BTHE ar Examiner - NCBE
Transcript of BTHE ar Examiner - NCBE
Articles
6 Recent tRends in Law schooL cuRRicuLa: Findings FRom the 2010 aBa cuRRicuLum suRvey by Catherine L. Carpenter
14 the Law schooL suRvey oF student engagement: heLping Law schooLs undeRstand what’s woRking (and what’s not) by Carole Silver and Lindsay Watkins
23the gLoBaLization oF LegaL education: impLications FoR BaR admissions by James P. White
Departments
2 LetteR FRom the chaiR
by Rebecca S. Thiem
4 pResident’s page
by Erica Moeser
29 the testing coLumn what eveRyone needs to know aBout testing, whetheR they Like it oR not
by Susan M. Case, Ph.D.
32 news and events
38 Litigation update
by Fred P. Parker III and Brad Gilbert
Bar ExaminerTHE
Volume 81 | Number 2 | June 2012
A publication of the National Conference of Bar Examiners
Letter from the Chair
2 The Bar Examiner, June 2012
Bar ExaminerEditor
Claire Huismann
Editorial Advisory CommitteeBeverly Tarpley, ChairBedford T. Bentley, Jr.Gordon J. MacDonald
Terry L. MannMarygold Shire Melli
Paul H. MillsFred P. Parker III
Hon. Phyllis D. Thompson
Publication Production and Design
Melanie Hoffman
Editorial Assistant
Lisa Palzkill
Publisher
National Conference of Bar Examiners
NCBE Officers
ChairRebecca S. Thiem
PresidentErica Moeser
Immediate Past ChairPhilip M. Madden
Chair-ElectFranklin R. Harrison
SecretaryMargaret Fuller Corneille
NCBE Board of TrusteesHon. Rebecca White Berch
Hon. Thomas J. BiceMark S. Carlin
Robert A. ChongMichele A. Gavagni
Hon. Cynthia L. MartinDarryl W. Simpkins
Bryan R. Williams
THE
Martin Luther King Jr. said: “Our lives begin to end the day we
become silent about things that matter.” What I have learned
during my eight years of serving on the NCBE Board of
Trustees, and since last August as its Chair, is that the profes-
sional work of the bar admissions community “matters,” particularly in this
time of uncertainty and change in the legal profession. I am proud to be associ-
ated with colleagues who speak up about these important issues and dedicate
themselves to solving the problems and challenges we face.
Our friend and colleague John W. Reed noted in his March 2008 address
to the Annual Convention of the International Society of Barristers, “Most
problems are solved, most barriers are surmounted, most opportunities are
realized not by monumental acts of flashing insight and daring, but by an
accumulation of little acts. We achieve our greatest purposes by attending
faithfully to the smallest things.”
NCBE is fortunate indeed to be led by President Erica Moeser and
her classy and capable staff, who attend faithfully to both the largest and
the “smallest things.” Those of you who attended the NCBE Annual Bar
Admissions Conference in Savannah in April were fortunate to witness first-
hand this attention to detail, for which staff members Deb Martin and Laurie
Lutz deserve much of the credit. One of the primary purposes of the annual
conference is to highlight the issues and challenges facing the bar admissions
community. The conference this year covered a wide range of topics and was
well received by those in attendance.
I am proud that during my year as Chair we have made significant head-
way on the following important initiatives, which fortunately are more in the
nature of opportunities than problems: the Content Validity Study, the addi-
tion of Federal Civil Procedure as a content area to the MBE, and the Uniform
Bar Examination (UBE).
The core of a bar examiner’s mission is to test the knowledge and skills
that a newly licensed lawyer should have in order to practice law without
endangering the public. In my 30-plus years as a general practitioner, I
have learned that practicing law, even at an entry level, requires a breadth
job prospects. Having a score that is
portable and transferable to several
jurisdictions enhances job prospects
and provides flexibility for the employ-
ing law firm and its clients as well
as for the individual lawyer. For
these reasons, eight jurisdictions have
adopted (and one jurisdiction has con-
ditionally approved) the UBE, and
interest continues to grow.
The Content Validity Study, the
addition of Federal Civil Procedure to
the MBE, and the UBE are only a few of the areas
in which progress has been made by NCBE com-
mittees this last year. I wish to thank all committee
chairs and committee members who affirmatively
answered my call to volunteer. At every committee
meeting I attended, I was impressed with the sin-
cerity and seriousness expressed by the committee
members. Hopefully, no one felt his or her time was
wasted in providing these very valuable services to
the NCBE Board of Trustees.
In closing, I wish to thank the Board of Trustees,
including President Erica Moeser, the Executive
Committee, and the committee chairs, who have pro-
vided me with their support, encouragement, and
dedication this past year. We all join in wishing our
best to Phil Madden, who will be leaving the Board
after the August Annual Meeting in Burlington,
Vermont. I very much look forward to serving with
incoming Chair Franklin Harrison, who will exuber-
antly lead us with his special brand of common sense
and humor.
Best regards to all.
Sincerely,
Rebecca S. Thiem
of knowledge and a skill set of such
complexity that makes evaluation of
minimum competency a challenging
process. The purpose of the Content
Validity Study is to develop a more
comprehensive and valid set of data
from which we can evaluate what a
new lawyer really needs to know. The
results of the Content Validity Study
will be presented in June 2012 to the
Long Range Planning Committee, so
ably chaired by Diane Bosse and David
Boyd. It is expected that incoming NCBE Chair
Franklin Harrison will focus his year on evaluating
the survey results in order to implement the changes
deemed necessary and appropriate.
In developing the Content Validity Study survey
instrument based on the job analysis process—which
included phone interviews with newly licensed
and experienced lawyers and a review of job logs
completed by lawyers—it became apparent that
both legal research and civil procedure were impor-
tant knowledge and skill components for a newly
licensed lawyer. The Board of Trustees recently
made a decision to add the topic of Federal Civil
Procedure to the MBE. I am pleased to report that
a group of item writers led by Mary Kay Kane, the
longtime dean at Hastings College of the Law, has
met and has successfully drafted potential questions.
It is anticipated that Federal Civil Procedure ques-
tions will be included on the MBE by no later than
2016. The inclusion of legal research in the test speci-
fications was previously studied; I fully expect that
it will continue to be seriously considered as a result
of the Content Validity Study.
The UBE is an issue particularly near and dear
to my heart. I believe it is a change that is sorely
needed to assist graduates who often come out of
law school weighted down with debt and uncertain
Letter from the Chair 3
4 The Bar Examiner, June 2012
pResident’s pageby Erica Moeser
No matter how long I
work in the field of bar
admissions, I continue to
learn new things. Often
the learning occurs at NCBE programs.
My experience at our Annual Bar Ad-
missions Conference held in Savannah
in late April proved to be no exception.
Evidently our attendees—number-
ing over 300 strong from over 50 juris-
dictions—felt the same way. In review-
ing the evaluation forms that were
submitted on-site, I see that the average ratings for
the sessions, based on selection of the categories of
“very satisfied” or “satisfied,” yielded the following
figures: 94% of responders were happy with the pro-
gram content; 93% of responders were happy with
the quality of the presentations; and 98% of respond-
ers were happy with the knowledge of the speakers.
I would also be willing to bet that just about 100% of
our group was happy with the choice of Savannah,
a lovely and interesting venue for any conference.
If anything about the Savannah program sur-
prised me, it was the intensity of interest in character
and fitness issues. The enrollments in the breakout
sessions that treated subjects relevant to evaluating
this aspect of bar applications were over the top. In
short, our audience was ravenous for the topic, and
the speakers who contributed to this and other por-
tions of the program were first-rate.
There was also considerable interest in the
Americans with Disabilities Act (ADA), in the
issues that are influencing law school
admission, and in the impact of global
initiatives that are touching many licens-
ing boards and affecting the profes-
sion. Combined, these are forces for
change that are, inevitably, reaching
bar admissions. Of course, because test-
ing is a critical element in licensing,
and the need to educate lawyers to
be the best bar examiners they can
be never goes away, sessions about
measurement and testing techniques
drew strong numbers, too.
As the ink dries on each year’s evaluations, we
are already at work constructing the next year’s
program. We use the information we glean from
our attendees to formulate the schedule, and we
rely on the comments to guide the direction of the
programming.
Of course, credit for the success of the Savannah
program belongs to NCBE’s Education Committee,
chaired by Missy Gavagni of Florida, and supported
so splendidly by Deb Martin and Laurie Lutz of
the NCBE staff. These remarkable people have my
thanks for making the difficult look easy. As any
of you who have herded cats can attest, it is a chal-
lenge. I think the numbers above show that there
were a lot of happy cats in Georgia this April.
Our next invitational Annual Bar Admissions
Conference will be held in Boston on April 18–20,
2013. And Laurie and Deb are already at work on the
planning for the 2014 event in . . . to be announced!
President’s Page 5
Here at the NCBE office, we have a number of
irons in the fire. As many readers know, we have
taken all aspects of the MBE, MEE, and MPT in-
house. The MBE was the last to arrive, with its first
“solo flight” in February 2011. In this, the second
year of handling all aspects of MBE administration,
I can declare the move to be a complete success. The
feedback we have received from our user jurisdic-
tions has been uniformly positive. Forms, manuals,
and procedures have all been improved and stream-
lined. Our staff has been responsive and capable.
Of course, other initiatives lie ahead. The launch
of the NCBE Number is rolling out nicely. A grow-
ing number of jurisdictions are implementing the use
of this identifier on applications and answer sheets.
This number will contribute to achieving greater cer-
tainty in identifying applicants (a problem for those
few jurisdictions that have been unwilling to require
names and/or Social Security numbers on their MBE
answer sheets) and will permit the tracking of appli-
cants across tests and across jurisdictions.
Of even greater importance is the potential for
the NCBE Number to become the portal through
which applicants will be able to access their MPRE
scores, seek MBE transfers (where permitted), and
order UBE transcripts, among other things.
We are also looking ahead to what the still-to-be-
unveiled results of our Content Validity Study may
reveal. The study, which I have described in earlier
columns, is not expected to shake up bar admissions
as one would a snow globe, but it should direct
us to prudent and gradual adjustments of our test
instruments, and perhaps to the development of new
instruments to test other knowledge or skills brought
to light by the study and found to be feasible to
measure effectively and efficiently. We have already
started developing multiple-choice questions on the
topic of Federal Civil Procedure, and the process
of adding that content area to the MBE is well
under way.
Interest in the Uniform Bar Examination con-
tinues to bubble. I commend the jurisdictions that
have been willing to explore what adoption of
the UBE might mean to them. Several of us have
become “road warriors,” visiting jurisdictions that
have assembled key players from bench, board, bar,
and law schools. It has been rewarding to conduct
candid conversations with all interested constituen-
cies represented in the room. My track shoes are not
quite worn through yet, and I am ready to lace them
on if other jurisdictions are ready to undertake their
own investigations of what is meant by the UBE and
what the UBE portends for them.
This summer the Annual Meeting for both NCBE
and the Council of Bar Admission Administrators
(CBAA) will be held in Burlington, Vermont, in mid-
August. At that time we will thank Rebecca Thiem of
North Dakota for a productive year as NCBE Chair.
If in the past anyone ever expressed to her the wish
“may you live in interesting times,” this was the year
that wish came true! She has handled a myriad of
matters ably. Franklin Harrison of Florida will chair
NCBE next year, and I look forward to working with
him—and perhaps to less interesting times!
John McAlary, who has chaired the CBAA this
year, has been a wonderful leader of that group—
capable, congenial, and well informed. He will yield
the gavel to Lee Ann Ward of Ohio in August.
I look forward to working with her throughout
next year.
6 The Bar Examiner, June 2012
Lately, legal education has been on every-
one’s mind. Interest was fueled in 2007 by
the publication of Educating Lawyers: Prep-
aration for the Profession of Law1 and Best
Practices for Legal Education: A Vision and a Road Map,2
two influential reports that challenged law schools
to create a curriculum that better prepares students
to become competent professionals.3 When these re-
ports are considered with a changing legal market
amid an uncertain economy4—and with media re-
ports that have highlighted perceived deficiencies in
law school curricula5—it is not surprising that legal
education has become the subject of intense discus-
sion for the academy, bench, and bar.
Given the current scrutiny, it is particularly
useful to consider A Survey of Law School Curricula:
2002–2010, which offers comprehensive statisti-
cal information on significant aspects of current
law school curricula as well as comparative cur-
ricular information from that time period.6 The 2010
Survey is the result of a two-year project conducted
by the Curriculum Committee of the American
Bar Association Section of Legal Education and
Admissions to the Bar at the request of Hulett (Bucky)
Askew, ABA Consultant on Legal Education. The
Survey also serves as a follow-up to its predecessor
published in 2004, A Survey of Law School Curricula:
1992–2002, which offered comparative curricular
information from that decade.7
goaLs oF the 2010 suRvey
Several goals shaped the 2010 Survey. First, the
Curriculum Committee wanted to update com-
parative data on curricular trends and changes
first reported in the 2002 Survey. Where possible,
the 2010 Survey was also designed to offer more
detailed information on items of interest from the
prior Survey. Finally, the committee’s aim was to
broaden the 2002 review to capture changes made
in response to the critiques from Educating Lawyers
and Best Practices, as well as to identify changes dic-
tated by new and amended standards from the ABA
Standards and Rules of Procedure for Approval of
Law Schools.
The 2010 Survey is organized into seven sections:
Section One: Requirements for graduation
Includes credits required, upper-division course
requirements, and joint degrees offered by insti-
tutions. Newly added to this section are ques-
tions about minutes required for graduation
and instruction blocks of time that law schools
employed.
Section Two: First-year course requirements
Includes course and credit hours and spe-
cific questions on first-year Legal Research and
Writing. New questions seek more detailed
information on first-year elective opportunities
and first-year Legal Research and Writing.
Section Three: Upper-division curriculum
Includes core and elective curriculum, skills
and clinical offerings, and noted increases and
decreases in particular areas of law. New to this
section are more detailed questions on clinical
offerings.
Recent tRends in Law schooL cuRRicuLa: Findings FRom the 2010
aBa cuRRicuLum suRveyby Catherine L. Carpenter
Recent Trends in Law School Curricula 7
Section Four: Academic support and bar
readiness
New to the 2010 Survey. Includes voluntary
and mandatory academic support programs
and courses for first-year and upper-division
students. Also included are questions regarding
bar preparation courses for credit, subject matter
selection, and use of faculty resources.
Section Five: Post-J.D. and non-J.D. degree
programs
Includes subject matter, degrees awarded, and
credit allocation.
Section Six: Distance education instruction
Includes policies permitting distance education
instruction, synchronous and asynchronous
offerings, and online degrees and programs.
Section Seven: Narratives on curricular change
Includes reports by law schools on major cur-
ricular innovations and changes that have been
implemented since 2002 and the influences that
inspired these changes.
the data we used FoR the 2010 suRvey
The data that provided the basis of the 2010 Survey
came primarily from two sources: law school
responses to the ABA Annual Questionnaire8 for
2010–2011 and the results from an electronic survey
distributed to all law schools in October 2010. The
2010 survey instrument, which contained more than
80 questions, was designed by the ABA Section’s
Curriculum Committee in collaboration with the
Section’s Office of the Consultant.
Results from responses to the Annual
Questionnaire reflect the input of all 200 ABA-
approved law schools in 2010.9 Results from the 2010
Survey include responses from 167 ABA-approved
law schools, which represented 84% of the ABA-
approved law schools in 2010. A review of their
demographics shows that respondents came from
all parts of the country, represented the well estab-
lished and provisionally approved alike, and had
varied enrollment sizes, institutional makeups, and
affiliations.
2010 suRvey highLights oF inteRest to the Bench and BaR
Anecdotal information is always interesting, but
objective data can be instructive. The Survey’s col-
lection of detailed statistics on a broad range of
topics helps inform the general legal community
about current curricular practices and trends in
legal education. And for the bench and bar, the 2010
Survey provides empirical data on questions that
affect the profession: whether law schools are meet-
ing the challenge to produce practice-ready profes-
sionals, whether they are supporting their students
through academic support and bar prep resources,
and whether they are offering the type of curriculum
that fosters strong professional skills and profes-
sional identity.
Results of the 2010 Survey—the objective data
combined with the narrative responses—reveal that
law school faculties were involved in efforts to
review and revise their curricula to produce practice-
ready professionals. Survey respondents frequently
cited Educating Lawyers and Best Practices as influ-
ential in their decision-making processes. A com-
parison of data from 2002 and 2010 reflects that by
2010, law schools were engaged in experimentation
and change at all levels of the curriculum. Results
include new programs in professional development,
academic support, and bar readiness; increased
8 The Bar Examiner, June 2012
doctrinal specializations, including in international
law and intellectual property; enhanced experiential
learning with a measurable increase in professional
skills offerings; and greater emphasis on various
kinds of writing across the curriculum.
In addition to creating new programs and
courses, law schools have experimented with acceler-
ated programs for graduation following the change
in ABA Standards in 2004, which allowed law stu-
dents to graduate within 24 months.10
Producing Practice-Ready Professionals
In growing numbers, law schools reported that
curricular changes were impelled by the desire to
produce practice-ready professionals. This commit-
ment has taken many forms, including redesigned
courses that emphasize legal writing, an increase in
professional skills offerings, and retooled courses
that boast integrated doctrine and skills. Included
within this overarching commitment are two the-
matic components.
Rise in Prominence of Legal Research and Writing
One emerging story from the 2010 Survey is the
continued rise in prominence of Legal Research and
Writing. Under the traditional model described by
Donald Jackson and E. Gordon Gee in their 1975 pio-
neering study on law school curricula, Legal Research
and Writing was a first-year course designed with a
narrow curricular view and afforded an average of
two units.11 The 2002 Survey observed changes to
that model, with law schools affording on average
three or four units and broadening the course’s scope
to include persuasive writing.
By 2010, law schools had reported even greater
change. Many law schools were now providing
first-year Legal Research and Writing five or six
units and had expanded the subject matter of the
course to include lawyering skills beyond traditional
advocacy. Additionally, in response to the criti-
cism that the upper-division curriculum was filled
with knowledge-based courses to the exclusion of
professional skills offerings, respondents reported
adding upper-division Legal Research and Writing
courses to augment lawyering skills taught in the
curriculum.
43% of law schools offered five or six units of first-year Legal Research
and Writing.
Commitment to Professional Skills Education and
Professionalism
Law schools reported an abiding commitment to
professional skills education, and that commitment
can be seen in recently retooled and redesigned
professional skills training with increased live-client
clinical opportunities and externship placements,
the introduction of professional skills into exist-
ing doctrinal courses, and the addition of separate
labor-intensive professional skills offerings. Survey
respondents reported offering a variety of profes-
sional skills courses, and half noted offering 10 or
more courses in 2010.
While certain courses such as Trial Advocacy
and Alternative Dispute Resolution were widely
offered in both 2002 and 2010, other courses grew
in popularity. Between 2002 and 2010, Appellate
Advocacy grew from 77% in 2002 to 89% in 2010;
Arbitration from 50% in 2002 to 60% in 2010; and
Interviewing and Counseling from 59% in 2002 to
73% in 2010.
50% of law schools offered 10 or more professional skills courses.
And in concert is the increased emphasis on pro-
fessionalism and professional identity. Respondents
noted new courses or components to existing courses
Recent Trends in Law School Curricula 9
on professionalism that were offered not only in the
upper division but also in the first year, in an effort
to expose students earlier to the various roles and
obligations of attorneys. Additionally, by 2010, sev-
eral law schools had created professional develop-
ment centers and institutes to address the roles and
obligations of the legal profession.
85% of law schools offered in-house live-client clinical opportunities,
with an average of three clinics per law school.
Academic Support and Bar Readiness
Many law schools reported that, since 2002, they had
instituted new academic support or bar preparation
courses and programs. Aware of the external pres-
sures associated with the cost of legal education and
the changing job market, respondents wrote that
they had designed and developed bar preparation
courses and enhanced academic support offerings
to increase their students’ chances of success in law
school and on the bar examination.
As of 2010, nearly all respondents provided
academic support, in the form of either a program, a
course, or both, and nearly three-fourths of respon-
dents offered academic support services to both first-
year and upper-division students. If the program
was offered to one group only, that one group was
overwhelmingly likely to be first-year students.
97% of law schools offered academic support programs to their students.
In addition to academic support offerings, nearly
half the respondents indicated that by 2010, they
offered a bar preparation course for credit. This num-
ber of bar preparation courses for credit may be tied
quite directly to the repeal in 2008 of ABA Standard
302, Interpretation 302-7, which severely restricted
the use of bar preparation courses for credit.12
49% of law schools offered bar prepa-ration courses for credit.
The range of topics in bar preparation courses
included multistate essay, multistate multiple-choice,
multistate practice/performance, multistate profes-
sional responsibility, and state essay—with the most
popular topics being multistate multiple-choice and
state essay (see Figure 1). For most law schools, the
course was voluntary. As illustrated in Figure 2, in
two-thirds of the bar preparation courses, full-time
faculty resources were used to teach the courses—
either alone or in combination with adjunct faculty
resources.
Figure 1: Range of bar preparation course topics among law schools
Percentage of Law Schools
Bar
Pre
par
atio
n C
ours
e T
opic
s
10 The Bar Examiner, June 2012
The Required Curriculum
Fewer Required Courses
A comparison of law school curricula across the
decades reflects less reliance on a required core
curriculum in the past two decades than was true
prior to the 1990s. In both 2002 and 2010, nearly 25%
of law schools reported that they did not require
for graduation upper-division courses beyond
those mandated by ABA Standard 302 (profes-
sional responsibility, upper-division writing, and
“other professional skills generally regarded as
necessary”).13
Commensurate with the
move from a highly prescrip-
tive curriculum is the reported
increase in upper-division elec-
tive opportunities. Specifically,
within the 2010 Survey time
frame, upper-division course
titles increased from 91 titles in
2002 to 132 titles in 2010, repre-
senting a 45% increase in upper-
division course offerings. Law
schools reported significant
increases in International Law,
Alternative Dispute Resolution,
Intellectual Property, Business Law, and Trans-
actional Drafting.
Most Commonly Required Upper-Division Courses
As was true in 2002, only Constitutional Law and
Evidence showed significant support as required
doctrinal courses beyond the first year that are
not mandated under ABA Standard 302. Each
course attracted 50% of respondents (just over 80
schools each). No other doctrinal course, includ-
ing Business Associations and Criminal Pro-
cedure, attracted more than 25% of respondents
(fewer than 50 schools for each course, with Clinical
Experience being the least-required class, at just over
10 schools). (See Figure 3.)
The “Bar Factor”: The Correlation between Bar
Exam Subject Matter and Courses Required for
Graduation
Interestingly, the tested subject matter on bar exami-
nations did not appear to play a prominent role in
a law school’s determination of which courses to
require for graduation. As was true in the 2002 find-
Figure 2: Assigned teaching responsibilities for bar preparation courses
0
10
20
30
40
50
60
70
80
90
Constitu
tional
Law
Eviden
ce
Advance
d Leg
al W
ritin
g
Busines
s Ass
ociatio
ns
Crimin
al Pro
cedure
Trial P
racti
ce
Clinica
l Exp
erien
ce
Figure 3: Most commonly required upper-division courses
Nu
mb
er o
f S
choo
ls
Recent Trends in Law School Curricula 11
ings, there is no statistical evidence to suggest that
the “bar factor” drove law school curricular decision
making on which upper-division courses to require
for graduation. The fact that a particular subject
was tested on the state bar examination may have
served as the impetus for an individual law school
to require the course, but on the whole, it did not
appear to be the primary motivation to require the
course for graduation.
The 2010 Survey provides a detailed expla-
nation of the independent research conducted to
arrive at this conclusion. In summary, we selected
subjects that were regularly tested on bar examina-
tions across the country but that were not tested
on the Multistate Bar Examination.14 The subjects
chosen were Business Associations, Tax, Trusts and
Estates (Wills), Remedies, and Family Law. First, we
matched each subject to those law school respon-
dents that required the course, identifying whether
that subject matter was required in the respondent’s
state bar examination. We then determined the extent
to which that course was also required by other law
schools in the same state. And then we conducted
the research in reverse. We surveyed all state bar
examinations to determine which state bar examina-
tions tested these subjects, and then we examined
the curriculum of each law school in each state that
tested the subjects to determine the number of law
schools that required the courses for graduation.
Subjects such as Business Associations and
Trusts and Estates offer the best illustrations of our
findings. Although they were tested on the vast
majority of state bar examinations, less than half the
law schools required these courses for graduation.
And even where a subject such as Tax was tested
in a particular jurisdiction, there was no consensus
among law schools in that state about whether to
require the course. Similar results were found for all
subjects we tested.
This principle held true for law schools whether
they had national or regional reputations, were
public or private institutions, or were single- or
dual-division law schools. Only in the case of newly
ABA-accredited law schools—those schools accred-
ited after 2002—did one see a correlation between
a school’s required curriculum and state bar exam
subject matter coverage. In the case of newly accred-
ited law schools, it is likely that a prescriptive
curriculum composed of bar-tested subjects was
designed to ensure bar passage sufficient to comply
with ABA Standards for full approval.15 For all other
law schools, factors such as faculty resources, peda-
gogical beliefs, specializations, or faculty politics
might have equally influenced the decision on which
courses to require.16
Although the 2010 Survey concluded that bar
examination subject matter did not control the deci-
sion on which courses to require for graduation, the
2010 Survey did not examine enrollment patterns for
these courses. Called the “informal bar curriculum,”
nonrequired bar subjects may nonetheless experi-
ence high demand and enrollment despite not being
required.17
Pro Bono Requirements
One interesting development in the required cur-
riculum is the incremental rise in pro bono service
requirements, with 18% of law school respondents
in 2010 requiring an average of 35 hours of pro bono
service to graduate, which is nearly 10 more hours of
service than reported in 2002. Although there were a
variety of ways to meet the service obligation, for the
majority of respondents, the only way was to volun-
teer in law-related services.
12 The Bar Examiner, June 2012
concLuding thoughts
Results of the 2010 Survey, both objective data and
narrative responses, reveal that law school faculties
are engaged in efforts to review and revise their cur-
ricula to produce practice-ready professionals. And
with wholesale curricular review has come experi-
mentation and change at all levels of the curricu-
lum, including enhanced experiential learning and
greater emphasis on various kinds of writing across
the curriculum.
Yes, lately legal education has been on every-
one’s mind as debate intensifies on whether law
school curricula in today’s changing market are pre-
paring students for the practice of law. A Survey of
Law School Curricula: 2002–2010 offers valuable
empirical data on how and whether law schools are
meeting the needs of law students today.
notes
1. wiLLiam m. suLLivan, anne coLBy, Judith weLch wegneR, LLoyd Bond & Lee s. shuLman, educating LawyeRs: pRepaRation FoR the pRoFession oF Law, The Carnegie Foundation for the Advancement of Teaching, Preparation for the Professions (Jossey-Bass 2007) [hereinafter “Educating Lawyers”] (criticizing the traditional doctrinal model used to prepare law students for the practice of law).
2. Roy stuckey and otheRs, Best pRactices FoR LegaL education: a vision and a Road map (Clinical Legal Education Association, 2007) [hereinafter “Best Practices”] (offering “a vision of what legal education might become” by articulating seven sets of best practices, from setting goals to assessing both learning and institutional effectiveness), at 1.
3. See id. at 19 (encouraging law schools to “expand their edu-cational objectives to more competently serve the needs of their students”); suLLivan et aL., supra note 1, at 91 (arguing for changes in the academic setting to integrate “the appren-ticeship of practice”). See also Lauren Carasik, Renaissance or Retrenchment: Legal Education at a Crossroads, 44 ind. L. Rev. 735, 743–744 (2011) (relying, in part, on the criticisms from Educating Lawyers and Best Practices to argue for a compre-hensive approach to reform).
4. See, e.g., Richard A. Matasar, The Viability of the Law Degree: Cost, Value, and Intrinsic Worth, 96 iowa L. Rev. 1578 (2011) (analyzing the impact of external factors on the value of a law degree); Daniel Thies, Rethinking Legal Education in Hard Times: The Recession, Practical Legal Education, and the New Job Market, 59 J. LegaL educ. 598 (2010) (tracing the effects of the economic recession on legal education).
5. See, e.g., Ashby Jones, The Boldest Move (To Date) in Legal Curricular Reform?, Wall Street Journal Law Blog (Sept. 9, 2009, 10:52 a.m.), http://blogs.wsj.com/law/2009/09/09/the-boldest-move-to-date-in-legal-curriculum-reform (decrying the “redundant” third year of law school classes and suggesting replacing such classes with simulation of real-world experience); David Segal, So You Want to Learn to Practice Law? Wait Until After You Finish School, int’L heRaLd tRiBune, Nov. 22, 2011, at 18 (criticizing the lack of practical, real-world training for law students).
6. a suRvey oF Law schooL cuRRicuLa: 2002–2010 [herein-after “the 2010 Survey”], to be published in July 2012, will be available on the ABA Section of Legal Education and Admissions to the Bar’s website at http://www.americanbar .org/groups/legal_education.
7. a suRvey oF Law schooL cuRRicuLa: 1992–2002 [hereinafter “the 2002 Survey”] was prompted by the 10-year anniver-sary of the ABA Section of Legal Education and Admissions to the Bar’s report LegaL education and pRoFessionaL deveLopment: an educationaL continuum, RepoRt oF the task FoRce on Law schooLs and the pRoFession: naRRowing the gap (known as the “MacCrate Report” in recognition of the ABA task force chair, Robert MacCrate) and its articula-tion of the 10 fundamental lawyering skills that law schools should address.
a suRvey oF Law schooL cuRRicuLa: 1992–2002 is avail-able at http://www.americanbar.org/content/dam/aba/migrated/2011_build/legal_education/curriculum_survey .authcheckdam.pdf. For an article by Professor Carpenter on the 2002 Survey findings, see Catherine L. Carpenter, Recent Developments in Law School Curricula: What Bar Examiners May Want to Know, BaR examineR, Nov. 2005, at 39.
8. The ABA Annual Questionnaire is distributed by the ABA Section of Legal Education and Admissions to the Bar to all law schools fully or conditionally approved by the ABA, as well as those seeking approval. It is designed to collect infor-mation on graduation requirements, bar passage and place-ment, admissions, library facilities, scholarships, administra-tor and faculty profiles, fiscal data, information technology facilities, and study-abroad programs.
9. In 2010, Annual Questionnaire data for the 200 ABA-approved law schools did not include University of California at Irvine School of Law, which received its provisional approval in 2011.
10. ABA Standard 304(c) enables “the course of study for the J.D. degree [to] be completed no earlier than 24 months . . . after a student has commenced law study….” (emphasis added)
11. See donaLd Jackson & e. goRdon gee, FoLLowing the LeadeR? the unexamined consensus in Law schooL cuRRicuLa, 15 (Council on Legal Education for Professional Responsibility, 1975) (hypothesizing the average first-year curriculum by taking the average required units in the first year and the corresponding frequency of required subjects among the 127 ABA-approved law schools).
12. A review of the history of bar examination courses for credit under the ABA Standards reveals that these courses have been the subject of changing intentions. Initially, bar examination courses for credit were expressly prohibited under former ABA Standard 302(f), which stated, “A law school may offer a bar examination preparation course, but may not grant credit for the course or require it as a condi-tion for graduation.” In 2004, that Standard was repealed and Standard 302, Interpretation 302-7 was added, which
Recent Trends in Law School Curricula 13
allowed for bar examination courses for credit but restricted the use of the credit: “If a law school grants academic credit for a bar examination preparation course, such credit may not be counted toward the minimum requirements for grad-uation established in Standard 304. A law school may not require successful completion of a bar examination prepara-tion course as a condition of graduation.” That Interpretation was repealed in 2008, affording law schools the ability to offer bar preparation courses for credit without any restric-tions on the use of the credit earned.
13. ABA Standard 302(a) states
A law school shall require that each student receive substantial instruction in: (1) the substantive law gener-ally regarded as necessary to effective and responsible participation in the legal profession; (2) legal analysis and reasoning, legal research, problem solving, and oral com-munication; (3) writing in a legal context, including at least one rigorous writing experience in the first year and at least one additional rigorous writing experience after the first year; (4) other professional skills generally regarded as necessary for effective and responsible participation in the legal profession; and (5) the history, goals, structure, values, rules, and responsibilities of the legal profession and its members.
14. Some of the chosen subjects may have been tested, however, on the Multistate Essay Examination (MEE), in those state bar examinations that included the MEE.
15. This correlation was also found in the 2002 Survey, for those law schools accredited after 1992.
16. Whether a required curriculum increases bar passage has been the subject of considerable debate. For some educators, a required curriculum that consists of bar-tested subjects or other sufficiently rigorous courses helps ensure success on the bar examination. But some academics believe that other programmatic features may account for the rising national bar examination scores. See, e.g., Linda Jellum and Emmeline Paulette Reeves, Cool Data on a Hot Issue: Empirical Evidence that a Law School Bar Support Program Enhances Bar Performance, 5 nev. L. J. 646 (2005) (illustrating positive effects of academic support programs by tracking results of their graduates); see also Sonia Bychkov Green, Maureen Staub Kordesh & Julie
M. Spanbauer, Sailing Against the Wind: How a Pre-Admission Program Can Prepare At-Risk Students for Success in the Journey Through Law School and Beyond, 39 u. mem. L. Rev. 307 (2009) (praising a pre-admission program at the John Marshall Law School [Chicago] as one factor in the eventual success of its at-risk students on the bar examination).
17. See Jackson & gee, supra note 11 at 33–39 (examining the required curricula at the 127 ABA-approved law schools in 1975 and acknowledging those courses that were not required but were in high demand because they were tested on the state’s bar examination).
catheRine L. caRpenteR is the Irving D. and Florence Rosenberg Professor of Law at Southwestern Law School in Los Angeles, where she served as the academic associate dean from 1984 to 1997. She currently serves as chair of the Curriculum Committee of the American Bar Association’s Section of Legal Education and Admissions to the Bar and as a member of the Section’s Standards Review Committee and Finance Committee. She recently com-pleted her term as chair of the Section’s Accreditation Committee. From 1995 to 1999 she served on the ABA Section’s Law School Administration Committee and as its chair from 1996 to 1999, and she has been a site evaluator for the Section for the past 20 years.
14 The Bar Examiner, June 2012
In the same week that U.S. News & World Report
released its 2013 law school rankings, Robert
Frank, an economist from Cornell University,
commented in the New York Times that the
preference granted in the job market to graduates of
top-ranked schools leads to increased competition
for those factors that result in high rankings (such
as “bid[ding] more aggressively for the most distin-
guished researchers”1), and this in turn undermines
the Obama administration’s efforts to encourage
universities to control tuition.2 The tension between
the goals of high rankings and reasonable tuition
levels frames the conversation about legal educa-
tion in 2012. Notably absent from this conversation
is an emphasis on educational quality or professional
preparation.
While U.S. News’ and other rankings attempt
to provide a shorthand signal of quality in legal
education, their significant limitations are widely
acknowledged.3 Whatever their value, U.S. News’
rankings fail to focus on one key aspect of legal edu-
cation: the student experience.4 It is not possible to
use these rankings systems to learn about the ways
in which students at a particular school invest time
and energy in their legal education, or whether the
norm at a school is to work collaboratively with
other students or interact frequently with faculty and
staff. Yet these are among the most important issues
shaping the educational experience of law students
during law school. At the same time, schools that are
interested in improving the education they provide
to students will find little to guide their efforts in the
information offered by these rankings.
The Law School Survey of Student Engagement
(LSSSE) takes a radically different approach: it fo-
cuses on legal education from the viewpoint of law
students. Its mission is to help law schools learn
about effective educational practices. LSSSE is an
independent research project housed at the Indiana
University Center for Postsecondary Research;5 since
its inception, it has benefited from close work-
ing relationships with the Association of American
Law Schools and the Carnegie Foundation for the
Advancement of Teaching. LSSSE looks to students
for information and asks them about a variety of
issues relevant to learning. By gathering responses
to approximately 100 questions, including demo-
graphic items, the survey collects data that law
schools can use to determine what things they are
doing well and what needs improvement.6
a Focus on student educationaL engagement LSSSE’s conceptual focus is on educational engage-
ment, which involves the notion that what students
do during the course of their law school experience
relates to how they learn. Engagement is a well-
accepted concept in higher education generally.7
It is a “deceptively simple, even self-evident prem-
the Law schooL suRvey oF student engagement:
heLping Law schooLs undeRstand what’s woRking (and what’s not)
by Carole Silver and Lindsay Watkins
The Law School Survey of Student Engagement 15
ise: the more students do something, the more
proficient they become.”8 Engagement serves as a
proxy for student learning, emphasizing the process
of legal education. Rather than taking the approach
of U.S. News, which rewards schools that have rich
resources, LSSSE’s emphasis is on how “resources
influence the experience of students in the school.”9
LSSE results provide a complement to other infor-
mation about the education offered by a law school,
including student assessment in law school courses
and performance on the bar examination.
What LSSSE Asks about Students’ Law School
Learning Experiences
In order to allow schools to assess engagement,
LSSSE asks students about a variety of issues rel-
evant to learning, such as how hard they work in law
school and how much time they spend on various
class-related, co-, extra- and non-curricular activi-
ties; their relationships with faculty, staff, and other
students, including students who are different from
them with regard to a variety of characteristics; what
their law school emphasizes in terms of how they
spend their time and what they learn; the extent to
which their law school experience has contributed
to their knowledge, skills, and personal develop-
ment in various areas; their writing (and rewriting)
experiences; whether they work collaboratively; and
the kind of learning emphasized in class (such as
analysis, making judgments, or memorization). The
survey also asks students to evaluate the level of
support they feel from their school; this includes
support from particular administrative offices, such
as career advising and student services, and the
overall environment in the school for both academic
and personal support. (See the sidebar on page 16 for
sample survey questions.)
Most of the issues targeted by the survey are the
subject of several questions; the results thus yield
both general and specific information about the
issue under investigation. For example, with regard
to student-faculty interaction, the survey examines
the frequency of interaction, the topic of interaction
(such as classes, assignments, or career plans), the
means of communication, the timeliness of feed-
back, and the context of interaction (in or outside of
class, or unrelated to class). Overall, LSSSE’s ques-
tions generate information about specific aspects of
the law school, such as career services, as well as
about systemic matters, including students’ percep-
tions of their law school’s emphasis on ethics and
professionalism.
how Lssse is administeRed
When schools participate in LSSSE, each currently
enrolled student is asked to complete the survey
through an Internet-based interface. The approach
is to survey each student, rather than a segment of
the student population, in order to identify the dif-
ferences among students who otherwise may appear
similar. Nearly all the questions ask students to
reflect on their activities, lessons, and experiences
of the current year. The survey is administered in
the spring semester, toward the end of the academic
year; this timing minimizes memory-related bias in
responses. Participation in the survey is completely
voluntary on the part of the students.
Students might complete the survey in each year
of law school at some schools, while other schools
participate every other year, every third year, or less
frequently. Patterns of participation relate to schools’
use of their LSSSE data, as well as to concerns at
some schools about survey fatigue. For schools most
interested in monitoring change over time, regular
participation is useful. The average institutional
response rate has been slightly above 50%, and at
certain schools it is as high as 90%.10
During the current school year, about how many hours do you spend in a typical 7-day week doing each of the following?
Reading assigned textbooks, online class reading, and other course materials
0 Hours perweek
1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35
Preparing for class and clinical courses other than reading (studying, writing, doing homework, trial preparation, and otheracademic activities)
0 Hours perweek
1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35
Reading on your own (not assigned) for personal or academic enrichment
0 Hours perweek
1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35
Legal pro bono work not required for a class or clinical course
0 Hours perweek
1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35
Working for pay in a law-related job
0 Hours perweek
1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35
Working for pay in a nonlegal job
0 Hours perweek
1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35
Continue
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During the current school year, about how many hours do you spend in a typical 7-day week doing each of the following?
Reading assigned textbooks, online class reading, and other course materials
0 Hours perweek
1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35
Preparing for class and clinical courses other than reading (studying, writing, doing homework, trial preparation, and otheracademic activities)
0 Hours perweek
1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35
Reading on your own (not assigned) for personal or academic enrichment
0 Hours perweek
1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35
Legal pro bono work not required for a class or clinical course
0 Hours perweek
1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35
Working for pay in a law-related job
0 Hours perweek
1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35
Working for pay in a nonlegal job
0 Hours perweek
1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35
Continue
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In your experience at your law school during the current school year, about how often have you done each of the following?
Veryoften Often
Some-times Never
Asked questions in class or contributed toclass discussions
Prepared two or more drafts of a paper orassignment before turning it in
Worked on a paper or project that requiredintegrating ideas or information fromvarious sources
Included diverse perspectives (different races,religions, sexual orientations, genders, politicalbeliefs, etc.) in class discussions orwriting assignments
Come to class without completing readingsor assignments
Worked with other students on projectsduring class
Worked with classmates outside of class toprepare class assignments
Put together ideas or concepts from differentcourses when completing assignments or duringclass discussions
Continue
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Law School Survey of Student Engagement
During the current school year, how much has your coursework emphasized the following mental activities?
Verymuch
Quitea bit Some
Verylittle
Memorizing facts, ideas, or methods from yourcourses and readings so you can repeat them prettymuch in the same form
Analyzing the basic elements of an idea,experience, or theory, such as examining aparticular case or situation in depth, andconsidering its components
Synthesizing and organizing ideas, information, orexperiences into new, more complex interpretationsand relationships
Making judgments about the value of information,arguments, or methods, such as examining howothers gathered and interpreted data and assessingthe soundness of their conclusions
Applying theories or concepts to practical problemsor in new situations
Continue
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To what extent has your experience at your law school contributed to your knowledge, skills, and personal development in thefollowing areas?
Verymuch
Quitea bit Some
Verylittle
Acquiring a broad legal education
Acquiring job or work-related knowledge and skills
Writing clearly and effectively
Speaking clearly and effectively
Thinking critically and analytically
Using computing and information technology
Developing legal research skills
Working effectively with others
Continue
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Excerpts from the 2011 Law School Survey of Student Engagement
In your experience at your law school during the current school year, about how often have you done each of the following?
During the current school year, how much has your coursework emphasized the following mental activities?
To what extent has your experience at your law school contributed to your knowledge, skills, and personal development in the following areas?
During the current school year, about how many hours do you spend in a typical 7-day week doing each of the following?
Reading assigned textbooks, online class reading, and other course materials
0 Hours perweek
1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35
Preparing for class and clinical courses other than reading (studying, writing, doing homework, trial preparation, and otheracademic activities)
0 Hours perweek
1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35
Reading on your own (not assigned) for personal or academic enrichment
0 Hours perweek
1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35
Legal pro bono work not required for a class or clinical course
0 Hours perweek
1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35
Working for pay in a law-related job
0 Hours perweek
1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35
Working for pay in a nonlegal job
0 Hours perweek
1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35
Continue
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1 of 1 5/3/2011 12:40 PM
During the current school year, about how many hours do you spend in a typical 7-day week doing each of the following? Reading assigned textbooks, online class reading, and other course materials
Preparing for class and clinical courses other than reading (studying, writing, doing homework, trial preparation,
and other academic activities)
Legal pro bono work not required for a class or clinical course
Very often Often Sometimes Never
Very much Quite a bit Some Very little
Very much Quite a bit Some Very little
Law School Survey of Student EngagementSnapshot 2011
Dear Colleague:
I. What aspects of the student experience at Lssseville Law compare most favorably with other law schools?
In the first two sections, we set out high and low comparisons with your selected peers. In each of these sections, we identify the three LSSSE questions that yield the most and least favorable comparisons between your institution and your selected peer group. Section three presents information on student engagement in classroom-related learning at your institution. Finally in section four, we highlight your students' assessments of gains and satisfaction in law school.
We hope this brief snapshot of your LSSSE 2011 data helps you begin a more thorough study of the lessons offered by your results. As always, we would be happy to help you analyze the data, and we look forward to learning alongside you.
Director, Law School Survey of Student EngagementCarole Silver
This document presents a number of key findings from your institution's participation in the 2011 Law School Survey of Student Engagement. We hope it provides a starting point for analysis and discussion. Here, we identify four sets of questions that might be useful for stimulating a conversation among faculty, staff and others at your institution based on your LSSSE results.
Lssseville Law School
With best wishes,
Question1Ls
1. 7f.
2. 5b.
3. 6b.
2Ls1. 5b.
2. 6b.
3. 9c.
3Ls1. 6b.
2. 1i.
3. 8c.
law schools?
12% 14%
Comparison Groups
58% 47% 50%
Lssseville LawSelected
PeersLSSSE 2011
25%Spent more than 5 hours per week working for pay in a nonlegal job
Volunteer or pro bono work
Career counseling
Volunteer or pro bono work
Career counseling
Item Description
40%
95% 83% 84%
70% 60% 59%
43% 42%
46% 34% 38%
61% 50% 49%
53% 44%Your relationships with administrative staff and offices
Career counseling
Participated in a clinical or pro bono project as part of a course or for academic creditProviding the support you need to help you succeed academically
Highest Performing Items Relative to Peer Group
Reviewing your results in comparison to other law schools may help you learn more about important differences in your curriculum or the larger context of your school. The results below identify those three areas in which your school scored highest compared to peer schools.1 We draw here on the largest differences (in percentages) between your school and your peer comparison group, although other differences also may be important to note. A comparison to all 2011 LSSSE schools also is reported below.
78% 66% 57%
60%
Since LSSSE first was administered in 2004,
178 law schools in the United States and Canada
have participated in the survey. More than 198,000
students responded between 2004 and 2011 (the
2012 administration of the survey was conducted in
April). In 2011, more than 33,000 students at 95 law
schools in the United States and Canada responded
to the survey. Participation in LSSSE costs schools a
modest fee, based on the size of the student body.
Participation fees of between $3,000 and $5,000 have
not increased since 2004 and have been the source of
funding for the project since its inception.
the vaLue oF the suRvey to Law schooLs
A Source for Objective Data
LSSSE serves a variety of functions for law school
faculty and administrators. For example, the insight
provided by LSSSE can serve as a powerful real-
ity check on the other messages sent by students
to the administration and faculty. Administrators
may be inundated with messages from particular
special interest groups and may lack a mechanism
for assessing the views of those students who are
neither student leaders nor sufficiently dissatisfied to
complain. LSSSE provides such a measure. Because
the survey is administered by an independent third
party and in a manner that does not disclose stu-
dents’ identities to their law schools, it also may
generate more representative responses than a com-
parable effort by the school. Nevertheless, comple-
mentary investigation through additional sources of
information, such as focus groups and interviews,
supplements the findings from LSSSE and is useful
to provide a thorough understanding of the learning
environment of a school.
A Means for Contextualizing the Data
Equally important, however, is that LSSSE offers
a mechanism for contextualizing a school’s data.
Schools may examine their LSSSE data in two dif-
ferent ways. First, schools can compare their results
over time to track progress. Second, schools can
compare their results to those of other law schools;
this offers insight even to schools that participate on
an irregular basis.
As part of the basic report that each school
receives, comparable data are provided for four
groups of law schools. First, each participating law
school selects a peer group of at least five other law
schools as a comparative framework; schools receive
a report of the aggregated data of their peer com-
parison group with regard to each question on the
survey. Participating schools also receive a report of
the aggregate data of all participating LSSSE schools
for the year, for schools that are similar in terms of
the size of the student body, and for schools that are
similar in terms of their identification as public, pri-
vate, or religiously affiliated law schools.
The ability to analyze student responses in a
comparative and historical context, as well as to
learn what students have experienced in the current
year, makes LSSSE a powerful evaluative asset.
how Law schooLs Receive Lssse data
What Executive Summaries and Means and
Frequency Reports Reveal
Each school participating in LSSSE receives an analy-
sis of its data in a series of reports designed to
facilitate the interpretation of the results. The reports
include an executive summary, which offers a snap-
shot of the data. It highlights those questions on
which a school scored highest and those needing the
most attention in comparison to the school’s peer
group. (See the sidebar on page 18 for excerpts from
a sample executive summary.)
The Law School Survey of Student Engagement 17
Law School Survey of Student EngagementSnapshot 2011
Dear Colleague:
I. What aspects of the student experience at Lssseville Law compare most favorably with other law schools?
In the first two sections, we set out high and low comparisons with your selected peers. In each of these sections, we identify the three LSSSE questions that yield the most and least favorable comparisons between your institution and your selected peer group. Section three presents information on student engagement in classroom-related learning at your institution. Finally in section four, we highlight your students' assessments of gains and satisfaction in law school.
We hope this brief snapshot of your LSSSE 2011 data helps you begin a more thorough study of the lessons offered by your results. As always, we would be happy to help you analyze the data, and we look forward to learning alongside you.
Director, Law School Survey of Student EngagementCarole Silver
This document presents a number of key findings from your institution's participation in the 2011 Law School Survey of Student Engagement. We hope it provides a starting point for analysis and discussion. Here, we identify four sets of questions that might be useful for stimulating a conversation among faculty, staff and others at your institution based on your LSSSE results.
Lssseville Law School
With best wishes,
Question1Ls
1. 7f.
2. 5b.
3. 6b.
2Ls1. 5b.
2. 6b.
3. 9c.
3Ls1. 6b.
2. 1i.
3. 8c.
law schools?
12% 14%
Comparison Groups
58% 47% 50%
Lssseville LawSelected
PeersLSSSE 2011
25%Spent more than 5 hours per week working for pay in a nonlegal job
Volunteer or pro bono work
Career counseling
Volunteer or pro bono work
Career counseling
Item Description
40%
95% 83% 84%
70% 60% 59%
43% 42%
46% 34% 38%
61% 50% 49%
53% 44%Your relationships with administrative staff and offices
Career counseling
Participated in a clinical or pro bono project as part of a course or for academic creditProviding the support you need to help you succeed academically
Highest Performing Items Relative to Peer Group
Reviewing your results in comparison to other law schools may help you learn more about important differences in your curriculum or the larger context of your school. The results below identify those three areas in which your school scored highest compared to peer schools.1 We draw here on the largest differences (in percentages) between your school and your peer comparison group, although other differences also may be important to note. A comparison to all 2011 LSSSE schools also is reported below.
78% 66% 57%
60%
Law School Survey of Student EngagementSnapshot 2011
Dear Colleague:
I. What aspects of the student experience at Lssseville Law compare most favorably with other law schools?
In the first two sections, we set out high and low comparisons with your selected peers. In each of these sections, we identify the three LSSSE questions that yield the most and least favorable comparisons between your institution and your selected peer group. Section three presents information on student engagement in classroom-related learning at your institution. Finally in section four, we highlight your students' assessments of gains and satisfaction in law school.
We hope this brief snapshot of your LSSSE 2011 data helps you begin a more thorough study of the lessons offered by your results. As always, we would be happy to help you analyze the data, and we look forward to learning alongside you.
Director, Law School Survey of Student EngagementCarole Silver
This document presents a number of key findings from your institution's participation in the 2011 Law School Survey of Student Engagement. We hope it provides a starting point for analysis and discussion. Here, we identify four sets of questions that might be useful for stimulating a conversation among faculty, staff and others at your institution based on your LSSSE results.
Lssseville Law School
With best wishes,
Question1Ls
1. 7f.
2. 5b.
3. 6b.
2Ls1. 5b.
2. 6b.
3. 9c.
3Ls1. 6b.
2. 1i.
3. 8c.
law schools?
12% 14%
Comparison Groups
58% 47% 50%
Lssseville LawSelected
PeersLSSSE 2011
25%Spent more than 5 hours per week working for pay in a nonlegal job
Volunteer or pro bono work
Career counseling
Volunteer or pro bono work
Career counseling
Item Description
40%
95% 83% 84%
70% 60% 59%
43% 42%
46% 34% 38%
61% 50% 49%
53% 44%Your relationships with administrative staff and offices
Career counseling
Participated in a clinical or pro bono project as part of a course or for academic creditProviding the support you need to help you succeed academically
Highest Performing Items Relative to Peer Group
Reviewing your results in comparison to other law schools may help you learn more about important differences in your curriculum or the larger context of your school. The results below identify those three areas in which your school scored highest compared to peer schools.1 We draw here on the largest differences (in percentages) between your school and your peer comparison group, although other differences also may be important to note. A comparison to all 2011 LSSSE schools also is reported below.
78% 66% 57%
60%
Law School Survey of Student EngagementSnapshot 2011
II.
Question1Ls
1. 4b.
2. 5f.
3. 8j.
2Ls1. 8j.
2. 7i.
3. 6g.
Lssseville Law School
LSSSE 2011
What aspects of the student experience at Lssseville Law merit further attention when viewed in comparison to other law schools?
73%
44%
47% 53%
66% 79%
66% 79% 74%Computing technology
Wrote more than 3 papers between 5 and 19 pages 39%
Spent more than 5 hours per week relaxing and socializing 60%
49%
Law journal member 35%
Using computers in academic work
62%
Using computers in academic work 70%
76%
76%
53%
Lowest Performing Items Relative to Peer Group Comparison Groups
Lssseville Law
The results below identify those three questions on which your school scored lowest compared to peer schools. 1 We draw here on the largest differences (in percentages) between your school and your peer comparison group; of course, these may not be the most important differences between your school and others.
Item DescriptionSelected
Peers
- 2 -
3. 6g.
3Ls1. 5d.
2. 1e.
3. 8g.
III.
1L 22.55
2L 17.43 1L
3L 13.23 2L3L
52
Providing the support you need to thrive socially 28% 38% 32%
Come to class without completing readings or assignments
5756
66% 79% 74%
Percent of students who frequently ask questions in class:
Set out below are responses for Lssseville Law students to four questions that relate to the learning experiences in and around classes, including preparation for class, participation in class, and discussions relating to class.
Work on a legal research project with faculty outside course requirements
How engaged are Lssseville Law students in classroom-related learning?
13%
29%
Average hours per week spent reading:
Computing technology
20%
How prepared and engaged in their learning are Lssseville Law students?
25%
18% 25%
23
1713
0
5
10
15
20
25
1L 2L 3L
-
Law School Survey of Student EngagementSnapshot 2011
Definitely Y 0 3
782228Providing the support they need to thrive socially
Would Lssseville Law 3L students choose the same law school again?
Gains in solving complex real-world problemsGains in job- or work-related knowledge and skills
Percent
Lssseville Law School
Providing the support they need to help them succeed academically
What do students gain from law school?
Helping them cope with non-academic responsibilities
55Development of a personal code of values and ethics
Percent of 3L students who think their law school experience contributed substantially to:
91
Do students feel supported by Lssseville Law?Percent of 3L students who think their law school experience contributed substantially to: 4 Percent
63Gains in critical and analytical thinking ability
60
30%16% 3%
Definitely Yes
- 4 -
Definitely Y 0.3Probably Ye 0.507Probably No 0.157
Definitely N 0.036
2 Combination of students responding 'very often' or 'often.'3 Rated at least 6 on a 7-point scale.4 Combination of students responding 'very much' or 'quite a bit.'5 Response options “plan to do” and “done” were used for 1L students; “done” was used for 2L and 3L students.6 Combination of students responding 'satisfied' or 'very satisfied.'
Indiana University Center for Postsecondary Research1900 E. Tenth Street, Suite 419Bloomington, IN 47406-7512Phone: 812-856-5824
'03 '04 '05 '06 '07 '08 '09 '10 '11 Lssseville Law data are available from:
For more information:
1 To calculate the differences reported in Sections I and II of this report, LSSSE used all of the items on the core survey instrument except items 10-29. NOTES:
You may access your 2011 and earlier LSSSE results online through the secure LSSSE interface. Visit www.lssse.iub.edu and select "Law School Log-in" from the upper-right corner to access that information, or call us at 812-856-5824 for assistance.
Finally, a useful approach to investigating your LSSSE results is to consider how reponses have changed over time. You might start with comparing results by year as well as the class year of student respondents on the questions raised above in this Snapshot.
30%
51%
16% 3%Definitely Yes
Probably Yes
Probably No
Definitely No
- 4 -
Law School Survey of Student EngagementSnapshot 2011
Definitely Y 0 3
782228Providing the support they need to thrive socially
Would Lssseville Law 3L students choose the same law school again?
Gains in solving complex real-world problemsGains in job- or work-related knowledge and skills
Percent
Lssseville Law School
Providing the support they need to help them succeed academically
What do students gain from law school?
Helping them cope with non-academic responsibilities
55Development of a personal code of values and ethics
Percent of 3L students who think their law school experience contributed substantially to:
91
Do students feel supported by Lssseville Law?Percent of 3L students who think their law school experience contributed substantially to: 4 Percent
63Gains in critical and analytical thinking ability
60
30%16% 3%
Definitely Yes
- 4 -
Definitely Y 0.3Probably Ye 0.507Probably No 0.157
Definitely N 0.036
2 Combination of students responding 'very often' or 'often.'3 Rated at least 6 on a 7-point scale.4 Combination of students responding 'very much' or 'quite a bit.'5 Response options “plan to do” and “done” were used for 1L students; “done” was used for 2L and 3L students.6 Combination of students responding 'satisfied' or 'very satisfied.'
Indiana University Center for Postsecondary Research1900 E. Tenth Street, Suite 419Bloomington, IN 47406-7512Phone: 812-856-5824
'03 '04 '05 '06 '07 '08 '09 '10 '11 Lssseville Law data are available from:
For more information:
1 To calculate the differences reported in Sections I and II of this report, LSSSE used all of the items on the core survey instrument except items 10-29. NOTES:
You may access your 2011 and earlier LSSSE results online through the secure LSSSE interface. Visit www.lssse.iub.edu and select "Law School Log-in" from the upper-right corner to access that information, or call us at 812-856-5824 for assistance.
Finally, a useful approach to investigating your LSSSE results is to consider how reponses have changed over time. You might start with comparing results by year as well as the class year of student respondents on the questions raised above in this Snapshot.
30%
51%
16% 3%Definitely Yes
Probably Yes
Probably No
Definitely No
- 4 -
Excerpts from a sample executive summary sent to LSSSE participants. Additional charts and graphs not shown in this sample portray those items with the lowest performance compared to the schools’ peer group and all LSSSE schools and highlight further selected results pertaining to student engagement in classroom-related learning and student assessment of their law school experience in terms of gains and satisfaction.
More detailed analyses are provided through the
means and frequency reports. These present means
and frequencies for each question, reporting aggre-
gate student responses for each class year in law
school. This offers an easy comparison of the expe-
rience of students as they progress through school.
Simply by comparing students by year of law school,
for example, a school might consider whether stu-
dents increase their interaction with faculty as they
become more comfortable in law school, or whether
third-year students participate more frequently in
class or are more likely to engage in collaborative
learning experiences compared to first- and second-
year students. A school also could learn whether its
third-year students leave the school confident that
they would choose the same school if they could
begin their legal education over again, which may
predict their involvement as alumni in the early
years of their careers. Means and frequency reports
also include the comparison data to peer schools, all
LSSSE schools, and the other two comparison groups
described earlier.
Analyzing Student Response Data Files
In addition, each school receives a data file of its
students’ responses so that it can perform further
analyses. These individual-level data are anony-
mized by LSSSE before they are shared with the law
school. The data file allows the law school to use
its data in a variety of ways. For example, a school
might analyze the similarities and differences in the
engagement experiences of different populations of
law students. Alternatively, a school might analyze
the relationship of engagement and satisfaction in
law school or the relationships between different
types of educationally significant activities, such as
in-class participation and out-of-class discussions
with faculty, classmates, and others.11
Customizing Student Data Results
Schools also may add supplemental student-level
information to the demographic data included in the
survey to customize their results and allow for more
nuanced analyses. For example, through this option,
a school could indicate to LSSSE those students who
are in an academic support program, which then
would be transformed by LSSSE into an additional
variable in the data set; using this new variable,
the school could analyze the relationship between
participation in such a program and engagement in
other educationally purposeful activities. One law
school added information about bar passage and
found a positive correlation between law school
engagement and passing the bar exam. In each case,
when a school adds supplementary student-level
information, the results are anonymized before data
are returned to the school so that students’ identities
are protected.
Evaluating Written Comments
In addition to this quantitative data, LSSSE offers
students an opportunity to provide written com-
ments. These often reveal themes that reinforce the
message of the quantitative data.
how Law schooLs use Lssse data
Schools use their LSSSE data for a variety of purposes:
• The data have been used to guide broad
curricular reform, such as the creation of a new
course to respond to professionalism issues
highlighted by the Carnegie Report,12 as well as
to monitor change after reform.
• LSSSE results have been used as a gauge
for student satisfaction with existing curricular
offerings; one school’s LSSSE data confirmed the
need for more clinical and internship offerings.
The Law School Survey of Student Engagement 19
20 The Bar Examiner, June 2012
• Schools have used LSSSE results to improve
the support provided to their students. At one
school, this took the form of funding on-campus
housing to alleviate the stress of long commutes
and give students more time to engage in the law
school’s activities.
• Other schools have reported that their
results identified the need to reorient a particu-
lar administrative office so that it is more student
focused.
• LSSSE data provide a useful foundation for
monitoring the effect of existing programs, such
as academic support programs, as well as for
setting targets related to strategic planning by
establishing a benchmark with regard to a par-
ticular goal, such as increasing student-faculty
interaction.
• LSSSE results have been used to identify
diversity issues of concern and, by comparing
successive years’ data on questions related to
these issues, to track progress and evaluate the
effectiveness of new initiatives.
• Schools have investigated the relationship
between engagement and bar passage by linking
their LSSSE data to bar pass results; some schools
also are in the process of developing connections
with other external information such as student
participation in academic support programs or
grades, among other variables.
• The data also are commonly used in prepar-
ing for reviews by regulatory authorities for
accreditation purposes, including in self-studies,
because they provide a mechanism for tracking
change over time, among other things.13
The process for making use of the data also var-
ies substantially. At certain law schools, the LSSSE
results are shared widely with faculty, administra-
tors, and students. Several schools that share the
findings broadly also use them to inform community-
wide discussions about issues that need improve-
ment; before taking action, the school investigates
insight from LSSSE and other sources of informa-
tion. At these schools, LSSSE is part of the cre-
ation of a culture of shared values and transpar-
ency. Other schools are more circumspect with
their results. LSSSE encourages schools to share the
results throughout their communities, as conversa-
tions about the findings can contribute to a culture
of institutional improvement, but LSSSE itself makes
the data public only in an anonymous aggregated
fashion.14
how Lssse uses the data
Each year, LSSSE presents selected results of the
aggregate data in its Annual Survey Results.15 The
annual results also highlight promising as well as
disappointing findings. But the data are much richer
than revealed through the brief descriptions in the
annual results, and LSSSE encourages scholars and
policy makers to use the data to inform their work.
LSSSE has used the data to analyze how students
learn about professionalism in law school, and the
data are the subject of ongoing projects investigating
differences in engagement patterns among various
student populations.
annuaL aReas oF Focus and consoRtia options
LSSSE adds several experimental questions to its
core survey each year in order to deepen the under-
standing of a particular issue and to test survey items
in preparation for future editions of or revisions to
the survey instrument. The 2011 survey’s experi-
mental questions sought information about student
The Law School Survey of Student Engagement 21
experiences for part-time versus full-time students as
well as those transferring versus attending a single
law school; they also asked about students’ aware-
ness of and interaction with international graduate
law students enrolled in their law schools. The 2010
experimental survey questions focused on the effec-
tiveness of law schools’ efforts to prepare students
to assume a professional role, the factors that influ-
ence students’ decisions to attend law school and
those that keep them motivated to work hard, and
the influence of nonacademic support on students’
personal and professional development.
In addition, participating schools may combine
into consortia and, as a group, design an additional
set of questions to be administered to the students
of consortium members. These questions could be
organized around a particular theme (such as diver-
sity in legal education), or they could relate to issues
common to the schools participating in the group (for
example, urban law schools may wish to ask addi-
tional questions about commuting and housing).
concLusion
LSSSE provides law schools the opportunity to assess
the educational experiences of their students—to
unpack the “black box” of legal education. Its focus
is on the students and their experiences as students.
Apart from LSSSE, the primary sources of informa-
tion about law students have been pre- and post-
law–school quantitative assessment tools such as the
LSAT and the bar exam. LSSSE can help us better
understand what students and law schools do in the
intervening years and what educational value law
school adds.
Knowing more about the value added during
law school and how the student experience differs at
individual schools allows schools, students (prospec-
tive and current), alumni, and other stakeholders to
gain a meaningful picture of the landscape of legal
education. LSSSE offers a new metric—a process-
oriented approach to assessment—that has the
potential to shift the focus of evaluating the quality
of law schools away from library holdings and fac-
ulty scholarship, and back to the experiences and
environments most conducive to learning to be a
lawyer.
notes
1. Robert H. Frank, The Prestige Chase Is Raising College Costs, new yoRk times, March 11, 2012, available at http://www .nytimes.com/2012/03/11/business/college-costs-are- rising-amid-a-prestige-chase.html?_r=1.
2. Id.
3. See Michael Sauder & Wendy Espeland, Fear of Falling: The Effects of U.S. News & World Report Rankings on U.S. Law Schools, Law School Admission Council Grants Report (October 2007), available at http://www.lsac.org/ lsacresources/Research/GR/GR-07-02.asp; Jeffrey Evans Stake, The Interplay Between Law School Rankings, Reputations, and Resource Allocation: Ways Rankings Mislead, 81 ind. L. J. 229 (2006); An Open Letter to Other Law Bloggers Regarding the US News Rankings, Brian Leiter’s Law School Reports, http://leiterlawschool.typepad.com/ (March 12, 2012) (“When the new rankings come out this week, may I sug-gest that you not post the overall ranking. You all know the overall rank assigned to a school by U.S. News is meaning-less, often perniciously so. It combines too many factors, in an inexplicable formula, and much of the underlying data isn’t reliable, and some of it [e.g., expenditures on secretarial salaries and electrici[t]y] isn’t even relevant.” Leiter is Karl N. Llewellyn Professor of Jurisprudence and Director of the Center for Law, Philosophy, and Human Values at the University of Chicago Law School.)
4. See Patrick T. O’Day and George D. Kuh, “Assessing What Matters in Law School: The Law School Survey of Student Engagement,” 81 ind. L. J. 401, 403 (2006) (“Despite their popularity, rankings provide at best specious insights into the quality of the student experience.”).
5. The Indiana University Center for Postsecondary Research is a research center in the School of Education devoted to studying the student experience. See http://cpr.iub.edu/index.cfm.
6. See the Law School Survey of Student Engagement website, http://lssse.iub.edu/index.cfm.
7. See student engagement in higheR education at 3 (Shaun R. Harper & Stephen John Quaye, eds., Routledge 2009) (“Researchers have found that educationally purposeful engagement produces gains, benefits, and outcomes in the following domains: cognitive and intellectual skill develop-ment; college adjustment; moral and ethical development; practical competence and skills transferability; the accrual of social capital; and psychosocial development, productive racial and gender identity formation, and positive images of self. In addition, . . . students who devote more time to
22 The Bar Examiner, June 2012
academic preparation activities outside of class earn higher grade point averages.”[references omitted]); Bonita London, Geraldine Downey & Shauna Mace, Psychological Theories of Educational Engagement: A Multi-Method Approach to Studying Individual Engagement and Institutional Change, 60 vand. L. Rev. 455, 456 (2007); Robert M. Carini, George D. Kuh & Stephen P. Klein, Student Engagement and Student Learning: Testing the Linkages, 47 Res. in higheR educ. 1, 2 (2006).
8. Supra note 4, at 405–406.
9. Carole Silver, Amy Garver & Lindsay Watkins, Unpacking the Apprenticeship of Professional Identity and Purpose: Insights from the Law School Survey of Student Engagement, 17 J. oF LegaL wRiting inst. 373 (2011).
10. LSSSE helps law schools boost response rates by suggesting that they make select data from prior survey administrations public and talk to their students about how they plan to use the LSSSE results to improve the quality of their legal educa-tion. Law schools are able to view real-time response rates during survey administration, allowing them to ramp up efforts to promote the survey if the response rate is low.
11. To help law schools use their data most effectively, LSSSE has developed resources such as a user’s guide for interpret-ing the data and an instrument to organize the survey items by themes of engagement.
12. The Carnegie Report is the commonly used title for the Carnegie Foundation for the Advancement of Teaching’s study on legal education, Educating Lawyers: Preparation for the Profession of Law, published in 2007. William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond & Lee S. Shulman, Educating Lawyers: Preparation for the Profession of Law (Jossey-Bass 2007), available at http://www.carnegie-foundation.org/sites/default/files/publications/elibrary_pdf_632.pdf. It identified three apprenticeships that combine to form the core of legal education: analytical learning, skills and practical learning, and professional identity and pur-pose. “The Carnegie scholars found that while law schools do an excellent job of teaching students legal analysis and have made strides in teaching the skills necessary for prac-tice, they have not developed well-focused efforts towards teaching the elements comprising professional identity and purpose.” Silver, Garver & Watkins, supra note 9, at 375.
13. LSSSE has developed an Accreditation Toolkit with sugges-tions for incorporating LSSSE data into accreditation self-studies and a map for aligning specific items from the survey to the ABA accreditation standards.
14. LSSSE offers user workshops to give faculty and administra-tors an opportunity to learn more about how they can use LSSSE results at their law schools, as well as school visits and consultations to facilitate school-specific interpretation and analyses.
15. The 2011 survey results, “Navigating Law School: Paths in Legal Education,” as well as survey results since the sur-vey’s inception in 2004, are available on the LSSSE website at http://lssse.iub.edu/order_ar.cfm.
caRoLe siLveR is Professor of Law at Indiana University Maurer School of Law and Director of the Law School Survey of Student Engagement.
Lindsay watkins is Project Manager for the Law School Survey of Student Engagement and Research Associate in the Indiana University Wright School of Education.
The Globalization of Legal Education 23
In June 2010, the American Bar Association
Section of Legal Education and Admissions to
the Bar (“the Section”) appointed the Special
Committee on Foreign Law Schools Seeking
Approval under ABA Standards. The committee’s
charge was to report to the Section Council on the
policy questions involved in whether law schools
located outside the United States and its territories
should be allowed to seek accreditation under the
ABA Standards and Rules of Procedure for Approval
of Law Schools (“the Standards”).1 The committee’s
report, issued in July 2010, stated policy consider-
ations for and against this expansion of ABA law
school accreditation. It is a useful and thoughtful
report responding to current pressures on the ABA
Accreditation Committee and Section Council to
consider the approval of foreign law schools.2
In reflecting on the changes of the past 30 years
relating to legal education and the legal profession,
it is clear that globalization of the practice of law is
perhaps the most significant development that has
taken place. For example, the growth of the European
Union, now comprising 27 countries, has resulted in
the free movement of members of the legal profession
within the Union, transcending different languages
and both civil and common law, and in the corre-
sponding reciprocity of the ability to engage in the
practice of law.
the gLoBaLization oF LegaL education:impLications FoR BaR admissions
by James P. White
Editor’s Note: The following is an essay by James P. White, Professor of Law Emeritus at Indiana University Robert H. McKinney School of
Law and Consultant Emeritus on Legal Education to the American Bar Association. These are his personal observations regarding changes
in legal education—in particular, the globalization of the practice of law and the expansion of international legal education—and the result-
ing implications for bar admissions. (This article is derived from Professor White’s published comments on the ABA’s website in response
to the July 2010 report from the ABA Section of Legal Education and Admissions to the Bar’s Special Committee on Foreign Law Schools
Seeking Approval under ABA Standards, which he refers to in his essay.)
A Few words About Jim white—Hulett H. Askew, Consultant on Legal Education, American Bar Association
To say that Jim White is an icon in American legal education raises the possibility of understatement. Considering his 40-year career as a law professor and national leader in legal education, I have difficulty thinking of anyone who has had more of a posi-tive and long-lasting impact on American legal education than Jim White.
Jim retired in 2000 after 26 years as Consultant on Legal Education to the American Bar Association but continues to serve as Consultant Emeritus. As Consultant, and under the direc-tion of the Council of the ABA Section of Legal Education and Admissions to the Bar, Jim was responsible for the ABA’s law school accreditation project for more than a quarter century. In this capacity, Jim played a leading role in the positive and dra-matic changes in legal education over that period, which range from increased diversity in law schools to an improved student-faculty ratio. Unquestionably, the quality of legal education improved significantly as a direct result of Jim’s serving as the ABA Consultant. During this time period, the number of women attending law school increased 130 percent, minority enrollment increased 150 percent, and the student-faculty ratio was substan-tially improved.
Jim is a life fellow of the American Bar Foundation, a life member of the American Law Institute, a distinguished fellow of the Indianapolis Bar Foundation, and a life member of the Order of the Coif. He has received honorary degrees from 13 universities and law schools and has served as a member of the former China-United States Commission on Legal Education. The Association of American Law Schools, the Law School Admission Council, the ABA Central and Eastern European Law Initiative, and the ABA Board of Governors passed special reso-lutions of appreciation for his leadership in legal education. The ABA and friends have established an annual endowed lecture on legal education at Indiana University Robert H. McKinney School of Law in his honor.
I am but one of many lawyers and legal educators who have benefited directly from Jim White’s mentoring and friendship.
24 The Bar Examiner, June 2012
Globalization of law involves global connec-
tions, global interdependence, global information,
global finance, global governance, and global rights,
and it introduces new challenges into the legal
profession. As then-ABA-President Carolyn Lamm
stated at the opening of the 87th Annual Meeting of
the American Law Institute in 2010, “Certainly glo-
balization has changed the parameters within which
we practice law. We obviously are not going to give
up our core values, and we will
do all in our power to protect
the public, to maintain a strong
and independent self-regulating
legal profession.”3
past aBa initiatives FosteRing gLoBaLization
The ABA Section has a long his-
tory of responding to the phenomenon of the global-
ization of the legal profession. For instance, in 1985,
during my tenth year as ABA Consultant on Legal
Education, the Section developed criteria for foreign
study by students enrolled in ABA-approved law
schools. The underlying premise of these criteria
was to foster foreign study while ensuring aca-
demic quality of the study. The approval process
was devised to ensure both program quality and a
comparative and international component to foreign
programs conducted by ABA-approved law schools.
These criteria have been expanded and refined
during the past two decades. Now there are some
200 foreign summer programs, semester- and year-
long study-abroad programs, dual-degree pro-
grams, and a variety of other programs abroad for
students at ABA-approved law schools. The ABA
Section Council and its Accreditation Committee
have encouraged the growth of these programs in
recognition of the globalization of the practice of
law. The ABA Standards ensure that there is quality
control of the foreign programs of study by the par-
ent ABA-approved law school and that there is full
disclosure to students of the nature of the programs.
Given the inescapable march of globalization
and the pervasiveness with which the law permeates
our society, law schools have unique obligations to
prepare their graduates to prac-
tice in a global environment. The
ABA has provided assistance
in many ways. For instance,
in 1990 it began CEELI, the
Central and Eastern European
Law Initiative, reaching out
to the newly free countries of
Central and Eastern Europe,
and ultimately the countries of
the former Soviet Union, link-
ing American law schools with law schools in these
newly emerging democracies. It has since begun
similar programs in Africa, Latin America, and Asia.
These programs have stimulated new courses in
both comparative and international law in American
law schools, as well as bringing comparative law
into many of the traditional American law school
courses, a phenomenon that has only taken place
in the last 15 years. These programs have made law
schools much more cognizant, and their curricula
much more reflective, of the globalization of legal
practice.
the aBa standaRds and the aBa as centRaL accRediting Body
While the ABA proposed rules and standards for
approval of law schools at its initial 1878 meeting
and periodically reiterated them, it was not until
1921 that the ABA adopted and implemented its
given the inescapaBLe maRch oF gLoBaLization and the peR-vasiveness with which the Law peR-meates ouR society, Law schooLs have unique oBLigations to pRe-paRe theiR gRaduates to pRactice in a gLoBaL enviRonment.
The Globalization of Legal Education 25
first Standards for Legal Education (as they were
then called). The 1921 Section bylaws provided the
following:
Article l – Section 3. Purposes. The purposes of the
Section shall be to consider, discuss, recommend
to the Association, and effectuate measures for
the improvement of the systems of pre-legal and
legal education in the United States; methods for
inculcating in law students the sincere regard for
the ethics and morals of the profession neces-
sary to its high calling; and means for the estab-
lishment and maintenance in the several states
of adequate and proper standards for general
education, legal training, and moral character of
applicants for admission to the Bar, including the
manner of testing their qualifications.
Pursuant to these objectives, and in order to provide
the public with reliable information as to what con-
stitutes a sound legal education, the Section Council
drafted the Standards for Legal Education.
Regulation of legal education in the United
States is unique among all nations. Under the doc-
trine of separation of powers, authority for bar
admissions and licensure principally resides in the
highest courts of the admitting jurisdictions. The
interests of the various admitting jurisdictions in
a competent bar are great. Since the 1920s the vast
majority of jurisdictions have relied upon the ABA
accreditation process. Reliance upon a nationally rec-
ognized accrediting agency relieves each state from
the burden of annually assessing the merits of each
applicant’s educational qualifications and those of
his or her law school. The role that the ABA plays as
a central accrediting body has allowed accreditation
to become national in scope rather than fragmented
among the 50 states and the U.S. territories.
It is useful to compare legal education in civil
law countries with current American legal educa-
tion. Legal education in the civil law world is a kind
of general education. Legal education in the United
States is post-baccalaureate professional education,
taken after completion of an undergraduate degree
requirement. In the United States, legal education
is undertaken at a professional educational institu-
tion—one with adequate resources, university affili-
ation (or at least the advantages of university affili-
ation), and an obligation of service to the practicing
bar and the judiciary in such areas as continuing
legal education. The role of the ABA as a national
accrediting body in the United States is paramount
in ensuring the entry of qualified applicants into the
profession.
in consideRation oF FoReign Law schooL accReditation
We must consider certain issues affecting the global-
ization of legal education and the proposed expan-
sion of ABA law school accreditation. First, the level
of resources of the institutions in different countries
may vary widely. Second, the indirect resources for
supporting the educational goals in those institu-
tions may likewise not be similar. Third, the forces
favoring the internationalization of legal education
sometimes clash with forces seeking to protect spe-
cifically national-level interests that may also have
a valid space in the life of some institutions. Fourth,
the differences in the organizational structure of
departments within the law schools also tend to
impede interrelations.
The July 2010 Report of the Special Committee
on Foreign Law Schools Seeking Approval under
ABA Standards discusses additional policy impli-
cations and arguments for and against expanding
the accreditation role of the ABA to encompass law
26 The Bar Examiner, June 2012
schools located outside the United States and its
territories. It also considers what special concerns
might need to be addressed, and what special rules
might be needed, should the Section Council deter-
mine to proceed with consideration of applications
coming from such law schools.
The current Standards provide foreign-trained
lawyers the opportunity to receive credit toward a
J.D. degree at an ABA-approved law school. I believe
that this method of access to an ABA-approved legal
education is one that should be more carefully exam-
ined and encouraged, as it provides flexibility for
credit of foreign study, while limiting accreditation
only to those law schools located within the United
States and its territories.
Assuming that a foreign law school can comply
with all the requirements of the Standards, the ques-
tion remains whether a graduate of such a school
would be allowed to take, and would seek to take,
a bar examination in an admitting U.S. jurisdiction.
The Report of the Special Committee on Foreign Law
Schools Seeking Approval under ABA Standards cor-
rectly states that foreign students who do not study
in the United States “will not have the benefit of the
acculturation process that naturally occurs when
study is accomplished here and that provides con-
text for understanding the development of U.S. law
and professional ethics.”4 Legal education abroad,
even when based upon the American model, is not
the same as legal education in the United States.
Different cultures make for different education.
The ABA began the law school approval process
in 1921 to assure the highest courts of the jurisdic-
tions that a graduate of an ABA-approved law school
meets minimum qualifications to sit for the bar. I
have serious reservations about whether this assess-
ment can be made on a similar basis for a graduate
from a foreign law school seeking ABA approval.
In the Section Council’s 1987 Report on Long-Range
Planning for Legal Education in the United States,
the following recommendation was made:
The seal of American Bar Association approval
is, and must remain, the universally recognized
stamp of quality.
In this connection, it is proper for the Council
and the American Bar Association to continue
to assert the importance of graduation from the
American Bar Association-approved law school
as a condition for taking state bar examinations.
The process for determining admission to prac-
tice law is a public licensing function of vital
importance.5
I do not believe that an approval process for foreign
law schools can give the jurisdictions’ highest courts
the assurance of minimum qualifications to sit for
the bar. My conclusion is that the ABA should not
extend its approval process to law schools located
outside the United States and its territories.
The question of granting ABA accreditation to a
foreign law school is a different matter from review-
ing the process by which a foreign-trained lawyer
may be allowed to sit for an American bar examina-
tion. Options such as the completion of an American
LL.M. degree for foreign-trained lawyers would
have to be considered.6 Could a method such as the
Qualified Lawyers Transfer Test used in England
and Wales7 or the European Union freedom of
establishment directive8 be modified for the United
States? Should the Standards be amended to increase
the current credit limit toward an American J.D.
degree for a foreign-educated lawyer from one-third
to two-thirds? These are questions for discussion by
the Section Council.
The Globalization of Legal Education 27
Law schooL pRogRams FosteRing gLoBaLization
For over a decade, ABA-approved law schools have
devised programs to foster the globalization of the
study of law. The University of Puerto Rico was a
pioneer in developing a dual-degree program with
the University of Barcelona. Students at each insti-
tution spend one or more additional years at the
other institution. They receive a degree from both
the University of Puerto Rico and the University of
Barcelona and are then eligible to qualify for practice
in both the United States and Spain. The commonal-
ity of heritage and language enhances this program.
Columbia University Law School and Cornell Law
School have similar programs with the University of
Paris 1–Panthéon-Sorbonne.
Recently I visited a dual-degree program offered
by American University Washington College of Law
and Paris West University Nanterre La Défense.
What originally was a program of semester- or year-
long study in Paris or Washington by American or
French students has grown into a dual-degree pro-
gram. American University students spend one or
two years at Nanterre. Upon successful completion
of a Master I degree (J.D. equivalent), they are eligible
to qualify for membership in the Paris bar. They also
have the opportunity to enroll in the Master II degree
program, a highly prestigious specialization, in any
of the areas offered by Nanterre. The American stu-
dent must be fluent in French. The dual-degree pro-
gram relates to the academic program and mission
of American University Washington College of Law
by promoting international law and by offering an
opportunity for students to compare the American
legal system and legal education with those of
France.9
My view is that the programs of Puerto Rico,
Columbia, Cornell, and others are the sensible
approach to American bar admissions for lawyers
principally trained in other countries as well as for
American law school graduates who wish to qualify
as lawyers in a foreign country. Accreditation of law
schools located outside the United States is not in the
interest of the ABA in its law school accreditation
process.
notes
1. The 2010 report follows a July 2009 Report of the ABA Section Special Committee on International Issues, which examined the impact of international issues on legal educa-tion and admissions to the bar and the ways in which the Section could respond to resulting pressures, including the accreditation of non-U.S. law schools. The 2009 report is available on the ABA website at http://www.americanbar .org/groups/legal_education/resources/notice_and_ comment.html (last visited March 21, 2012).
2. The 2010 report recommended that the Section Council authorize the accreditation project to go forward. The Section Council subsequently adopted a resolution in December 2010 to continue with its consideration of the approval of foreign law schools and to engage appropriate public and private stakeholders in such consideration. The Report of the Special Committee on Foreign Law Schools Seeking Approval under ABA Standards, and the Council Resolution on Accreditation of Foreign Law Schools, are available on the ABA website at http://www.americanbar.org/groups/legal_education/resources/notice_and_comment.html (last visited March 21, 2012).
3. Carolyn B. Lamm, President, American Bar Association, Opening Session Remarks at the 87th Annual Meeting of the American Law Institute (May 17, 2010) (transcript available at http://2010am.ali.org/ [last visited March 14, 2012]).
4. American Bar Association Section of Legal Education and Admissions to the Bar, RepoRt oF the speciaL committee on FoReign Law schooLs seeking appRovaL undeR aBa standaRds (2010), available at http://www.americanbar.org/groups/legal_education/resources/notice_and_comment .html (last visited March 21, 2012).
5. American Bar Association Section of Legal Education and Admissions to the Bar, RepoRt on Long-Range pLanning FoR LegaL education in the united states (1987). The report is available at the ABA Section’s Office of the Consultant.
6. At its meeting in March 2011, the Section Council approved a Proposed Model Rule on Admission of Foreign Educated Lawyers and Proposed Criteria for ABA Certification of an LL.M. Degree for the Practice of Law in the United States. The proposed model rule and criteria were distributed for comment, after which the Section Council plans to submit the proposed model rule and criteria to the ABA House of Delegates. According to the report, “[t]he purpose of the . . . Model Rule is to aid state courts and bar examiners in identifying LL.M. programs that meet specific criteria designed to prepare graduates of foreign law schools to take the bar examination and to practice law in the United States.” American Bar Association Section of Legal Education and Admissions to the Bar, RepoRt oF the inteRnationaL
28 The Bar Examiner, June 2012
LegaL education committee (2011), available at http://www .americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/council_reports_and_resolutions/20110420_model_rule_and_criteria_ foreign_lawyers.authcheckdam.pdf (last visited March 9, 2012).
7. The Qualified Lawyers Transfer Test (QLTT) is a test that enables certain foreign-trained lawyers to qualify as solici-tors in England and Wales. See http://www.qltt.co.uk/ (last visited March 9, 2012). ). See also Susan M. Case, The Testing Column: Testing Foreign-Trained Lawyers: A New Exam in England and Wales, 80(3) the BaR examineR 34–37 (Sept. 2011).
8. The European Union freedom of establishment directive facilitates the practice of EU lawyers in other EU mem-ber states. See http://europa.eu/legislation_summaries/ internal_market/living_and_working_in_the_internal_ market/l23023_en.htm (last visited March 9, 2012). See also Julian Lonbay, The Education, Licensing, and Training of Lawyers in the European Union, Part I: Cross-Border Practice in the Member States, 77(4) the BaR examineR 6–17 (Nov. 2008) and Julian Lonbay, The Education, Licensing, and Training of Lawyers in the European Union, Part II: The Emerging Common Qualifications Regime and Its Implications for Admissions in Europe, 79(4) the BaR examineR 25–35 (Nov. 2010).
9. For more information about American University Washington College of Law’s dual-degree program with Paris West University Nanterre La Défense, visit http://www.wcl.american.edu/dualdegree/parisx/.
James p. white is Professor of Law Emeritus at Indiana University Robert H. McKinney School of Law. He is Consultant Emeritus on Legal Education to the American Bar Association, having served as the Consultant for 26 years until 2000.
The Testing Column 29
Like it or not, the minimally
competent adult needs to
know a few things about
measurement in general
and testing in particular. You can’t lis-
ten to NPR or pick up an issue of Sports
Illustrated or USA Today without find-
ing references to measurement con-
cepts: sampling error, margin of error
(plus or minus some number of per-
centage points), predictions of success
or failure. These stories relate to social
polling (“Which is more popular: ketchup or salsa?”),
sports ( “Which golf club is more consistent?”), poli-
tics (“Which candidate is more likely to win the elec-
tion?”), and almost everything else in our day-to-day
lives.
At NCBE’s recent Annual Bar Admissions
Conference in Savannah, I outlined four measure-
ment concepts that everyone involved in bar admis-
sions should understand: sampling, reliability, valid-
ity, and scaling.
sampLing
Sampling refers to using a representative subset of a
larger group (of questions, interview subjects, etc.)
to gain information that can be generalized to the
larger group. Because you can’t test everything a
new lawyer needs to know, the bar exam asks as
many questions as is logistically possible and eco-
nomically feasible. The assumption is that the scores
would generalize to a different set of questions so
that if you were to test the same group
of examinees again using a different
form of the test (such as the February
exam instead of the July exam), each
examinee’s total scaled score would
be virtually the same on both forms.
The broader the content domain,
the more questions are required. For
instance, testing children on their
skill in multiplying two-digit num-
bers requires only a small number of
questions in order to gain a good idea of the level of
proficiency of each child. Other skills might require
a larger set of questions. But for a given topic or set
of topics, all else being equal, the larger the sample
of questions the more likely you are to have a good
estimate of knowledge and skills.
ReLiaBiLity
Reliability is closely related to sampling. Reliability
estimates the extent to which a group of examinees
would be rank-ordered the same if a second similar
test was administered. In other words, can you trust
the score that the examinee received as being repre-
sentative of that examinee’s level of knowledge and
skills in the area tested? As is true with sampling,
all else being equal, the more questions you ask, the
higher the reliability.
Reliability of Written-Component Scores
If more questions provide greater reliability, it fol-
lows that reliability is reduced when fewer questions
the testing Columnwhat eveRyone needs to know aBout testing,
whetheR they Like it oR notby Susan M. Case, Ph.D.
30 The Bar Examiner, June 2012
are used. A score on a single essay does not predict
very well how an examinee is likely to perform on a
second essay; some examinees are going to be lucky
in terms of how well one or both of the essay ques-
tions correspond to their knowledge of the topic, and
some are going to be unlucky. As you increase the
number of essay questions, the reliability of the score
increases, indicating that your estimate of how well
that examinee would perform if you had asked a dif-
ferent set of questions is more precise. The problem
with written-component (essay and performance
test) scores is that bar exams generally have a small
number of such questions, and scores based on a
small number of questions do not have sufficient reli-
ability for high-stakes tests.
Reliability is also reduced when there is inconsis-
tency. In the case of written-component tests, overall
question difficulty varies from one test administra-
tion to the next; grader stringency varies from one
test administration to the next; and grader stringency
also varies from one grader to the next. Statistical
equating of essay scores, which would adjust for
varying levels of difficulty (as discussed later) is not
feasible because essay questions are not reused.
Reliability of Multiple-Choice Scores
While written-component tests have their limita-
tions, the MBE is not a panacea; multiple-choice
questions have an image problem. No matter how
high the quality of the questions, some people con-
tinue to believe that multiple-choice questions are
just too far from the real world to be useful, and fur-
thermore that providing the examinee with options
to choose from makes the assessment challenge even
less realistic. However, the relationship between
scores on the written components and scores on the
MBE is quite high (correlations usually range from
the 0.60s to the 0.80s), indicating that those who
do well on the written components tend to also do
well on the multiple-choice component, and vice
versa. The reliability of the total score constructed by
adding together the total written-component score
and the total MBE score (equally weighted) is large
enough to meet minimum reliability standards for
high-stakes tests.
The advantage of the MBE is that the total scaled
score is very reliable, assuring that if you were
to retest the examinees using a similar exam, the
rank-ordering of examinees would be very similar.
In addition, scores are not affected by grader traits
such as grader inconsistency across time, leniency/
stringency, and inconsistency with other graders.
Another advantage of the MBE is that content is
broadly sampled; luck doesn’t play much of a role
when each examinee has questions covering 200
cases to answer. And the final advantage is that
scores are equated over time to ensure that equiva-
lent levels of performance are required to achieve a
passing score. If a particular MBE is slightly more
difficult than the last one, the scores are adjusted to
take this varying difficulty into account. This adjust-
ment is called equating.
As an aside, equating is done with all standard-
ized tests. Some tests do not provide as much infor-
mation to the general public as the bar exam does, so
you might be unaware of this. For example, all stan-
dardized tests that children take in school or that are
used for admission into college or graduate school
use equating and report only scaled/standardized
scores; all licensing and certification exams in other
professions follow the same practice.
vaLidity
Validity in testing refers to the extent to which the test
score reflects the attribute you are intending to mea-
sure. In the bar exam, validity means ensuring that
you are testing what a newly licensed lawyer needs
to know. Multiple testing methods are used because
each method has strengths and weaknesses, and
The Testing Column 31
each is designed to test somewhat different skills,
each of which is believed to be important for the
practice of law. The pass/fail standard is set at a level
that is believed to protect the public from applicants
who lack the requisite knowledge and skills to be
licensed to practice. Scores that are unreliable cannot
be valid. However, validity requires more than just
reliability; it is not enough to be consistent if you are
consistently measuring the wrong thing. The funda-
mentals of reliability and validity are described in
a previous Testing Column entitled “Back to Basic
Principles: Validity and Reliability.”1
scaLing
The fourth important concept is scaling. Scaling
written-component scores to the MBE involves an
algebraic process that places the written-component
scores on the same scale as the MBE. This process
“equates” the written-component scores and assures
that the scores mean the same thing across test
administrations. Scaling eliminates the variability in
essay question difficulty from one test administra-
tion to the next. Scaling also eliminates the variabil-
ity in grader stringency from one test administration
to the next. Several previous Testing Columns have
been devoted to scaling. One, entitled “Frequently
Asked Questions About Scaling Written Test Scores
to the MBE,”2 answers common questions about
scaling, and another, entitled “Demystifying Scaling
to the MBE: How’d You Do That?”3 describes the
algebra behind actually doing the scaling.
Scaling written-component scores to the MBE
corrects for changes in overall question difficulty or
grader severity from one test date to the next. So,
scaled written-component scores more accurately
reflect examinee competence (on skills measured
by the essays and performance tests) rather than
characteristics of the questions and graders. The
rank-order of examinees’ written-component scores
will remain exactly the same before and after scaling.
The examinee with the highest written-component
score before scaling to the MBE will still have the
highest written-component score after scaling. Some
individuals will score higher on the MBE and lower
on the written component, but over the entire group
the average MBE score and the average written-
component score will be the same.
This last feature is what makes total scaled test
scores transferable across jurisdictions regardless
of the grading scale used on the written compo-
nent. For example, if the average MBE score for a
jurisdiction is 140 and that jurisdiction adds up its
written-component scores and finds that its total
written-component score average is 60, the 60 would
be scaled to become a 140. If, on the other hand,
another jurisdiction with an average MBE score of
140 had an average written-component score of 450,
the 450 would be scaled to become a 140. Scaling
to the MBE is a transformation that puts everything
on the MBE score scale, while at the same time tak-
ing advantage of the equating that is possible with a
multiple-choice test and not with a written test.
Is it an overstatement that familiarity with these
four principles of testing will make your whole life
clearer? Maybe, but it will certainly make you more
effective at carrying out your responsibilities in the
realm of bar admissions.
notes1. Susan M. Case, Ph.D., Back to Basic Principles: Validity
and Reliability, 75(3) the BaR examineR 23–25 (Aug. 2006), available at http://www.ncbex.org/assets/media_files/Bar-Examiner/articles/2006/750306_testing.pdf.
2. Susan M. Case, Ph.D., Frequently Asked Questions About Scaling Written Test Scores to the MBE, 75(4) the BaR examineR 42–44 (Nov. 2006), available at http://www.ncbex.org/assets/media_files/Bar-Examiner/articles/2006/750406_Testing .pdf.
3. Susan M. Case, Ph.D., Demystifying Scaling to the MBE: How’d You Do That?, 74(2) the BaR examineR 45–46 (May 2005), available at http://www.ncbex.org/assets/media_files/Bar-Examiner/articles/2005/740205_testing.pdf.
susan m. case, ph.d., is the Director of Testing for the National Conference of Bar Examiners.
38 The Bar Examiner, June 2012
cases RepoRted
BaR examination
Cheating; permanent denial of application
In re Rojas, 929 So. 2d 1229, 2004-1819 (La. 2006)
chaRacteR and Fitness
Discipline for failure to disclose on the bar application
In re Margherio, M.R. 24956, 2011 PR00028 (IL 2011)
In re Osredkar, 25 A.D.3d 199, 805 N.Y.S.2d 760 (2005)
Rehabilitation; felony convictions
Matter of Wiesner, 94 A.D.3d 167, 943 N.Y.S.2d 410 (NY 2012)
Rehabilitation; felony convictions; permanent disbarment
Florida Board of Bar Examiners re William Castro, No. SC10-2439, 2012 WL
399811 (FL 2012)
BaR examination
Cheating; permanent denial of application
In re Rojas, 929 So. 2d 1229, 2004-1819 (La. 2006)
Liliana G. Rojas failed the February 2004 Louisiana
bar examination. The Committee on Bar Admissions
opposed her application to take the July 2004 bar
examination, based on an indication that she had
either cheated or attempted to cheat on the February
examination by speaking to the applicant next to
her. Rojas applied to the Louisiana Supreme Court
seeking permission to take the July 2004 examina-
tion, but her application was denied. The Office of
Disciplinary Counsel was appointed to conduct an
investigation, and the Court appointed a commis-
sioner to take evidence and report back to the Court
whether Rojas possessed the appropriate character
and fitness to be admitted to the bar and allowed to
practice in Louisiana.
Litigation updateby Fred P. Parker III and Brad Gilbert
Litigation Update 39
The commissioner conducted a character and fit-
ness hearing, in which the matter was consolidated
with In re Valentina LaMont,
the case of the applicant to
whom Rojas spoke during the
exam. At the conclusion of the
hearing, the commissioner’s
report found that Rojas spoke
to LaMont during the Civil
Code III examination in viola-
tion of the committee’s rule
that there be no talking during
the examination and that “the
purpose of their talking was to
in some way cheat on the exam, since there are no
other reasonable hypotheses for the talking.”
After hearing oral argument and reviewing the
evidence and the commissioner’s report, the Court
found that it was established by
the record that Rojas spoke to
the applicant seated next to her
during the Civil Code III exami-
nation administered in February
2004, and it further found that
such conduct constituted cheat-
ing. The Court stated that
“[c]heating on the bar examina-
tion is a particularly egregious act
of dishonesty which we cannot
excuse or overlook.” The Court
ordered that the application by Rojas to sit for the
Louisiana Bar Examination be permanently denied.
In 2004, Scott Margherio filed an application to the
Illinois Board of Admissions to the Bar (IBAB) in
which he failed to disclose various matters includ-
ing honor code violations at his law school and
certain arrests. In May 2006 and again in June 2006
Margherio was arrested for driving under the influ-
ence (DUI) in Illinois. One of the charges was dis-
missed, and in June 2007 he pled guilty to the other
charge and received court supervision. He did not
supplement his application with information about
the 2006 DUI charges, but he later disclosed that
information to an IBAB inquiry panel.
In September 2008 Margherio was again arrested
in Illinois and charged with DUI after his vehicle was
involved in a collision. He failed the field sobriety
tests and refused to submit to a breath alcohol con-
tent test. Following a request by the IBAB, he submit-
ted an additional character and fitness questionnaire,
but he did not disclose the 2008 DUI arrest on the
additional questionnaire.
In March 2009 Margherio entered a plea of
guilty to the DUI charges and was sentenced to 24
months’ probation with conditions and fines. The
board asked Margherio to provide additional infor-
mation about his consumption of alcohol and efforts
to establish sobriety. At no time did he disclose the
September 2008 DUI or the fact that he had not main-
tained abstinence from alcohol.
In May 2009 Margherio met with a character and
fitness inquiry panel and failed to disclose his 2008
DUI to the panel; instead, he maintained that he had
“hit bottom” in 2006 after his second DUI that year
and falsely claimed that he had been sober since
chaRacteR and Fitness
Discipline for failure to disclose on the bar application
In re Margherio, M.R. 24956, 2011 PR00028 (IL 2011)
the couRt stated that “[c]heat-ing on the BaR examination is a paRticuLaRLy egRegious act oF dishonesty which we cannot excuse oR oveRLook.” the couRt oRdeRed that the appLication By RoJas to sit FoR the Louisiana BaR examination Be peRmanentLy denied.
40 The Bar Examiner, June 2012
entering a care facility in June 2006. In May 2009 the
inquiry panel voted to certify his application, and
Margherio was admitted to practice law in Illinois.
In October 2010, Margherio appeared in the
circuit court of Hardin County, Illinois, with the
intention of entering his appearance for a defendant
in a criminal case. When Margherio entered the
courtroom, witnesses observed that he smelled of
alcohol. While waiting for the defendant’s case to
be called, Margherio fell asleep at the counsel table
and then staggered when called to the bench by the
presiding judge, the Honorable Paul Lamar. Judge
Lamar questioned Margherio about his alcohol use,
and Margherio denied using alcohol that morning.
He agreed to submit to a breath alcohol content
test, which showed a content of .06. Judge Lamar
subsequently held a contempt hearing and found
Margherio in direct criminal contempt, sentenc-
ing him to three days in jail. An ethics complaint
was filed against Margherio, which also alleged his
failure to disclose his 2008 DUI arrest on his bar
application. At the disciplinary hearing, two of the
three members of the inquiry panel who had voted
to certify Margherio’s application testified that had
they been aware of the 2008 DUI arrest and convic-
tion, they would have voted to deny his certification.
Margherio was disbarred.
In re Osredkar, 25 A.D.3d 199, 805 N.Y.S.2d 760 (2005)
Peter Osredkar was admitted to the practice of law
in New York in 2000 and was formerly engaged
in the practice of law in Syracuse, although at the
time of trial he resided in the state of Oregon. The
Grievance Committee in New York filed a petition
charging him with making materially false state-
ments in his application for admission to the New
York State Bar and with omitting material facts from
his application. A referee was appointed to conduct
a hearing. Prior to the hearing, the committee filed
a motion to suspend Osredkar as an immediate
threat to the public interest on the ground that he
had filed an application for admission in the state of
Washington that contained false statements and that
he had failed to disclose in that application the pen-
dency of the New York proceeding. Osredkar failed
to respond to this motion and did not appear at the
scheduled hearing. The referee filed a report based
upon exhibits received in evidence and on docu-
ments previously submitted by Osredkar.
The referee found that Osredkar, in his applica-
tion for admission to the bar, had failed to disclose
certain legal employment, a material fact requested
in the application, and also found that prior and sub-
sequent to his admission to the bar, Osredkar had
made false and misleading statements regarding his
employment history on his resume, fabricated let-
ters of recommendation, and falsified his law school
transcript. The referee also found that Osredkar had
made false statements during the New York pro-
ceeding, including a claim that one of the letters of
recommendation had been fabricated by his 13-year-
old daughter.
The Court noted that the referee found no miti-
gating factors. Certain aggravating factors found by
the referee and considered by the Court included
the false statements made by Osredkar during the
investigation and proceedings, Osredkar’s behavior
toward the referee and the committee’s counsel, and
the fact that Osredkar failed to controvert the allega-
tions made by the committee in regard to his attempt
Litigation Update 41
to gain admission to the bar in another jurisdic-
tion (Washington) without disclosing that the New
York proceeding was pending. The Court concluded
that Osredkar had demonstrated that he lacked
the requisite character and fitness to practice law.
Consequently, the Court declined to merely revoke
Osredkar’s admission and place him in the position
that he was in at the time of his original application,
finding that disbarment was a more appropriate
measure. Osredkar was disbarred.
On March 20, 2012, the New York State Supreme
Court, Appellate Division, First Department, ruled
four to one to grant admission to the bar to Neal
Eugene Wiesner after 10 previous rejections. Wiesner
passed the bar examination in 1994 but had been
denied admission to the bar due to two major felony
convictions.
Between 1980 and 1982, Wiesner ran putative
sleep clinics in which licensed doctors supplied
phony prescriptions to individuals who wished to
abuse Quaaludes. Wiesner conspired with several
doctors and a pharmacist to distribute illegal drugs
to customers. In 1987, Wiesner was indicted and
pled guilty to violating federal narcotics laws and to
the distribution and possession of Quaaludes.
Wiesner was also convicted of criminal acts
committed in 1983 against his former girlfriend. As
federal authorities closed in on his Quaalude distri-
bution business, Wiesner became despondent and
took a gun to his ex-girlfriend’s apartment. He held
her there for seven hours until she escaped by jump-
ing out of a second-floor window, sustaining serious
injuries. Wiesner fired several shots in her direc-
tion but did not hit her. As a result of these actions,
Wiesner was convicted of attempted murder, bur-
glary, unlawful imprisonment, criminal possession
of a weapon, and criminal use of a firearm.
Wiesner was incarcerated for five years, after
which he enrolled in college and then in CUNY
School of Law. His first application to the bar
was submitted to the Committee on Character and
Fitness in 1995. That application was not approved,
nor were nine successive motions by Wiesner to
renew his application. Wiesner also lost two federal
lawsuits challenging the First Department’s denial.
In 2009, the First Department granted Wiesner’s
tenth motion to renew his application. Following
an evidentiary hearing in 2010, the Committee on
Character and Fitness voted 20 to 3 to admit Wiesner.
The Court agreed with the Committee on
Character and Fitness and held that crimes commit-
ted by Wiesner “in an earlier life” should no longer
be an impediment to his admission to the bar in New
York. The Court focused its analysis on the issue of
rehabilitation. The majority stated that the “opera-
tive question is whether the record demonstrates
that [Wiesner] has completely rehabilitated himself
. . . so that he may now be said to possess the requi-
site character and fitness to practice law.”
The Court noted that Judicial Law § 90, which
directs the Appellate Division to admit individu-
als to the practice of law who possess the requisite
character and fitness, “reflects no intent to impose
a continuing punishment on an applicant with a
criminal past.”
Rehabilitation; felony convictions
Matter of Wiesner, 94 A.D.3d 167, 943 N.Y.S.2d 410 (NY 2012)
42 The Bar Examiner, June 2012
The Court found that Wiesner’s conduct since
being released from prison demonstrated a “clearer
image of his current character and what it portends
for the future of his legal career.”
In particular, the Court noted
that Wiesner had been admitted
to the bar in a number of other
jurisdictions, where he had been
practicing law for several years
without incident. Wiesner also
presented a number of character
witnesses, many of them highly
regarded lawyers, who testified
to his integrity, honesty, dili-
gence, and ethical rigor.
The First Department’s majority held that a
criminal past is not necessarily a permanent bar
to admission if sufficient time has passed and the
applicant can provide sufficient proof of his or her
rehabilitation. “Although our approval in the past
was impeded by the brevity of time, a sufficient
time period has now passed without incident in
[Wiesner’s] life—during which he has been a practic-
ing attorney in good standing and has contributed
to society—that we are now
persuaded that a change in
circumstances warrants a dif-
ferent result.”
The Court concluded that
there was “no sound basis to
further impede [Wiesner’s]
quest to be admitted to the
bar in the jurisdiction where,
in an earlier life, he violated
the law.”
The minority justice, in
an impassioned 46-page dissent, said that Wiesner
should not have been admitted because “he
approached these applications with a sense of enti-
tlement” and because, although he had “started
down the road to redemption and rehabilitation,” he
had not yet “gotten there.”
Rehabilitation; felony convictions; permanent disbarment
Florida Board of Bar Examiners re William Castro, No. SC10-2439, 2012 WL 399811 (FL 2012)
On February 9, 2012, the Supreme Court of Florida
permanently denied the admission of William Castro
to the Florida Bar. The Court found that Castro’s
prior conduct as a practicing attorney had been so
“egregious” that no amount of time or rehabilitation
would ever suffice to allow his readmission to the
legal profession.
William Castro was admitted to the Florida Bar
in 1981 and practiced law as a criminal defense attor-
ney. In 1994, he was convicted of bribery, conspiracy
to commit racketeering, and 26 counts of mail fraud.
The charges arose out of Castro’s participation in
a scheme involving kickbacks to a sitting judge. In
1988, Castro was approached by Judge Roy Gelber,
who had the authority to appoint Castro as a court-
appointed defense attorney for defendants appear-
ing in the judge’s courtroom. Judge Gelber offered
to appoint Castro as a “Special Assistant Public
Defender” in exchange for a percentage of the money
earned from the appointments, and Castro agreed to
participate in this arrangement.
the couRt noted that JudiciaL Law § 90, which diRects the appeLLate division to admit indi-viduaLs to the pRactice oF Law who possess the Requisite chaR-acteR and Fitness, “ReFLects no intent to impose a continuing punishment on an appLicant with a cRiminaL past.”
Litigation Update 43
From 1989 through 1991, Judge Gelber ap-
pointed Castro to 64 cases and received approxi-
mately $77,000 in kickbacks. (Gelber had also made
similar arrangements with other lawyers in Miami
while in office. The corruption in the Circuit Court
of Dade County was the focus of an FBI sting inves-
tigation called “Operation Court Broom” in which
several judges and lawyers were convicted.)
On April 12, 1994, the Supreme Court of Florida
suspended Castro from the practice of law. The
suspension was followed by a
Bar Complaint against Castro
alleging numerous violations of
the Rules Regulating the Florida
Bar:
4-3.5(a): a lawyer shall not
seek to influence a judge,
juror, prospective juror, or
other decision maker except
as permitted by law or the
rules of court;
4-8.4(b): a lawyer shall not
commit a criminal act that reflects adversely on
the lawyer’s honesty, trustworthiness, or fitness
as a lawyer;
4-8.4(c): a lawyer shall not engage in con-
duct involving dishonesty, fraud, deceit, or
misrepresentation;
4-8.4(d): a lawyer shall not engage in conduct in
connection with the practice of law that is preju-
dicial to the administration of justice; and
4-8.4(f): a lawyer shall not knowingly assist a
judge or judicial officer in conduct that is in
violation of applicable rules of judicial conduct
or other law.
As a result of Castro’s conduct, the Supreme Court
of Florida entered an order on November 12, 1998,
disbarring him from the practice of law with a ban
on seeking readmission for 10 years, nunc pro tunc
(retroactively) to May 12, 1994.
In December 2007, Castro reapplied for admis-
sion to the Florida Bar. To support his case, he pled
rehabilitation. Castro testified that during the time
he was disbarred he had dedicated more than 13,000
hours to community service
(over 700 hours per year over
18 years). He further stated that
he had participated in numer-
ous community service activi-
ties, volunteered at his church,
served as a foster parent,
worked as a guardian ad litem
in the Criminal Law Project,
and organized a Continuing
Legal Education series for the
Florida Bar. Castro also pre-
sented numerous character
witnesses, including many
leaders in the legal and judicial community, one of
whom testified that Castro was “a very good person
that made a very bad mistake.”
The Florida Board of Bar Examiners reviewed
Castro’s petition but recommended that he be per-
manently precluded from seeking readmission to
the bar. The board focused on the egregious and cor-
rupt nature of Castro’s criminal actions. The board
concluded that “no amount of rehabilitation will
ever suffice to allow [Castro’s] readmission to the
Florida legal profession that he dishonored when he
participated in the corruption of the judicial system
that he had sworn as an officer of the court to respect
and uphold.”
the BoaRd concLuded that “no amount oF RehaBiLitation wiLL eveR suFFice to aLLow [castRo’s] Readmission to the FLoRida LegaL pRoFession that he dishonoRed when he paRticipated in the coR-Ruption oF the JudiciaL system that he had swoRn as an oFFi-ceR oF the couRt to Respect and uphoLd.”
44 The Bar Examiner, June 2012
Castro petitioned the Supreme Court of Florida
for review. However, the Court agreed with the
board. The Court admitted that Castro had fully
demonstrated his rehabilitation but said that his
criminal actions, which went “to the very core of
[the] public’s trust and confidence in the judicial
system,” were the type of conduct for which no
amount of rehabilitation would ever be sufficient to
warrant readmission. The decision of the Court was
unanimous.
FRed p. paRkeR iii is the Executive Director of the Board of Law Examiners of the State of North Carolina.
BRad giLBeRt is Counsel and Manager of Human Resources for the National Conference of Bar Examiners.