Paul L. Caron

Monday, January 25, 2016

Merritt:  Experiential Education And Bar Passage

Following up on Saturday's post, Robert Kuehn (Associate Dean for Clinical Education, Washington University), Whither Clinical Courses and Bar Passage:  Deborah Jones Merritt (Ohio State), Experiential Education and Bar Passage:

Robert Kuehn has written an excellent post about clinical courses and bar passage. He notes that Erica Moeser, President of the National Conference of Bar Examiners, suggested in print that declining bar passage rates might stem in part from the rise of experiential learning in law schools. NCBE’s Director of Testing and Research has made the same claim, noting that: “There has also been a trend toward incorporating non-core courses and clinical experiences into the law school curriculum. These, too, can take students’ time away from learning the core concepts that are tested on the bar examination.”

When Kuehn contacted Moeser to ask if she knew about any empirical research supporting this purported connection, she admitted that she knew of none. Nor did her testing staff.

Kuehn, in contrast, assembles the available research in his post. There is very little evidence that taking courses on bar subjects correlates with success on the bar exam. There is evidence–cited by Kuehn–that well designed academic support programs can improve bar passage. Where do clinical, writing, and other experiential courses fall on this spectrum? We don’t know; this is an essential subject for research.

I’d also like to turn this debate around: If completion of law school courses in bar subjects doesn’t improve bar passage rates, then what does that tell us about legal education or the bar exam? Are we teaching our courses in a way that fails to stick with students? Or is there something wrong with the bar exam? ...

Lawyers add value if they understand how to work with uncertain facts, to identify client goals, and to solve problems in a complex environment that includes shifting legal principles, facts, and goals. Memorizing the law and applying those principles to neat hypotheticals are no longer enough. Let’s demand a bar exam that measures what lawyers really do.

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Three points:

1. It makes no sense to turn it around and suggest that studying traditional courses is uncorrelated to bar exam results. Such a finding, if it existed, be bad for the bar exam, bad for the law school lecturers in those subjects, and bad for logic itself. It would mean that studying a subject that is tested on the bar had no increase in likelihood of bar passage. No one thinks law school is THAT useless.

2. The bar exam is useful, but imperfect in setting a minimal floor of knowledge that a person who advises others on legal problems for money should have.

The same is true about the medical boards. No general practitioner in modern America is going to feel confident diagnosing dysentery without tests and consulting texts, but we want them to know about it and for certain facts to trigger their spidey senses that dysentery exists.

So, too, with law. A lot is memorization. A lot of the knowledge will be forgotten. There still is value in being forced to build a diverse well of specific factual knowledge to recognize future problems. In other words, long after you've forgotten all the easement rules, there is value in knowing what an easement is and that there are easement rules. You can look them up later.

There is no shortcut to building such a mental reference library other than the hard way. That is what the bar exam and the med boards force us to do. They allow us to develop knowns, recognize future known unknowns, and minimize the likelihood of unknown unknowns.

3. How would you otherwise conduct a bar exam? Submit a research brief?
Run a mock trial? Draft a contract? There are administrative barriers to each and they are less objective than the current test.

Posted by: Jojo | Jan 25, 2016 5:05:40 AM

Well, I certainly agree that we need a better bar exam, and many have written about that. As to the possible correlation between what law school courses are taken and bar exam outcomes, let us not forget this: The bar exam is a test of reading comprehension and legal analysis skills as much as it is a test of substantive knowledge of law (or memorization of law). Taking courses that further the development of those skills ("clinical, writing and other experiential courses," to quote Merritt) might very well increase chances of passing a bar exam.

As for clinics specifically, many of my clinical colleagues require their students to take practice performance tests, which are administered as part of the bar exam in nearly 80 percent of states. Hence, our graduates who have taken a clinic enter the summer of bar prep better situated to succeed on one part of the exam than their classmates who have not. The most forgotten part of the exam during bar prep is the performance test, an all-skills test that requires no memorization of law. Sitting down and taking a practice performance test eats up about twice as much time as taking a practice essay or 25 practice MBE questions. Plus, because the performance test is not a test of knowledge of law, students mistakenly think that they need not worry so much about preparing for it. As a result, students focus mostly on MBE questions, less on essays, and less still on performance tests.

My observations about what students focus on during bar prep is largely anecdotal, not empirical, but based on 14 years of observing it. Still, all of what I see tells me that clinical, writing, and other experiential courses can be at least a net positive when it comes to bar exam preparation.

Posted by: Ben Bratman | Jan 26, 2016 1:55:54 PM