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Does Racial Diversity “Yield Educational Benefits”?
August 16th, 2021 / By Deborah J. Merritt
The Supreme Court has upheld the constitutionality of race-conscious admissions programs in higher education–but only on the ground that racial diversity improves the quality of education. Supporters and opponents of affirmative action have both criticized this rationale. Opponents deride diversity as a euphemism that masks racial quotas. Supporters protest that the concept sidesteps the original rationale for affirmative action: to recognize and remediate the discrimination that people of color have suffered–and continue to suffer–in our society. As Melissa Murray has written, rosy hued images of “diversity” insist that “changes must benefit everyone–even as we compensate for past offenses that were strictly visited upon a few.”
I share this dissatisfaction with the diversity rationale. It seems like yet another attempt to ignore the racial discrimination of our past and present. Yet, since the courts seem wedded to this rationale, it is worth asking whether it holds water. Does racial diversity “yield educational benefits,” as Justice O’Connor maintained in Grutter? The question has taken on urgency as the Supreme Court ponders a petition for certiorari in a case challenging Harvard’s admissions processes.
Spurred by this context, Adam Chilton, Justin Driver, Jonathan Masur, and Kyle Rozema designed a test of the proposition that diversity programs yield educational benefits. They focused on top law reviews that have adopted diversity programs over the last 50 years and asked: Did law reviews that adopted these programs enjoy a rise in scholarly impact (as measured by citation counts) after they adopted these programs?
The short answer is “yes,” providing an important boost to claims that diversity enhances education–as well as to advocates of diversity programs on law reviews. Now let’s look at the study in more detail.
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Peter Lederer: A Modest Proposal
August 11th, 2021 / By Deborah J. Merritt
Peter Lederer brought unflagging inspiration and insight to the legal profession. On Sunday evening he sent me a copy of his latest essay, asking if I would like to publish it as a guest post here. I responded, of course, with enthusiasm–but I’m not sure that Peter saw my response. We all learned on Monday that Peter died Sunday night. With great sadness for his death, but immense gratitude for his words, I offer here Peter’s guest post:
A Modest Proposal, by Peter Lederer
From Chief Justice Bridget Mary McCormack of the Michigan Supreme Court comes a wise concept: using the “moment of disruption” where the door to fixing intractable problems has suddenly opened. Such moments come once in a century if that often.
Astute observers of the legal landscape hold that the present system is broken. Legal education, licensure, the inability to produce “practice-ready” lawyers after seven full years of prohibitively expensive training, are all under attack.
It is true that laudable efforts to bring about reform are underway. There are brilliant studies and recommendations; noble experiments have started in several states; a few dozen law schools have nurtured (or at least permitted) the pursuit of innovative programs. But unfortunately, all this has not moved the needle much. Moreover, many who are most deeply involved in the reform efforts believe that it will be, at best, a gradual process. Were this not enough, there is an overarching problem. Despite the hundreds of billions spent annually on legal services, the vast majority of the world’s people do not have access to legal services.
(more…)Revisiting “Hemispheres” in the Legal Profession
August 28th, 2017 / By Riaz Tejani
Excerpts from “Professional Apartheid: The Racialization of U.S. Law Schools After the Global Economic Crisis” American Ethnologist 44:3, August 2017. This piece relates to the author’s recent book, Law Mart: Justice Access and For-Profit Law Schools (Stanford, CA: Stanford University Press, 2017).
The 2008 global financial collapse was a watershed for US law schools. The sudden loss of capital, triggered by overspeculation and the repackaging of debt among multinational banks, caused global corporations to cancel transactions, settle litigation, and demand greater efficiency in remaining legal-services agreements. Large global law firms laid off thousands of attorneys, canceled new recruitments, and began outsourcing work to legal temp agencies, which in turn benefited from a professional labor oversupply and the new “gig” economy. In the preceding years, US law schools had expanded their operations and planned their budgets based on tuition priced against once-widespread lucrative corporate law incomes. Now they faced austerity. And because it was already in doubt whether law school job outcome reports were accurate, the moral hazard that they generated seemed to multiply after the economic crash. Prospective students took heed. Whereas legal education had seen increased demand in prior economic downturns, this time would be different: enrollment in US law schools plunged 30 percent from 2011 to 2015.
Indexing public fascination with this, failures in legal education made headlines in the New York Times, the Wall Street Journal, Bloomberg, and the Huffington Post. In an age of new cultural insurrections like Occupy and Black Lives Matter, people grew fascinated by the discomfort of this once-elite knowledge community. Beneath those news stories lay serious lessons about difference and knowledge capitalism in the contemporary global system. The so-called crisis of legal education and the legal profession, along with the overwhelmingly market-based reaction to it, suggests something deeper about the state of social justice under neoliberal political economy. (more…)
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A Better Bar Exam—Look to Upper Canada?
July 25th, 2017 / By Eileen Kaufman, Andi Curcio, & Carol Chomsky
Today, tens of thousands of aspiring lawyers across the United States sit for the bar exam in a ritual that should be designed to identify who has the ability to be a competent new lawyer. Yet a growing chorus of critics questions whether the current knowledge-focused exam is the best way to draw that line and protect the public. As Professor Deborah Merritt has noted, “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.”
For years, the response to critiques of the bar exam has been, in effect: “It’s not perfect, but it’s the best we can do if we want a psychometrically defensible exam.” The Law Society of Upper Canada (LSUC), which governs the law licensing process for the province of Ontario, developed a licensing exam that calls that defense into question.
Overview of Law Society of Upper Canada Licensing Exam
The LSUC uses a 7-hour multiple-choice test consisting of 220 to 240 multiple-choice questions to test a wide range of competencies. For barristers (the litigating branch of the profession), that includes ethical and professional responsibilities; knowledge of the law; establishing and maintaining the lawyer-client relationship; problem/issue Identification, analysis, and assessment; alternative dispute resolution; litigation process; and practice management issues. A 2004 report explains how the LSUC identified key competencies and developed a licensing test based upon them.
Unlike the US exams, the LSUC exam is open-book, so it tests the ability to find and process relevant information rather than the ability to memorize rules. Most important, it tests a wider range of lawyering competencies than US exams, and it does so in the context of how lawyers address real client problems rather than as abstract analytical problems.
Below, we discuss how these differences address many of the critiques of the current US bar exams and make the LSUC exam an effective test of new lawyer competence. We also provide sample questions from both the LSUC and the US exam.
Open-Book Exam
Like all bar licensing exams in the United States (with the New Hampshire Daniel Webster Scholars Program as the sole exception), the LSUC exam is a pencil-and-paper timed exam. However, unlike any United States exam, including the Uniform Bar Exam, the LSUC licensing exam is open book.
The LSUC gives all candidates online access to materials that address all competencies the exam tests and encourages candidates to bring those materials to the exam. To help them navigate the materials, candidates are urged to create and bring to the exam tabbing or color-coding systems, short summaries of selected topics, index cards, and other study aids.
Lawyering is an open-book profession. Indeed, it might be considered malpractice to answer a legal problem without checking sources! As we have previously noted, good lawyers “…know enough to ask the right questions, figure out how to approach the problem and research the law, or know enough to recognize that the question is outside of their expertise and should be referred to a lawyer more well-versed in that area of law.” Actually referring a problem to someone else isn’t a feasible choice in the context of the bar exam, of course, but accessing the relevant knowledge base is.
The open-book LSUC exam tests a key lawyering competency untested by the US exam—the ability to find the appropriate legal information—and it addresses a significant critique of the current U.S. exams: that they test memorization of legal rules, a skill unrelated to actual law practice.
Candidates for the bar in Canada no doubt pore over the written material to learn the specifics, just as US students do, but they are also able to rely on that material to remind them of the rules as they answer the questions, just as a lawyer would do.
Testing More Lawyering Competencies
Like all bar exams in the US, the LSUC exam assesses legal knowledge and analytical skills. However, unlike US bar exams, the LSUC exam also assesses competencies that relate to fundamental lawyering skills beyond the ability to analyze legal doctrine.
As Professor Merritt has noted, studies conducted by the National Conference of Bar Examiners [NCBE] and the Institute for the Advancement of the American Legal System confirm the gaps between the competencies new lawyers need and what the current US bar exams test, citing the absence of essential lawyering competencies such as interviewing principles; client communication; information gathering; case analysis and planning; alternative dispute resolution; negotiation; the litigation process; and practice management issues.
The NCBE has justified their absence by maintaining that such skills cannot be tested via multiple-choice questions. However, as illustrated below, the LSUC exam does just that, while also raising professional responsibility questions as part of the fact patterns testing those competencies.
Testing Competencies in Context of How Lawyers Use Information
The LSUC exam attempts to capture the daily work of lawyers. Rather than test knowledge of pure doctrine to predict a result as the US exams tend to do, the LSUC used Bloom’s taxonomy to develop questions that ask how knowledge of the law informs the proper representation of the client.
The LSUC questions seek information such as: what a client needs to know; how a lawyer would respond to a tribunal if asked “x”; where a lawyer would look to find the relevant information to determine the steps to be taken; and what issues a lawyer should research. That testing methodology replicates how lawyers use the law in practice much more effectively than do the US exams.
The LSUC exam format and content addresses a significant critique of US bar exams—that those exams ask questions that are unrelated to how lawyers use legal doctrine in practice and that the US exams fail to assess many of the key skills lawyers need.
Sample Questions from the LSUC and the MBE
Here is a sampling of LSUC questions that test for lawyering skills in a manner not addressed in US exams. These and other sample questions are available on the Law Society of Upper Canada’s website:
- Gertrude has come to Roberta, a lawyer, to draw up a power of attorney for personal care. Gertrude will be undergoing major surgery and wants to ensure that her wishes are fulfilled should anything go wrong. Gertrude’s husband is quite elderly and not in good health, so she may want her two adult daughters to be the attorneys. The religion of one of her daughters requires adherents to protect human life at all costs. Gertrude’s other daughter is struggling financially. What further information should Roberta obtain from Gertrude?
(b) The state of Gertrude’s marriage.
(c) Gertrude’s personal care wishes.
(d) Gertrude’s health status.
- Tracy was charged with Assault Causing Bodily Harm. She has instructed her lawyer, Kurt, to get her the fastest jury trial date possible. The Crown has not requested a preliminary inquiry. Kurt does not believe that a preliminary inquiry is necessary because of the quality of the disclosure. How can Kurt get Tracy the fastest trial date?
(b) Bring an 11(b) Application to force a quick jury trial date.
(c) Conduct the preliminary inquiry quickly and set down the jury trial.
(d) Elect on Tracy’s behalf trial by a Provincial Court Judge.
- Peyton, a real estate lawyer, is acting for a married couple, Lara and Chris, on the purchase of their first home. Lara’s mother will be lending the couple some money and would like to register a mortgage on title. Lara and Chris have asked Peyton to prepare and register the mortgage documentation. They are agreeable to Peyton acting for the three of them. Chris’ brother is also lending them money but Lara and Chris have asked Peyton not to tell Lara’s mother this fact. Should Peyton act?
(b) No, because there is a conflict of interest.
(c) Yes, because the parties are related.
(d) No, because she should not act on both the purchase and the mortgage.
- Prior to the real estate closing, in which jurisdiction should the purchaser’s lawyer search executions?
(b) Where the seller’s real property is located.
(c) Where the seller’s personal property is located.
(d) Where the seller is moving.
[These questions test the applicant’s understanding of: the information a lawyer needs from the client or other sources, strategic and effective use of trial process, ethical responsibilities, and knowledge of the real property registration system, all in the service of proper representation of a client. Correct answers: c, a, b, b.]
Compare these questions to typical MBE questions, which focus on applying memorized elements of legal rules to arrive at a conclusion about which party likely prevails. [More available here.]
- A woman borrowed $800,000 from a bank and gave the bank a note for that amount secured by a mortgage on her farm. Several years later, at a time when the woman still owed the bank $750,000 on the mortgage loan, she sold the farm to a man for $900,000. The man paid the woman $150,000 in cash and specifically assumed the mortgage note. The bank received notice of this transaction and elected not to exercise the optional due-on-sale clause in the mortgage. Without informing the man, the bank later released the woman from any further personal liability on the note. After he had owned the farm for a number of years, the man defaulted on the loan. The bank properly accelerated the loan, and the farm was eventually sold at a foreclosure sale for $500,000. Because there was still $600,000 owing on the note, the bank sued the man for the $100,000 deficiency. Is the man liable to the bank for the deficiency?
(b) No, because the bank’s release of the woman from personal liability also released the man.
(c) Yes, because the bank’s release of the woman constituted a clogging of the equity of redemption.
(d) Yes, because the man’s personal liability on the note was not affected by the bank’s release of the woman.
- A man arranged to have custom-made wooden shutters installed on the windows of his home. The contractor who installed the shutters did so by drilling screws and brackets into the exterior window frames and the shutters. The man later agreed to sell the home to a buyer. The sales agreement did not mention the shutters, the buyer did not inquire about them, and the buyer did not conduct a walkthrough inspection of the home before the closing. The man conveyed the home to the buyer by warranty deed. After the sale closed, the buyer noticed that the shutters and brackets had been removed from the home and that the window frames had been repaired and repainted. The buyer demanded that the man return the shutters and pay the cost of reinstallation, claiming that the shutters had been conveyed to him with the sale of the home. When the man refused, the buyer sued. Is the buyer likely to prevail?
(b) No, because the window frames had been repaired and repainted after removal of the shutters.
(c) Yes, because the shutters had become fixtures.
(d) Yes, because the man gave the buyer a warranty deed and the absence of the shutters violated a covenant of the deed
[Correct answers: d, c]
We Can Build a Better Bar Exam
As illustrated above, the LSUC exam shows that it is possible to test a far wider range of competencies than those tested in US bar exams.
Does the LSUC exam address all of the flaws of US bar exams? No—one problem that persists for both the LSUC and US exams is the requirement for rapid answers (less than 2 minutes per question), which rewards an ability and practice not associated with effective lawyering.
Does the LSUC exam fully address experiential skills? No—LSUC also requires applicants to “article” (a kind of apprenticeship with a law firm) or participate in the Law Practice Program (a four-month training course and a four-month work placement).
But the exam does what the NCBE has told us cannot be done. It is a psychometrically valid exam that assesses skills far beyond the competencies tested on US bar exams: skills such as interviewing, negotiating, counseling, fact investigation, and client-centered advocacy. And its emphasis is on lawyering competencies—using doctrine in the context of client problems.
Eileen Kaufman is Professor of Law at the Touro College, Jacob D. Fuchsberg Law Center.
Andi Curcio is Professor of Law at the Georgia State University College of Law.
Carol Chomsky is Professor of Law at the University of Minnesota Law School.
LSAC Throws a Temper Tantrum
August 17th, 2016 / By Kyle McEntee
The Law School Admissions Council has thrown its latest tantrum.
In a letter to admissions professionals around the country, LSAC’s president, Daniel Bernstine, signaled that LSAC would stop certifying the accuracy of each law school’s LSAT and undergraduate GPA statistics. The certification is a joint effort between LSAC and the ABA to prevent law schools from lying about their admissions statistics.
LSAC agreed to certify admissions statistics in 2012 after months of roundly dismissing calls for certification. The group had claimed that certification would be cost prohibitive, despite nearly $60 million in total revenue in 2011 and a $10.7 million surplus in 2012. The group also claimed that certification was outside the scope of its organizational mission, despite its member law schools saying that LSAC was best positioned to protect the integrity of the admissions process.
Pressure mounted in 2011 and 2012 for LSAC to help the ABA after two law schools intentionally reported fraudulent data to the ABA and elsewhere, including to U.S. News and World Report for their annual law school rankings. In February 2011, Villanova University School of Law reported that an official at the law school intentionally reported fabricated LSAT and GPA statistics for an unknown number of years prior to 2010. Later that year, the University of Illinois College of Law admitted to intentionally fabricating the same statistics over a seven-year period. The school’s assistant dean for admissions and financial aid, Paul Pless, resigned as a result of the controversy.
This tantrum is LSAC’s second one this year. Both came after the University of Arizona James E. Rogers College of Law announced that the school would allow applicants to submit GRE scores in place of LSAT scores.
At that time, LSAC threatened to strip Arizona of its membership, which would eliminate access to a variety of services. LSAC walked back the threat in May after pressure from its membership and anti-trust concerns.
So why is the ABA now the latest recipient of LSAC’s retribution?
In response to law schools hoping to utilize the GRE as a non-exclusive alternative to the LSAT, which is designed and administered by LSAC, the ABA is examining whether the GRE meets Standard 503. That standard provides that schools must use a “valid and reliable admission test to assist the school and the applicant in assessing the applicant’s capability of satisfactorily completing the school’s program of legal education.” The LSAT is the only nationally validated test as of right now, though Arizona independently validated the GRE and other schools are trying to also.
(more…)
Alternative Publishing Models For Cost-Conscious Professors
July 13th, 2016 / By James Grimmelmann
Casebooks are shockingly expensive. The latest edition of Stone, Seidman, Sunstein, Tushnet, and Karlan’s Constitutional Law has a list price of $242. It’s even more shocking when you consider where the money goes. Not to pay for the cases and other primary materials that make up most of a casebook’s contents: they’re public domain and free to all. Mostly not to cover printing costs: the paperback edition of The Power Broker (to pick a book with the same word count and heft as a casebook) has a list price of $26, and you can buy it on Amazon for $18. Mostly not to authors: royalty rates are typically 10% to 20%. No, most of that money ends up in the pockets of the casebook publishers and other middlemen in the casebook chain. This is a tax on legal education, sucking money from law students and from the taxpayers underwriting their student loans. (more…)
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Law Books For The Price Of Printing?
June 30th, 2016 / By Kyle McEntee
Originally published on Above The Law.
Law 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?
(more…)
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Lessons for Online Legal Education
June 5th, 2016 / By Deborah J. Merritt
An increasing number of law schools are creating online courses, certificate offerings, and degree programs. As newcomers to online education, we should look to existing programs for inspiration. One of those is Harvard Business School’s successful CORe program, an online certificate course in business basics. I wrote about CORe’s suitability for law students several weeks ago. Here, I examine three lessons that the program offers to law schools interested in online education.
Engines of Anxiety
April 29th, 2016 / By Deborah J. Merritt
Two sociologists, Wendy Nelson Espeland and Michael Sauder, have published a book that examines the impact of US News rankings on legal education. The book, titled Engines of Anxiety, is available as an e-book through Project Muse. If your university subscribes to Project Muse (as mine does), you can download the book and read it for free on your laptop or tablet. If you don’t have access to a university library, some public libraries also subscribe to books through Project Muse. It’s a great way to read academic books and journals. H/t to TaxProf for noting publication of this book.
Trial Over Law School’s Job Statistics Symbolizes an Industry Gone Wrong
March 14th, 2016 / By Kyle McEntee
Originally published online and in print in the National Law Journal.
In May 2011, Anna Alaburda filed a lawsuit against Thomas Jefferson School of Law alleging that the school in San Diego lured students with deceptive and fraudulent employment statistics in violation of California consumer protection laws. With the trial starting last week, Alaburda’s case highlights how far the law school transparency movement has come in reforming U.S. legal education.
Outsourcing, automation and a thriving legal tech industry have fundamentally changed the legal profession. Law firms large and small closed or laid off huge swaths of attorneys in the wake of the Great Recession. Even recently, in February, Milwaukee’s largest minority-owned firm, Gonzalez Saggio & Harlan, abruptly discontinued its business, laying-off more than 100 attorneys and 200 staffers. Many remaining jobs on the legal market are temporary or paying low wages.
But Alaburda’s claims about an unknown glut of law school graduates predate the financial crisis. After graduating from New York University in 2002 and working for several years, she started law school in 2005. Her lawsuit reflects several decades of unethical marketing from law schools of all types.
When Alaburda applied, Thomas Jefferson and the American Bar Association reported a graduate employment rate north of 80 percent. In court documents, she alleges that she relied on reports about Thomas Jefferson’s success in deciding to enroll.
To say she should have known better is to miss the cultural context in which she made her decision. Until only recently, “education debt is not bad debt” dominated career advice that college provides a positive return on investment. Law school especially has been portrayed as a ticket to financial security or even wealth. Students are told to and, indeed, want to trust the institutions they’re seeking to attend for higher education. To mistrust schools, your advisers and common wisdom required a divergent leap of faith.
Alaburda decided to attend law school before The New York Times, Wall Street Journal, National Public Radio, The Washington Post and hundreds of other publications covered misleading employment statistics. Coverage of law school deception started in earnest in April 2010 in this very publication — nearly five years after Alaburda started law school. That fall, after decades of conditioning, law school enrollment peaked while thousands of recent and not-so-recent graduates began to realize they were not alone in feeling duped. Against an overwhelmingly positive cultural backdrop, they misplaced their trust.
(more…)
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