Don’t Disparage

January 7th, 2023 / By

The AALS Annual Meeting is wrapping up here in San Diego. I’ve attended several terrific panels, enjoyed time with old and new friends, and had many engaging conversations. But one comment from this meeting will particularly stick with me. Those are some words from Dean Danielle Conway, uttered during an “author meets reader” session focused on Joan Howarth’s superb new book, Shaping the Bar.

“Legal educators,” Dean Conway said, “should stop disparaging one another.” I thought immediately of all the cutting comments I’ve heard (and, I confess, made) over the decades of my academic career. But Dean Conway’s point referred to more than this individual sniping. She noted that whenever we say things like “top-20 law school,” “national law school,” or “top law school,” we implicitly disparage other law schools. And we use those attributions to cloak ourselves in the same kind of gauzy prestige that we purport to deplore in US News.

Why do we so often feel the need to define ourselves as better than others? Or to define ourselves in ways that sharpen divisions in the legal academy? “I teach at a school that values scholarship.” “I teach at a school that values teaching.” “I’m a theory person.” “I’m a hands-on practice person.”

I’m not naive enough to think that we can erase comments that implicitly disparage others. And sometimes it is worthwhile to talk about our differences, especially if we can move past rhetoric to talk about the actions behind those words. How exactly does your school value scholarship or teaching? Is it possible to value both equally? Why not?

But even if we can’t eliminate comparative identifications from our conversations, I’d like us at least to note those phrases when they occur. Was it necessary to refer to a school as a “national one”? Or to note that a friend teaches at a “top 20 law school”? As Dean Conway so acutely points out, we cast a lot of negativity with those phrases.

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This Year Is Still Different: An Outdated Bar Exam in Troubled Times

July 19th, 2022 / By

** This post is coauthored with Sara J. Berman, Marsha Griggs, and Carol Chomsky. All four of us are members of the Collaboratory on Legal Education and Licensing for Practice, a group of 10 scholars who have studied and written about the bar exam, licensing, and legal education for many years.**

Applicants for the July 2022 bar exam are buckling down for their final days of bar study. After two years of delays, remote testing, and other COVID-related changes, states have returned to traditional bar examination practices. For most applicants, this means two days of testing in large convention centers or hotel ballrooms. Following tradition, applicants will again answer questions from memory about a dozen or more doctrinal areas.

But this year’s examinees are different from those who preceded them. The pandemic overshadowed the entire law school career of 2022 graduates. Classes abruptly went online during their first year. Many received only pass/fail grades for their spring semester. That was essential relief for an upended semester, but the remedy deprived students of more nuanced information about their progress.

The pandemic continued to dog the class of 2022, limiting both work and externship opportunities. Many lost the chance to meet mentors, work in law offices, and develop confidence in their lawyering abilities. Second-year classes remained mostly online, escalating zoom fatigue and isolation. Even during their third year, when restrictions eased, extra-curricular activities and meetings were limited. Peers and professors hurried out of the room after class, reluctant to expose themselves to the latest COVID variant. Informal exchanges about the law, lawyering, and career prospects were limited for this class of aspiring attorneys.

And that’s not all. The class of 2022 experienced George Floyd’s murder at the end of their first year, a bloody attack on democracy and the Capitol during their second year, and a leaked opinion reversing Roe v. Wade during their third year. Whatever their personal beliefs about abortion, the leaked Dobbs opinion raised alarming questions about the Constitution, constitutional interpretation, and the future of other rights guaranteed by previous Courts—just as these students started studying Constitutional Law for the bar exam.

And then there were continued police shootings of unarmed Black people, attacks on Asian American women, Russia’s invasion of Ukraine, heartbreaking gun violence, and our ongoing failure to address planetary destruction. These are unsettling times for anyone committed to the rule of law. For law students still exploring their future as lawyers, the times weren’t just unsettling—they have been devastating. They may doubt both the rule of law and their own ability to affect the world around them.

Now these graduates must prepare for a difficult exam that they know bears little relationship to their practice as fledgling lawyers. Research by NCBE and others has confirmed this mismatch. A new exam may address some of these flaws, but that exam won’t be ready until 2026. Meanwhile, today’s graduates must recall hundreds of detailed rules from memory. They must also prepare to answer essay questions on conflicts of law, family law, secured transactions, and trusts and estates—all subjects that NCBE has decided need not be tested. And they will not have a chance to show their competence at negotiation, client counseling, and other skills that NCBE now acknowledges should be assessed.

As a profession, we have a responsibility to help today’s bar takers. Pandemic graduates carry a heavy load of mental distress. More than a third show symptoms of depression, and 11% have seriously considered suicide during the last year. Those burdens may impair their preparation for the bar exam and their performance on it. If they do, we can’t blame the graduates for the world that surrounds them. Nor can we blame the academic support faculty who are working double-time to help this group of graduates succeed.

No, we need to look to the profession and what we can all do to help. Several states are considering non-exam pathways to licensure. If an experiential education path had existed for current graduates, they might have built a strong sense of their lawyering efficacy during law school—while learning skills and reinforcing the doctrinal knowledge they will use in practice and. If supervised practice pathways existed, recent graduates could be demonstrating their knowledge and skills by assisting real clients and learning from supervisors this month, rather than by grinding through daily doses of multiple-choice practice questions.

We have confidence in this year’s bar applicants: confidence in their abilities, their grit, and their determination. But even in the best of times, less than three-quarters of graduates pass the bar exam on their first try. And the failure rates fall disproportionately on graduates of color, the same individuals who suffered greater physical and financial burdens from COVID; emotional stress from police killings and other manifestations of racism; and loss of important mentoring opportunities during their law school years.

This, we know, is not the best of times. Offer as much encouragement and support as you can to bar-takers this week. And get involved with activities in your state to reform our licensing system. Do it for both our graduates and the clients they will serve.

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Law Books For The Price Of Printing?

June 30th, 2016 / By

Originally published on Above The Law.

library w bookLaw students spend between $3,000 and $4,000 on books during law school. For those that borrow, add another $1,000 on the 10-year plan or $2,000 on the 20-year plan. While a drop in the bucket compared to tuition and living expenses, $4,000 to $6,000 for books is not insignificant.

Shaving these costs down to the cost of printing is a common suggestion, but it does not appear to have been done at scale. In a new article in the Saint Louis University Law Journal, Professor Ben Trachtenberg from the University of Missouri School of Law outlines how to actually do it with the goal of encouraging action.

The question is: will it happen?

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