October 13, 2009
Will a uniform bar exam influence law school education for the better or for the worse?The National Law Journal has this effective and important new piece, headlined "Uniform Bar Exam Drawing Closer To Reality." Here are the basics:
Next year, at least 10 states are expected to switch to the so-called Uniform Bar Exam, and 22 other jurisdictions are positioned to adopt the test in the next few years. The test, developed by the National Conference of Bar Examiners, will allow law school graduates to transport their bar scores across state lines without re-taking exams. And backers say a uniform exam will improve the quality of bar exams, particularly in states with small test-development budgets.
The test still has big hurdles to overcome. Several of the biggest legal markets have yet to sign on: New York, California, the District of Columbia, Florida, Illinois and Texas so far have taken a pass. Some worry the test will give short shrift to important state law concepts. Others have scheduling problems and scoring concerns. And the test puts a great deal of power in the hands of the NCBE, which gives some state-level bar officials pause.
And here is one prediction from the NLJ article about how these developments might impact law school education:
Moving toward one test will create notable changes in legal education and the practice of law, said Jerome Hafter, chair of the American Bar Association Section of Legal Education and Admissions to the Bar. The greatest benefit, he said, will be the portability of scores for new graduates. In recent years, more jurisdictions have admitted out-of-state attorneys to practice by a motion to a state court; a portable score is part of a trend toward the nationalization -- if not globalization -- of legal practice, Hafter said. He personally supports the uniform test, although the ABA legal education section has no official position on the issue.
It is important for states to be able set their own pass scores, Hafter said, but he expects that most eventually will settle on the same score, the equivalent of 135 out of 200 on the Multistate Bar Exam. As more states move toward one test, Hafter expects a normalization of law school curriculum, to focus on the core subjects covered on the test. Law schools would not feel the pressure to cover "niche" subjects such as workers' compensation or oil and gas law, since those subjects would not be included.
I have no doubt that the adoption of a uniform (and portable) new bar exam can and will have a profound impact on legal education, at the very least in those states that adopt the exam and probably in all states near states that adopt the exam. If, for example, New Jersey and/or Connecticut both adopt the new Uniform Bar Exam (the nUBE), students attending the many law schools in New York City will surely be interested in making sure that some of their instruction is attentive to nUBE coverage.
Because the nUBE will definitely impact law schools -- especially those schools that have a significant student populations (1) eager to practice in nUBE-friendly jurisdictions and/or (2) that tend to worry a lot about bar passage -- the title of this post question whether that impact will be a good or bad development. Because I think the status quo of bar exams tends to impact law school education for the worse, I am eager to believe that the nUBE might have a positive impact on legal education. But I may be naively optimistic on this front and I am eager to hear other opinion.
Posted by DAB
October 11, 2009
Training the general practitionerThe law school curriculum sometimes seems very odd, as others have noted before. At better schools, most of the students aspire to high-paying jobs with large law firms. Few of them aspire to a low-paying general practice. Yet, our curriculum is crafted so as to train our students to be general practitioners. That is, we make them take roughly equal amounts of torts, property, contracts and criminal law in the first year, and sometimes into the second year. In the upper-level courses they may specialize to some degree, but rarely does that specialization include much that overlaps with what people at big firms actually do. That is, in both traditional classes and clinical offerings, there is often relatively little that covers the two primary functions of large-firm partners and associates: (1) The discovery process in litigation, and (2) the nuts-and-bolts of transactional law practice. Nor, at most schools, is there much to prepare students for what actually happens in criminal practice. The outcome is that we have trained best those who have done the worst and are relegated to a general practice, as they are unable to get large-firm jobs. (Please understand that personally I think these general-practice jobs actually can be far superior to large-firm practice; I am simply dealing with what I perceive as the desires of most students). Meanwhile, we have provided the least relevant training to those who have done the best, and get the plum big-firm jobs.
Of course, some grounding in the basic fundamentals of torts, property, contracts, and criminal law is essential. Still, are we over-doing it? What would be the right balance?
-- Mark Osler