurk in the data? Even if you like the Heald/Sichelman method, how do you know it was carried out faithfully?

Some errors plague any type of large quantitative study, but an error of this nature is unusual. One of the key rules of quantitative analysis is to step back from the data periodically to ask if the patterns make sense. Surprising results may represent genuine, novel insights–but they can also be signs of underlying errors.

Heald and Sichelman studied the correlations between their rankings and several other measures. Didn’t they notice that one school produced a missing value? And when discussing schools that had highly discrepant rankings, didn’t they notice that one school in their scheme did not appear at all in other ranking schemes?

It’s possible, of course, that Heald and Sichelman misnamed Ohio State throughout their database so that they compared Oregon State’s Heald/Sichelman rank with the same misnamed school’s US News rank. Or perhaps the error slipped in near the end when they or an assistant changed “Ohio” to “Oregon” in the article’s spreadsheets.

Quantitative researchers who have their hands deeply in the data, however, should catch errors like this. Even after Heald and Sichelman banish Oregon State from their ranking, I will retain doubts about the reliability of their data. And my doubts about the reliability of other rankings, no matter how “scientific,” have been aroused.

For What Purpose?

Heald and Sichelman’s error is troubling, but I am equally concerned about the failure of any of their readers to spot the mistake. How could five commentators, as well as numerous other readers and workshop participants, blithely skim over the nonexistent Oregon State? Even if they weren’t familiar with Oregon’s law schools, weren’t they surprised to see Oregon State ranked 35th for Hein citations? The three schools in that state currently appear as 83d, 104th, and in the unranked fourth tier of the US News survey. Shouldn’t someone have noticed the surprising strength of Oregon State’s faculty?

I suspect that no one noticed the presence of Oregon State because most faculty read rankings primarily to see where their own school ranks. That’s what I did: I was curious where my own faculty ranked and, when Ohio State was absent, I looked more closely. It was only then that I noticed a law school that doesn’t exist.

But if that is the use of these academic impact rankings, to give faculty comfort or angst about where their law school ranks, are these rankings worth producing? They require a great deal of work and number crunching, as Heald and Sichelman make clear. Even with their presumably careful work, a substantial mistake occurred. Is the pay-off (including mistakes) worth the effort?

More worrisome, I think these rankings will harm the legal profession and its clients. Legal educators are key stewards of the legal profession. We are the profession’s primary gatekeepers: Few people become lawyers without first earning our diplomas. We are also responsible for giving students the foundation they need to serve clients competently and ethically.

Rankings of academic impact almost certainly will incentivize schools to invest still more of their resources in faculty scholarship—which, in turn, will raise tuition, reduce student discounts, and/or divert money from preparing students for their essential professional roles.

Scholarship is part of our commitment to the profession, clients, and society, but only one part. Over the last 20 years, I have seen law schools shift increasing resources to scholarship, while reducing teaching loads and raising tuition rapaciously. We produced excellent scholarship before 2000–scholarship that created fields like critical race theory, law and economics, feminist theory, and social science analyses of law-related issues. There is much still to explore, but why does today’s scholarship demand so many more resources? And will rankings further accelerate that trend?

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Women Law Students: Still Not Equal

January 5th, 2020 / By

The Law School Survey of Student Engagement (LSSSE) released its annual report just before the holiday break. This year’s report, titled “The Cost of Women’s Success,” explores the gendered nature of law students’ experience.

I had the honor of contributing a Foreword to the LSSSE report. Summing up the report’s findings, I wrote:

Two law students, a woman and a man, sit side-by-side in class. From the podium, they look similar: both concentrate intently on the professor, take notes, and listen to classmates’ comments. But, as this LSSSE report reveals, their broader law school experiences likely diverge in meaningful ways.

The man is more likely to have a parent who was a lawyer; he is also more likely to have a parent who attended college. When the professor pauses for questions, the man is more likely to raise his hand. If the man and women are Latinx, the gender difference in classroom participation will be particularly stark.

After class, the man is more likely to exercise, read for pleasure, and pursue other leisure activities. The woman is more likely to attend a student organization meeting, email a professor, or speak to an advisor about her career plans.

At the end of the day, the woman is less likely than the man to get a full night’s sleep: half of LSSSE’s women respondents report that they average no more than five hours of sleep a night. And when the woman wakes to face another demanding day, she is less likely to find institutional support for her burdens.

Nor do the woman’s challenges end with graduation. She is more likely than the man to shoulder high debt as she enters the workplace. Those differences, like others noted in this report, sharpen at the intersection of gender and race. Sixteen percent of Latinas borrow more than $200,000 to attend law school, compared to 12% of Latinos and 4.3% of White men.

Despite these differences, women succeed in law school. Among LSSSE respondents, women’s reported grades exceeded those of men. That was true for women overall, as well as within each racial or ethnic group. As the report’s title suggests, however, women succeed at a cost: less sleep, fewer wellness activities, and more debt.

In this new year, law schools need to look more deeply at the gender differences that color our students’ experience. Those of us who stand at the podium (faculty and administrators) see the equal numbers of men and women sitting before us. We pride ourselves on that equity without probing below the surface. Feminist scholars, including some student authors, have continued to illuminate the gendered nature of legal education. Now LSSSE adds to that literature through the voices of more than 18,000 law students.

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Civil War Generals

August 16th, 2017 / By

George Henry Thomas went to work as a law clerk in nineteenth century Virginia. Fortunately for the United States, he found that the work “lacked excitement” and he enrolled in the United States Military Academy at West Point. After Thomas gained field experience, he was invited back to West Point as an instructor. There, Thomas gained both the respect and friendship of the Academy’s commandant, Robert E. Lee.

Thomas and Lee later traveled to the southwest, serving on military missions and deepening their friendship. The two particularly shared a love of their homeland Virginia.

And then Virginia seceded from the Union.

We all know what happened to Lee. He declined a top post in the Union Command and renounced his oath to the United States. He led the confederate army for much of the Civil War, defending an economy and lifestyle based on white ownership of black slaves. He invaded the nation he had sworn to protect, killing more than 5,200 Union soldiers at Gettysburg and Antietam alone: that’s more deaths on American soil than the number who died during the homeland attacks on Pearl Harbor or the World Trade Center.

Overall, Americans suffered more casualties in the Civil War than in all other wars combined.

But what happened to Thomas? Despite his love of Virginia and family ties to that state, he refused to break his oath to the United States. The erstwhile law clerk commanded Union troops throughout the Civil War, from Mill Springs (where he gave the Union its first serious battlefield victory) to the March on Atlanta. Thomas’s family renounced him for remaining loyal to the United States; his confederate friends called for him to be hung as a traitor.

When the war ended, Thomas led troops overseeing Reconstruction. He helped defend freed slaves from local governments and the newborn Ku Klux Klan. In 1868, he warned about attempts to lionize the confederacy:

The greatest efforts made by the defeated insurgents since the close of the war have been to promulgate the idea that the cause of liberty, justice, humanity, equality, and all the calendar of the virtues of freedom, suffered violence and wrong when the effort for southern independence failed. This is, of course, intended as a species of political cant, whereby the crime of treason might be covered with a counterfeit varnish of patriotism.

How many statues have Americans erected to honor the man who kept his oath to his country, fought against slavery, and recognized the evils of romanticizing the confederacy? Just one (in Washington, D.C.).

How many statues have we erected to Lee, the man who broke his oath, defended slavery, invaded his former country, and led a war that killed more than half a million Americans? Too many.

We need not excoriate Lee today: reconciliation is part of ending conflict. But it’s long past time to take down all the statues, and we are sadly mistaken to honor him as a leader. We need to come to terms with the way in which Americans have romanticized the confederacy and its culture.

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

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