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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


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

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.


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


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


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


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


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.


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


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.


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

Law School Survey of Student Engagement 2011 https://www.lawschoolsurvey.org/178435/Main_standard/9/edit.cfm?uuid=B6A90C04-F94C-2A8B-A6DA40AD1C48AE...

1 of 1 5/3/2011 12:40 PM



0 Hours perweek

1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35


0 Hours perweek

1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35


0 Hours perweek

1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35


0 Hours perweek

1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35


0 Hours perweek

1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35


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


1 of 1 5/3/2011 12:37 PM

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

Law School Survey of Student Engagement 2011 https://www.lawschoolsurvey.org/178435/Main_standard/13/edit.cfm?uuid=B6A90C04-F94C-2A8B-A6DA40AD1C48A...

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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?



0 Hours perweek

1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35


0 Hours perweek

1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35


0 Hours perweek

1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35


0 Hours perweek

1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35


0 Hours perweek

1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35


0 Hours perweek

1-5 6-10 11-15 16-20 21-25 26-30 31-35 More than35

Continue


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)


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


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.)



Dear Colleague:







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%


PeersLSSSE 2011



Career counseling


Career counseling

Item Description

40%

95% 83% 84%

70% 60% 59%

43% 42%

46% 34% 38%

61% 50% 49%


Career counseling




78% 66% 57%

60%


Dear Colleague:







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%


PeersLSSSE 2011



Career counseling


Career counseling

Item Description

40%

95% 83% 84%

70% 60% 59%

43% 42%

46% 34% 38%

61% 50% 49%


Career counseling




78% 66% 57%

60%


II.

Question1Ls

1. 4b.

2. 5f.

3. 8j.

2Ls1. 8j.

2. 7i.

3. 6g.


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

-


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


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 -


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


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.



• 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


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


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.


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.


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


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.


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


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.


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.


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.


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


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)


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.”


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.”


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.

bthe ar examiner - ncbe

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