California to tighten bar admission rules?

Discussions on the value or merit of unaccredited programs and institutions.

Re: California to tighten bar admission rules?

Postby Roald » Wed Jan 02, 2013 5:19 am

nosborne48 wrote:The analysis of attorney-ness sounds pretty good to me but the conclusion has a hidden flaw...resident, ABA approved schools don't teach this stuff either. The J.D. Isn't like the M.D. In this respect. It lacks more than a token clinical experience, if that.


Although there is a movement towards more practical training in law schools, the typical J.D. curriculum remains almost entirely academic. All law schools offer a few practical skills-oriented courses such as Trial Advocacy, but the average law student might be able to take three or four such courses at most.

My law school required a Lawyering Skills Practicum, Evidence Clinic and Appellate Advocacy, all of which were designed to provide some practical experience. There were additional elective courses focusing on discovery tactics, accounting for lawyers, etc.

Although the courses were good, I still learned more during a year long internship at a very busy civil litigation office than I ever could have in school. I was able to write motions, conduct discovery, and even make appearances. The experience (and connections) were invaluable when it came time to look for a job.

I think both the public and young attorneys would be better served by some kind of mandatory, supervised clinical experience. Whether it's paid work (like the British training contract), or unpaid but intensive internship experience, it would allow law students to see where the rubber hits the road.
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Re: California to tighten bar admission rules?

Postby Rich Douglas » Wed Jan 02, 2013 10:59 am

If the law school experience is primarily-to-almost-exclusively knowledge-based, there's no serious reason (andragogically speaking) for denying the DL process. The cognitive domain is the most straight-forward to deliver and measure. I suspect the resistance comes from things like the perception that DL is less rigorous, faculty who resist it, etc. With law schools under a lot of scrutiny for pumping out graduates who face a horrid job situation, they would be good to consider ways to lower costs. But the dinosaurs die slowly.
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Re: California to tighten bar admission rules?

Postby nosborne48 » Wed Jan 02, 2013 1:55 pm

That's about the size of it. The current model of legal education profits only the schools themselves and the ABA that represents their interests. There's really no good reason to require a law degree at all. England doesn't.
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Re: California to tighten bar admission rules?

Postby Tark » Wed Jan 02, 2013 6:21 pm

There's really no good reason to require a law degree at all. England doesn't.

Several states, including California, don't either. In such states, it is still possible to qualify for the bar exam by working under the supervision of a lawyer or judge -- i.e. apprenticeship -- rather than by going to law school. This approach was common in the 19th and early 20th centuries. However, it is rare today, even in states where it is still legal.
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Re: California to tighten bar admission rules?

Postby Roald » Thu Jan 03, 2013 12:26 am

Tark wrote:
There's really no good reason to require a law degree at all. England doesn't.

Several states, including California, don't either. In such states, it is still possible to qualify for the bar exam by working under the supervision of a lawyer or judge -- i.e. apprenticeship -- rather than by going to law school. This approach was common in the 19th and early 20th centuries. However, it is rare today, even in states where it is still legal.


An LL.B isn't required in the UK?

Rich Douglas wrote:If the law school experience is primarily-to-almost-exclusively knowledge-based, there's no serious reason (andragogically speaking) for denying the DL process. The cognitive domain is the most straight-forward to deliver and measure. I suspect the resistance comes from things like the perception that DL is less rigorous, faculty who resist it, etc. With law schools under a lot of scrutiny for pumping out graduates who face a horrid job situation, they would be good to consider ways to lower costs. But the dinosaurs die slowly.


Yes, the resistance comes (primarily) from the perception that a DL legal education is simply inferior.

However, I don't think snobbiness is the only basis for such bias (although that's certainly a factor). The fact is most DL law schools have a poor track record of both FYLSE and bar pass rates compared to their ABA counterparts. This leads to the conclusion that the education is lacking and the admissions process is too open.

The lowest pass rate for either a provisionally or fully approved ABA school in California last July was 52% (Thomas Jefferson). The highest pass rate for a DL school was a respectable 42% (Taft), with the next highest being only 29%, followed by 24% (and that's after a significant portion have been weeded out by the FYLSE). Others had zero passers.

I tend to think the problem is related to open admissions more than academic rigor, but until the DL schools adopt more selective criteria (requiring a bachelor's degree, requiring the LSAT) I don't think you'll see any move towards accrediting DL law schools.
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Re: California to tighten bar admission rules?

Postby nosborne48 » Thu Jan 03, 2013 2:17 pm

No, an LL.B. is neither required nor, by itself, sufficient to become either a barrister or a solicitor in the U.K. Both the U.K. and Canada require law graduates to enter training contracts and complete post-law school training programs in order to be called to the Bar or licensed to practice. But there are non-University ways to complete the required education in England.
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Re: California to tighten bar admission rules?

Postby cbkent » Thu Jan 03, 2013 2:34 pm

I can only comment on my DL experience at BAU. Synchronous learning was used to a limited degree. We had online chats where the Socratic method was employed. We were encouraged, but not required, to "apprentice" with an attorney or law firm, and attend revision courses at Cambridge.

Lawyers from ABA schools have echoed nosborne's observation that they were not adequately prepared with practical training. As one new admittee lamented, "At least in dental school they teach you how to fill teeth."

Remember the scene from "A Few Good Men" where Tom Cruise remarked, "So this is what the inside of a courtroom looks like."

The UK requires practical training for both soliciters and barristers. See: http://www.legaltutors.com/united_kingdom.htm

A practical training requirement, either as part of the JD or after, could be considered as a requirement for licensure in the US.
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Re: California to tighten bar admission rules?

Postby Tark » Thu Jan 03, 2013 11:32 pm

CalBar-approved schools now must maintain a 40% bar pass rate to stay approved:

Last month, the State Bar’s Committee of Bar Examiners voted to adopt changes to its guidelines for accredited law schools to specify that they must maintain a cumulative bar examination rate of at least 40 percent in order to keep their status. The new guidelines became effective Jan. 1, although law schools won’t have to report whether they meet the requirement until November when annual compliance reports are due. ...

Under the new guidelines, law schools’ bar passage rates will be tabulated yearly as a percentage based on the number of students who have graduated within the past five years and have taken and passed one of 10 administrations of the bar exam. That figure will then be divided by the number of graduates during that five-year period who have taken any of those exams.

Schools that do not meet the requirement when they file their reports later this year will receive a notice of non-compliance. Beginning in 2016, those that fall below the minimum cumulative bar passage rate will be placed on probation and could ultimately lose their accreditation if they don’t comply with the requirements by the end of the following year.
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Re: California to tighten bar admission rules?

Postby nosborne48 » Fri Jan 04, 2013 6:37 pm

Wow...that's going to make things rougher for some of them but I think it's probably a good thing.
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Re: California to tighten bar admission rules?

Postby Roald » Fri Jan 04, 2013 8:02 pm

All but a handful (perhaps four?) of CBE accredited schools should meet the new requirement without a problem. I'd have to disagree with Dean Pulle, 40% over five years is hardly "draconian".
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Re: California to tighten bar admission rules?

Postby Rich Douglas » Wed Jan 16, 2013 4:27 pm

Rich Douglas wrote:Becoming an attorney is a lot more than passing a Bar Exam.

Using Bloom's taxonomy for a moment, we can look at education as advancing humans in three ways:
-- Cognitive. This is the knowledge learned in an educational setting.
-- Psycho-motor. These are the physical skills developed in an educational setting.
-- Effective. And these are the values gained.

A test like the Bar Exam certainly measures knowledge of the law ("cognitive"). It can even test for ethical thinking ("effective"). But it cannot test for all the behaviors ("psycho-motor") it takes to be an effective attorney. It doesn't test whether or not you'll behave ethically, interview a client (or suspect, or stakeholder, or third-party, etc.) effectively. It doesn't test whether or not you can communicate to judges, juries, bosses, clients, etc. And, I'm sure, much more.

But it isn't designed to do that, either. In fact, much of that measurement--explicit or tacit--comes either during or after law school.

Let's say there are psycho-motor skills to be learned before one becomes an attorney. Those behaviors have to be learned in school and, hopefully, measured somehow. (Let me pause here and say I've never attended law school, so I'll leave it to others to comment on this.)

If this is true, how would DL law schools do this? Well, if they use live, synchronous methods, they might. But they tend not to. Studying the law by DL is largely the correspondence school process, updated with newer and better technology. It's you against the body of knowledge. Pass through the program and then take on the Bar (and the Baby Bar before it). But is the product comparable?

Is someone who graduates from a DL law school and passes the bar comparably prepared compared to an ABA (or CBE)-accredited law school graduate who passes the Bar? I wonder.

In short, if there's more to becoming an attorney than studying the law and passing the Bar, then DL law schools can't deliver because of the limitations of the learning medium. (This is also true of DL in just about any non-scholarly subject.) If not, the argument is moot.

Maybe the late David Noble was on to something?


Sorry to quote my own stuff, but I'm not alone in the thinking that online education can be incomplete. From the article linked below: "Education is about more than acquiring skills." Right. But the Bar Exam requirement reduces it even further, down to just knowledge. Skills and values aren't addressed. This is largely true in DL, too.

http://www.cnn.com/2013/01/15/opinion/rushkoff-moocs/index.html?eref=igoogledmn_topstories
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Re: California to tighten bar admission rules?

Postby cbkent » Thu Jan 17, 2013 10:50 pm

Many states have added "performance tests" to the bar exam. California administers two of them.

The National Conference of Bar Examiners describes the goal of the Multistate Performance Test:

"The MPT is designed to test an examinee’s ability to use fundamental lawyering skills in a realistic situation. Each test evaluates an examinee’s ability to complete a task that a beginning lawyer should be able to accomplish. The materials for each MPT include a File and a Library...The MPT requires examinees to (1) sort detailed factual materials and separate relevant from irrelevant facts; (2) analyze statutory, case, and administrative materials for applicable principles of law; (3) apply the relevant law to the relevant facts in a manner likely to resolve a client’s problem; (4) identify and resolve ethical dilemmas, when present; (5) communicate effectively in writing; and (6) complete a lawyering task within time constraints.

These skills are tested by requiring examinees to perform one or more of a variety of lawyering tasks. For example, examinees might be instructed to complete any of the following: a memorandum to a supervising attorney, a letter to a client, a persuasive memorandum or brief, a statement of facts, a contract provision, a will, a counseling plan, a proposal for settlement or agreement, a discovery plan, a witness examination plan, or a closing argument."

See: http://www.ncbex.org/multistate-tests/mpt/

As for psychomotor skills, it is true that we were not required to demonstrate the ability to jump from a seated to standing position and emphatically asserting, "I object!" :D
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Re: California to tighten bar admission rules?

Postby Rich Douglas » Thu Jan 17, 2013 11:15 pm

cbkent wrote:Many states have added "performance tests" to the bar exam. California administers two of them.

The National Conference of Bar Examiners describes the goal of the Multistate Performance Test:

"The MPT is designed to test an examinee’s ability to use fundamental lawyering skills in a realistic situation. Each test evaluates an examinee’s ability to complete a task that a beginning lawyer should be able to accomplish. The materials for each MPT include a File and a Library...The MPT requires examinees to (1) sort detailed factual materials and separate relevant from irrelevant facts; (2) analyze statutory, case, and administrative materials for applicable principles of law; (3) apply the relevant law to the relevant facts in a manner likely to resolve a client’s problem; (4) identify and resolve ethical dilemmas, when present; (5) communicate effectively in writing; and (6) complete a lawyering task within time constraints.

These skills are tested by requiring examinees to perform one or more of a variety of lawyering tasks. For example, examinees might be instructed to complete any of the following: a memorandum to a supervising attorney, a letter to a client, a persuasive memorandum or brief, a statement of facts, a contract provision, a will, a counseling plan, a proposal for settlement or agreement, a discovery plan, a witness examination plan, or a closing argument."

See: http://www.ncbex.org/multistate-tests/mpt/

As for psychomotor skills, it is true that we were not required to demonstrate the ability to jump from a seated to standing position and emphatically asserting, "I object!" :D


Funny, but what about skills like interviewing? Or other congnative skills like writing?

The Bar exams serve only two functions. First, they measure some basic level of knowledge regarding the law. Second--and waaaaaaaaaaaaayyyyyyyyyyyy more significant--they restrict the number of lawyers entering the field and, thus, reducing competition. The "Haves" use it to keep out the "Not Yet Haves."
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Re: California to tighten bar admission rules?

Postby cbkent » Sat Jan 19, 2013 9:06 pm

I agree that the bar exam is overrated. IMO, law students should hone their skills in interviewing, conducting depositions, and attending trials under the watchful eye of an experienced attorney, rather than by trial and error after admission.

However, the bar exam tests writing skills. In California, more weight is given to the written portions of the exam, the essay and performance tests, than the MBE. The MBE is the multiple choice portion of the exam, which tests general legal knowledge.

At BAU, our grades were based primarily on essay and performance type tests. We were also required to draft real world documents such as a complex will and trust, application and supporting documentation for a zoning variance, contracts, etc. IMO, legal writing can be taught effectivle by DL.

We did not receive any training in interviewing. I do not know if ABA schools provide such training. Of course, such skills could be developed in a legal clinic setting.
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