Paul L. Caron

Thursday, May 14, 2020

Horwitz: Using The Diploma Privilege To Reflect On What We Do And What We Ought To Do

Paul Horwitz (Alabama), Using the Diploma Privilege to Reflect on What We Do and What We Ought to Do:

I suspect most readers would agree that the ABA Journal gets worse every year, perhaps understandably. (It costs money to put out a good journal, among other things. And the market for eyeballs has gotten fiercer.) But I thought this article, which I found via Paul Caron's blog, was pretty good. There has been a good deal of both sincere and strategic invocation of Wisconsin's diploma privilege of late as we look to alternatives to the bar exam in the short and long term. But those invocations are often heavier on citation than on detail. This article quotes Wisconsin lawyers and educators on why they think the diploma privilege works in their state. It could do more still, but it's a good start. (Its author, Stephanie Francis Ward, deserves credit by name.) In doing so, it reflects, and allows reflection, on what lawyers need and on what is needed to train them--and, by contrast, on what we actually do to train them. ...

I offer no strong conclusions. My goal is simply to suggest that the article provides food for thought about what the Wisconsin lawyers and educators think works about their setup and why, and thus about what law schools in general ought to be doing--and what they are actually doing. I can't help but note a certain irony or tension in the current circumstances, in which we are both urging something like an emergency diploma privilege approach and have chosen to adopt pass-fail grading for the semester--with, I am guessing, an assumption or instruction on the part of most schools and professors that few if any students should actually be given a failing grade. We are thus simultaneously using the gatekeeper approach to justify current emergency measures and moving even further away from actually acting as gatekeepers. I'm not criticizing this, or not overmuch. We deal with sudden circumstances as best we can. And much of the movement quickly turned in the direction of supervised rather than unrestricted practice. (Although, on this point, it's worth noting the Wisconsin lawyer regulation official's quote identifying a "poor or nonexistent mentor" as a leading cause of disciplinary trouble. A proper system of supervised practice demands that we give thought to what sound supervision actually requires and impose meaningful and costly demands on both the supervised and the supervisor.)  

But in thinking about longer-term models, we ought to think about what we need to be doing and how it differs from what we do currently. We ought to understand the role of things like compassion more precisely, as a way of dealing with people and their problems and getting the most and best out of them, and not mistake it for the absence of high standards or an unwillingness to make hard and painful decisions--including the decision that someone doesn't belong in law school or in practice. We should avoid the temptation of wanting to be liked, or likable, or popular, especially by leaving the unpopular jobs for someone else: bar examiners, or character and fitness committees, or disciplinary bodies. We shouldn't necessarily keep the features we have now--cheap exam methods, light tenure standards, high graduation rates, large classes, multiplying non-degree programs, aping other academic departments, or what have you. We certainly shouldn't retain them simply because we like them, or because they make us feel like academics and not professional trainers, or because they will ensure that fewer schools go out of business, even if there are independent and plausible justifications for those features. This seems like an excellent time to reflect on what we do and what we should do, and to think about ways we can make life more demanding and less pleasant for law professors and law schools, and perhaps even for law students.

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I agree entirely that law schools should focus more on preparing students to be competent, responsive, and thoughtful practitioners. That wouldn’t require nearly as much sacrifice as tenured faculty often assume. It would, however, require us to abandon the knee-jerk assumption that anything related to law practice is routine, mundane, and non-theoretical. There is plenty of intellectual richness in law practice, and even more in preparing people to do that practice well. And as gatekeepers to the legal profession (both in admissions and education), we owe future clients the best-prepared graduates we can offer.
Faculty who want to improve their curricula in this direction have several sources to guide them. Foundations for Practice, published several years ago by IAALS (the Institute for the Advancement of the American Legal System) is one. Another is a study, Building a Better Bar, that I’m currently conducting with Logan Cornett and several others at IAALS. With the help of researchers at more than a dozen law schools, we have held 49 focus groups (one more to go!) in twelve states. We’re gathering detailed information from both new lawyers and lawyers who supervise them about what new lawyers do during their first year of practice, the knowledge and skills they need, and the mistakes they make.
Our report will be ready by December, and I think the results will surprise many legal educators. Much of what we do prepares lawyers quite well for entry-level practice; the report will add some evidence to practices we have followed primarily by default. But there are definitely gaping holes that law schools should address. Hopefully faculties will be interested in the data and in finding ways to better prepare students for their service to clients.

Posted by: Deborah Merritt | May 14, 2020 9:14:08 AM