Bar Exam Under Fire

Interesting article the other day in the New York Times.  A few states are looking into allowing people to practice law without first passing the bar exam.  Wisconsin is the only state that currently does this, but the article explains that Arizona, Iowa, and New Hampshire have at least considered no longer requiring bar passage as a prerequisite for legal practice.

I wish I could give you a strong take on this–either “this is fantastic!” or “this is horrible!”–but I’m afraid I’m somewhere in the middle on this.  The purpose of the bar exam is to protect consumers of legal services from . . . well, this is where it gets tricky.  The only thing we can say for sure is that we’re protecting them from being represented by attorneys who have not passed their state’s bar exam.  The idea, of course, is that in order to pass the bar you have to be reasonably smart and hard-working, and clients surely deserve attorneys who are both of those things.  One could argue that people who pass the bar exam also know a lot about the law, but in my experience that kind of stops being true within a few hours of completing the exam.

Some question whether the bar exam really tests how smart people are as opposed to testing their ability to memorize rules, which I agree isn’t all that essential to good lawyering.  However, the two bar exams I took, Florida and California, both contained significant writing and analysis components.  In California, as I recall, the multiple choice section accounted for just one third of the test (two half-day sessions in a three-day exam).

In the article, Professor Kristin Booth Glen of CUNY criticizes the bar exam as being part of a “guild mentality that there should be a barrier to prevent the legal market from being flooded during times when fewer jobs are available.”  The problem with this argument is that there absolutely should be barriers to prevent the market from being flooded and, more important, to prevent people from going to law school and then not getting a job practicing law.  However, those barriers should be erected at the front end, before students accumulate $172k in debt.

In the end, I’m open to bar exam alternatives as long as they ensure, to the extent possible, that those permitted to practice law are reasonably smart and diligent.  This is where New Hampshire’s program, which I’ve criticized before, falls short.  I would have no problem waiving the bar passage requirement for people who graduate, say, in the top 10% of the class at a top 10 law school.  That is a very impressive accomplishment, and one that tells me much more about a person’s fitness to practice law than does passing a single exam, however difficult it may be.  Of course, nobody is proposing waiving the bar passage requirement for those people, and any such proposal would immediately be met with complaints of elitism and exclusion.  (Never mind that as a client, I would want an elite attorney, and I’d want the legal profession to exclude a lot of people.)

Don’t all apply at once now

This post may be somewhat controversial, as it’s critical of another law school.  But I simply cannot let this pass without comment.  A few days ago I received an email with a job listing from the University of Florida Levin College of Law.  U-F is seeking applicants for a Lecturer position in its Legal Drafting Program.  So far, so good.  The listing goes on to state that the salary for the position will be $50,000-$53,000, “commensurate with qualifications and experience.”  What the listing does not say but should is this:  “the work you would do in this job is not particularly important to, or valued by, the law school.”  Not only is the salary shockingly low (Gainesville is cheap, but it’s not that cheap), but the range is the narrowest I’ve ever seen in a job listing in this field.  So the other message being conveyed here is that it is not important to U-F that this position be filled by someone with outstanding qualifications and experience.  In fact, we know exactly how much that’s worth to U-F:  $3,000.



The always-excitable Above The Law is reporting that Charleston School of Law is offering buyouts to some of its tenured professors.  Apparently this is big news to ATL, and the headline even includes the word “yikes.”  I’ve been operating on the assumption that most law schools are currently offering buyouts to tenured professors, with varying levels of both aggressiveness and formality.  I doubt many schools are sending letters like Charleston did, but I think it’s safe to assume that just about every law school in the country is doing whatever it can to cut spending and increase revenue.  Enrollment is down just about everywhere, which means revenue is down.  Schools have to do something.

Consider the following hypothetical:  somewhere in America today, a tenured law professor making $250,000 a year walks into her dean’s office and says, “I’m thinking of leaving.  What’s it worth to ya?”  I don’t think many deans would respond by saying, “get out of my office right now and continue to work here for another 25 years.”  No, I think the response just about anywhere would be to negotiate some kind of buyout.

A Word to the Wise

I’m continually amazed at how little my students know about Microsoft Word.  It’s gotten so bad that one of my colleagues has explored offering some kind of training course for the students.  I think that in any law office or organization where our students will work after graduation, there will be an expectation that everyone working there knows the basics of Word.  You should know what track changes are and how they work, what the red and green underlining means, how to indent a paragraph, how to create one-inch margins, etc.  None of this is difficult, but not knowing this stuff really affects the quality of a legal document.

Scott Walker: Winning

If you’re having trouble falling asleep tonight, this WaPo piece on Scott Walker should do the trick.  The Post went digging through Gov. Walker’s past, including talking to a bunch of people who knew him thirty years ago.  What did they learn?  Well, it seems our next President was late for French class in college.  VERY late.  And not just once, but several times.

Assuming Walker’s campaign can recover from this shocking revelation, he will eventually need to explain the central mystery explored in the article:  what kind of person running for student-body president has a campaign manager?  Seriously, is this really a thing?  Did he have a press secretary too?  A body man?  Bundlers?

Anyway, if Walker really is going to be the GOP nominee, as some of the talking heads claim to believe, the next 21 months are going to be incredibly boring.

Notes on a scandal (or eight)

Lock your doors, fellow citizens.

The National Law Journal is all over a major crime wave–an epidemic, I daresay–visited upon this great nation by its law school administrators and professors.  In just the last fifteen years, no less than eight (!) such persons have been accused of offenses ranging from child abuse to reporting inflated data about incoming students to U.S. News & World Report.  (Yes, those two things are mentioned in the same article.)

Four of the eight “scandals” mentioned in the article involved some variation of soliciting a prostitute.  (Next time somebody offers you money for sex, consider asking him what subject he teaches.)  100% of the hardened criminals profiled are male, so it appears that our female employees are behaving themselves, at least for now.

When will the next shoe drop?  If history is any guide, we won’t have to wait long.  Eight scandals in fifteen years projects to one every 1.875 years.  The SMU scandal is only a few weeks old, so by my projections, an undercover police officer posing as a prostitute will likely be solicited by a law professor sometime around December of 2016.

You’ve been warned, America.


Bossy or Brilliant?

Interesting piece in the Times today about how students evaluate professors.  Most of this is likely familiar to anyone in academia:  for example, male professors are more likely to be described as smart, brilliant, knowledgeable, etc., while females are more likely to be described as bossy or disorganized.  The most interesting thing to me is the study where male and female professors returned papers at the exact same time, and yet the students gave the male professors higher marks for “promptness.”

There is some good news in the article.  The guy who did the study was “surprised that relatively few people commented on female professors’ clothing or looks.”

I’m often struck by how much confidence my students have in me.  Based on the questions they ask in class, they really think I know everything, when the truth is I only practiced law for six years.  I haven’t practiced in nearly five years, I’ve tried one case in my life, I know next to nothing about criminal law, and my knowledge of substantive civil law is limited to the relatively few areas encountered by a BIGLAW associate.  The students’ perception that “he must know something” (or everything!) is probably partly attributable to the fact that, as an almost-middle-aged white guy in a suit, I at least look like a lawyer to them.

Correction of the day

Quite the doozy of a correction in this New York Times article on Republican Presidential candidates and vaccines:

Correction:  February 3, 2015
An earlier version of this article gave incomplete context for a quote by President Obama. When he said of autism and other disorders among children, “Some people are suspicious that it’s connected to the vaccines, this person included,” he was not referring to himself, he was pointing to a member of the crowd. An earlier version also misattributed a quote. It was Dr. Thomas Frieden, director of the Centers for Disease Control, who said on the ABC News program “This Week” that the science was clear and convincing. “Study after study has shown that there are no negative long-term consequences. And the more kids who are not vaccinated, the more they’re at risk and the more they put their neighbors’ kids at risk as well.” It was not Gov. Scott Walker of Wisconsin, a possible 2016 presidential candidate who also appeared on the show. Also, because of an editing error, a previous version of the article misstated the TV show on which Mr. Obama was appearing when he urged parents to “get your kids vaccinated.” It was the “Today Show,” not “Meet the Press.”

I read the article yesterday, before all the corrections, and I was quite shocked to hear that in 2008 Barack Obama expressed “suspicion” that autism is connected to vaccines, and that Scott Walker (of all people!) gave perhaps the greatest response to a vaccination question ever given by a politician.  Well, it turns out that Obama was referring to an audience member who is “suspicious,” and the quote attributed to Walker actually came from Dr. Thomas Frieden.  Oh well.  Maybe Thomas Frieden should be President of the United States.



WSJ on UNH “Practice-Ready” Program

Earlier this month, the Wall Street Journal‘s Law Blog ran an item on an honors program at the University of New Hampshre Law School.  A study by something called the Institute for the Advancement of the American Legal System showed that students who graduated from UNH’s program outperformed other New Hampshire attorneys on “standardized client-interview assessments.”

Not surprisingly, Elie Mystal of above the law is not impressed.  Mystal’s point basically comes down to “so what?”  These UNH grads might be a little more practice-ready, but that’s not going to help them get good jobs.  The high-paying jobs that enable deeply indebted law school graduates to pay off their loans are still going to go to top graduates from top schools, not people from some honors program at the University of New Hampshire.

I generally agree with Mystal.  However, I don’t think a program like UNH’s is a total waste of time.  Some UNH grads will get jobs practicing law, and they will probably perform better in those jobs if they have some practical training.  You also have to consider the alternative.  In my experience, a lot of law students don’t do much of anything in the second and third years.  Many of them take courses they hear are easy in an effort to increase their GPAs.  I recently met with an upper-level student who told me he chooses his classes based on the day of the week on which they are offered so he only has to commute from Palm Beach County one or two days a week.  A lot of students are just passing time–and two years is a lot of time to pass–until they can get the hell out of here.  If that’s the status quo, then getting some students to participate in a practice-ready program doesn’t seem like such a bad thing.

My other reaction to the WSJ article:  what in the world is a standardized client-interview assessment?  Is this really a thing?  A lawyer interviews a (presumably fake) client and somebody gives that lawyer a score?  And this is supposed to assess how practice-ready the lawyer is?  Good grief.  I think I did one client interview in six years practicing law.  I guess it’s an important skill, but it’s an awfully random one to use to assess someone’s practice-readiness.  I would think you would want to make the attorney write something, or research something, or analyze a legal issue.  I’ve been out of the game for a while, but I’m pretty sure lawyers still do a lot of that stuff.

About that Chemerinsky editorial… [UPDATED]

Erwin Chemerinsky, the Dean of UC-Irvine School of Law, and Carrie Menkel-Meadow, a professor at Irvine and Georgetown, wrote an editorial headlined “Don’t Skimp on Legal Training” in yesterday’s New York Times.  The editorial is so horrible, so misleading, so full of complete bullshit, that it could only have been written by two people who draw their paychecks from American law schools.  It’s hard to know where to start, but let me try to rebut some of their nonsense with actual facts/truth:

1.  C and MM write that 84.7 percent of law school graduates reported being employed in a paid, full-time position nine months after graduation.  Sounds pretty good, right?  Unfortunately, as pointed out time and time again by basically everyone in the world who writes about this stuff, that figure includes anyone who is “employed” doing anything.  Working at Starbucks?  Congrats, you’re one of the lucky 84.7!  A more informative number is the percentage of students employed in positions requiring bar passage, which was 64.4% in 2012.

2.  “The number of graduates who are employed is higher if the measure is over a longer interval than just the nine months after graduation.”  Well, yes, if you ask someone who has been out of law school for ten years if he/she is employed, the answer will most likely be yes.  People need to eat, and so eventually they will find some kind of job, legal or otherwise.  What this most certainly does not mean is that if you’re unemployed nine months after graduation, you just need to wait a few more months/years and that high-paying job you went to law school to get will come your way.

3.  “And with the economy improving and law-school enrollments shrinking, there will be more jobs available for new law graduates.”  I’m going to take a cheap shot here, because I understand what they really mean.  But technically, there will not be more jobs available for new graduates as a result of shrinking law-school enrollments.  There will be the same number of jobs available; there will just be fewer new graduates competing for those jobs.  There may even be fewer jobs available:  a few paragraphs later, C and MM report that “major law firms continue to hire many fewer new graduates than they used to.”

4.  “As with any other field of study, the ability to get a job out of law school obviously depends on where a person went to school and how he or she performed.”  This is not true–or it is at least much less true–of other fields of study.  If you complete medical school, you are extremely likely to find a job as a practicing physician.  That is because there are only around 141 medical schools in the country and, according to my friends who are doctors, there aren’t really any bad ones.  Similarly, my wife is a dietitian.  If you get a master’s in dietetics, you get a job as a dietitian.  There are only about 40 programs in the country for this.  See also (and go into) pharmacy, dentistry, and a bunch of other stuff.

5.  “A recent conversation between the deans of various public policy and international affairs schools in Foreign Policy suggested that law degree graduates were faring much better than both doctoral and master’s students in specialty programs such as international studies.”  NEWSFLASH:  Going to law school is better than getting a master’s in international studies!  I predict that this revelation alone will lead to a 20% spike in law school applications.

6.  “Law schools specifically should do more to provide need-based financial aid to students — rather than what most law schools have been doing in recent years, which is to shift toward financial aid based primarily on merit in order to influence their rankings.”  Great idea!  Perhaps UC-Irvine could set an example by announcing that it will no longer award merit-based financial aid.

7.  “[T]he increased costs can be attributed to a variety of factors: significant decreases in state funding at public law schools, increased faculty salaries, the growth in clinical education that requires smaller classes, and providing more services to students.”  They mention these four factors as if they contribute roughly equally to the increased costs.  I seriously doubt that that is the case.  For one thing, public law schools tend to be a lot cheaper than private ones, so the idea that decreases in state funding at public schools explain the increased costs is crazy.  This is the first time I’ve heard clinics blamed for increased costs; I don’t know what the numbers are, but I doubt that clinics are a significant factor in the increased costs.  As for the last point, law schools probably are providing more services to students than in the past, but I suspect that those services amount to a small fraction of most schools’ budgets.  That leaves “increased faculty salaries.”  (Ding ding ding, we have a winner!)  According to the Sacramento Bee’s State Worker Salary Search website, Erwin Chemerinsky made $361,000 in 2012.  Nowhere in the editorial do Chemerinsky and Menkel-Meadow propose a solution to the increased costs, which even they seem to acknowledge is a problem.  Can you think of one?

UPDATE:  As Mickey Kaus would say, the editorial isn’t as bad as I initially thought.  It’s worse!  Much worse.  The great Paul Campos points out here that the NALP figures cited by C and MM do not say what C and MM say they say because those figures include part-time and unpaid jobs.