What can Law Schools Learn about Bar Passage from Medical Schools’ Approach to Studying Students Who Struggle with Licensing Exams?

It’s not unusual for a provost or a colleague or a relative at Thanksgiving to ask a legal academic why law students have so much trouble passing the bar exam when the pass rates for medical students are usually in the high 90th percent.  The short answer to that question is that the two processes are completely different—and there’s no obvious trick, technique, or intervention that could convert our bar passage rates into their licensure passage rates.   For one thing, it’s the wrong question.  “Passing” the medical licensing exams is certainly important, but unlike the “all or nothing” process of passing the bar exam, the score achieved on Step 1 affects medical students’ entire career path.  But there is a lot to learn about the methods that medical schools use in studying the very few students who have trouble as well as how they evaluate the effect of changes to their curriculums on scores on the licensing exams.

Quick recap on professional licensing—future doctors take a series of three exams over the first six years of their undergraduate medical education and the start of their residency.  (more links in a post I wrote earlier this year here).  The exams are almost entirely national although the actual process of being licensed is conducted on a state by state basis.   Law students take a licensing exam in the state where they intend to practice upon graduation.  For purposes of this post, the closest analogy to the bar exam is the more academic Step One students take during their second year of medical school.  Like  our NCBE, the National Board of Medical Examiners which produces United States Medical Licensing Examination works with medical licensing boards and depends on their confidence.  It issues annual reports.

The focus of this post is on the methods that medical schools use to study the small number of their students who do have trouble passing the licensing the exams as well as the factors that can affect the scores students achieve.  I’ve tried to focus on articles outside of paywalls, and would certainly encourage you to conduct your own searches in the various data bases to which you have access.  There are several journals devoted directly to studying medical education—although these articles can pop up anywhere.

Medical educators use a wide range of research techniques to learn more about students who struggle with licensure exams.  Like us, medical schools would prefer students pass the first time and many articles like this one look for characteristics who fail the first time but eventually pass.  Others look for characteristics of students at risk for failure here and here  or even  what students think of the exam.    Another area for inquiry involves the role stress plays in the score students achieve.   In partnership with social scientists at our schools or in our communities, we too could be conducting studies to help us learn more about students who face difficulty passing the bar exam.  These studies can be part of graduate student work or may even be funded by groups like Access which is making money available to study bar passage.

 

The actual reason the medical school pass rates are so high, though, may not be all that helpful.

It’s not just because they are able to limit admission to students who have already demonstrated an ability to score very highly on the MCAT.  A test that is much more similar to step 1 than the bar exam is to the LSAT.  Indeed, medical schools have direct input in both the MCAT and the Licensing Exams—so when one changes, the other can too. And it’s not clear that anything in the curriculum makes a difference at all—the industry offering study aids and licensure prep courses dwarfs the bar prep and study aid market to a point where students often start studying for the licensing exams before the first day of medical school.

But if it is the curriculum, it’s important to remember the vast difference in time scale between medical and legal education.  We have students for three years post B.A. Medical schools in the U.S. plan their curriculum based on  8 plus years of increasingly specialized medical education.  They are therefore comfortable holding off on the direct teaching of practice skills for the first two years while they are aligning their curriculum with the content of the Step 1 exam.

Even Step 1, though, is far more focused on practice than on knowledge accumulation or deliberately confusing question formulations that characterize the bar exam. Step 2,  the second round of licensing exams prior to graduation medical school,  go past paper and pencil in that they actually test students’ ability to conduct exams and exercise medical judgement.  Another reason for the high pass rate is that most medical schools have stopped developing their own tests and instead use assessment instruments (shelf exams) provided by the same company that produces the exam.   Sure, there is grumbling and criticism about content & timing of the licensing exams, but medical schools work hard to make sure that their curriculums are aligned with the content of the exams.  Finally, medical education is extremely self-reflecting–they are constantly aware of the risks that come from confusing correlation and causation.  How do you know that a change in one part of the curriculum is the cause of a change in test scores?  You run Pearson correlations followed by stepwise linear regressions.  Seeing is not believing when comes to identifying factors that affect performance on licensure exams.   Look here, here, here, and here for studies evaluating curriculum changes.  They take nothing for granted—does attendance make a difference, does flipping classrooms really work? Does reducing the number of hours spend in the anatomy lab reduce USMLE scores?

Another standard practice in medical schools is curriculum mapping— an essential first step for any school that wants to understand what they are teaching—let alone make changes.   Like all maps, curriculum maps are DESCRIPTIVE, not PROSCRIPTIVE.  Here is   Harvard’s curriculum map, but you can find examples on the home page of just about every U.S. Medical School.This is a an article walking through how to map a curriculum.

So what’s helpful to us isn’t so much what medical schools are doing, but how they are evaluating themselves. 

In recap, neither I nor anyone else who has ever practiced law thinks it would be a good idea to emulate medical schools by fully aligning our curriculum with the bar exam so as to turn the three years of law school into one extended bar prep course.  Among other reasons, the material tested on the bar is quite static and doesn’t reflect the realities of today’s law practice.   It also wouldn’t make much sense for schools whose students take the bar exam in many different jurisdictions.   Also, the bar exam is just not equivalent to the three rounds of USMLE exams in actually testing both the knowledge and application of knowledge needed to be a successful lawyer.  If it was, we wouldn’t hear so many complaints about how students who have passed bar are never-the-less not “practice ready.”

Tomorrow—where can we get the help we need to find out this information, and who is going to pay for it?  Spoiler--Access Lex has a program.

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On the Value of Gap Years and Non-Legal Experience to Legal Employers (and Law Schools)

Reviewing the results of the Foundations for Practice survey conducted by the Institute for the Advancement of the American Legal System (IAALS), I cannot help but note how the 24,000 responding attorneys ranked the helpfulness of various criteria for hiring beginning lawyers. (See here.) Just under 80 percent (78.3%, to be exact) identified “life experience between college and law school” as either a very helpful or somewhat helpful hiring criterion. Moreover, while “legal employment” (88.4% ranking as very or somewhat helpful) and “legal externship” (81.5%) unsurprisingly sat near the top of the list, “other experiential education” — meaning non-legal — was very close behind at 79.4%.

The responding attorneys, from a wide variety of practice areas and from throughout the country, ranked these two non-legal experience criteria — “life experience between college and law school” and “other experiential education” — as slightly more helpful than certain types of legal experience, including federal court clerkships, state court clerkships, and participation in law school clinics. The starker divide, however, came when considering traditional hiring criteria related to law school performance. While well over three quarters of respondents classified both personal and professional experience of a non-legal nature as helpful hiring criteria, only 62.5% said the same about law school class rank. Similarly, only 61.1% said so about law school attended, and merely 51.2% said so about law review experience.

One narrative coming out of the survey could indeed be that practical experience matters more than academic experience, and that seems to be what IAALS is highlighting. But, consistent with the results discussed above, I would suggest another as well: Non-legal experience — both personal and professional — matters almost as much, if not just as much, as legal experience.

The survey was just the first phrase of IAALS’s broader project, entitled Foundations for Practice, and the second phrase, which is being implemented now, directly implicates law schools. IAALS is working with four law schools to “translate the survey results into actionable learning outcomes and hiring rubrics.”

The current phrase focusing on law school outcomes turns my mind to the “incoming” side of law school admissions. The results of the survey suggest to me that law schools should more explicitly prioritize admission of students with meaningful life experience or non-legal professional experience. In addition, if it is not already, LSAC ought to be gathering and reporting to law schools pertinent data as to what percentage of law school applicants are undergraduate students who would be going directly to law school. And, as to those who are not, what are the percentages one year out from the undergraduate degree, two years, three or more, etc.? Just as law schools view national statistics on other important admissions criteria (GPA, LSAT, ethnic diversity, to mention a few) as important benchmarks, they ought to be in a position to do the same for number of years since undergraduate degree.

Having a significant percentage of students with meaningful life experience outside of the law is indisputably of great benefit to the law school learning environment. I see it every year in my classroom. More to the point of the IAALS survey results, by bringing in a significant number of students with such experience, law schools will be contributing to better outcomes — learning outcomes and employment outcomes. In a typical incoming J.D. class at my home school, the University of Pittsburgh School of Law, 20% to 30% of the students are three or more years removed from their undergraduate degree. We do not have a part-time or night program, and certainly those schools that do will have higher percentages of that demographic.

At least one-third and in some years close to one-half of the students in our typical incoming class are coming straight out of their undergraduate studies without even one gap year. This demographic exists at nearly every law school in the country (in varying percentages). Given what we know about the next generation of law students, and given the importance of life experience and non-legal experience as hiring criteria to today’s legal employers, these students would seem to face a more challenging path. What do law schools need to do, if anything? Offer or enhance existing professional development programming or curricula? Offer or enhance existing experiential opportunities that are not exclusively legal in nature and that expose students to non-lawyers and other disciplines and experiences? (Just two examples: teaching or working with high school students, or working with entrepreneurs at a tech startup. Law schools affiliated with a university can offer assorted interdisciplinary educational opportunities as well.)  I will be interested to see if the second phrase of the IAALS project emphasizes ideas like these or others that respond to the demonstrated need for lawyers with life experience and non-legal professional experience.

New Research on Law-Student Resiliency

Student resiliency and well-being are on-going concerns to the legal education community. Counselling, academic support, and activities like yoga have been introduced in law schools to address these concerns. Although these strategies are undoubtedly beneficial, a recent research paper suggests that legal educators may have an additional, all-encompassing solution under their noses – the cultural mindset we create in our classrooms.

In the paper The Jury Is In: Law Schools Foster Students’ Fixed Mindsets, Susan Shapcott, Sarah Davis, and Lane Hanson suggest that the law school experience promotes fixed mindsets in law students. Many educators are familiar with Carol Dweck’s work and the concept of mindsets; when students perceive intelligence as an innate trait that one either has or doesn’t have, this is a referred to as a fixed mindset. At the other end of the spectrum, perceiving intelligence as something that develops with effort, strategy and time is referred to as a growth mindset.

The authors reported that third year law students’ mindsets were significantly more fixed than first year students’ mindsets. How does this relate to resiliency and well-being? Quite simply, mindsets are predictive of students’ goals and resiliency to challenges (an inherent part of law school). As students’ mindsets become more fixed, they are more likely to adopt goals intended to demonstrate how smart they are. Consequently, they are less likely to ask for help when they most need it, they will perceive professors’ feedback as judgement, and they may interpret mistakes as evidence that they just don’t have what it takes to succeed. Not only are these behaviors motivationally problematic, they are problematic for mental well-being.

Across a range of fields, growth mindsets are associated with adaptive learning strategies and mentally healthy behaviors that promote well-being and resiliency. So arguably, this is the culture that we should be focused on developing in law schools. However, as Shapcott, et al., report, the opposite may be happening. The longer students are exposed to law-school culture, the more fixed their mindsets become. Therefore, it is time to recognize that there is something adrift in our culture. Furthermore, we cannot simply focus on students’ mindsets without reflecting on the role we as educators play in influencing them.

Students’ well-being won’t change much until law schools work to change the culture from within. Law school classrooms that help students develop growth, not fixed mindsets will do more for students’ resiliency and long-term growth. This starts with faculty members reframing how intelligence and lawyering skills are described (they are learned skills, not innate gifts). When faculty share their own vulnerabilities and struggles to grasp concepts, they create a classroom culture where students are less afraid to ask for help. And when professors give accurate feedback intended to teach students how and what is required for them to improve, rather than simply judging their intelligence, they will help create a growth-mindset culture that reduces students’ stress and increases their strategies for manage their learning experience.

Experience with Peer Support, Peer Review and Feedback on Teaching?  

We are all familiar with engagement in peer review of scholarship. Law faculty culture prioritizes peer input and review of scholarly ideas and articles. Sending drafts of articles to colleagues for feedback, “workshopping” preliminary ideas, and vetting scholarship is part and parcel of the work we do. We visit other schools, make presentations and attend conferences because we value peer discussion and  input. It is the basis by which we create and communicate knowledge.

I don’t believe, however, we have a similarly pervasive culture for formative peer review when it comes to teaching in law schools, although such culture exists at other higher education institutions. According to The University of Texas Faculty Innovation Center, an academic culture which prioritizes informed peer collaboration, review and input on teaching benefits everyone,

Good teachers continually learn and develop. Peer Review, which combines the examination of course materials with in-class observations and collegial discussion, helps prompt this learning among faculty. Ideally, these interactions and conversations can create opportunities for us as colleagues to reflect on and adapt our teaching practices in order to become better teachers and increase student learning.

Northeastern University Center for Advancing Teaching and Learning through Research recommends a four step process:

  • Initial conversation between the observer and the observed
  • The observation itself as an informal data collection and distillation process
  • Follow-up conversation in which the observer shares the observations and collaborates with the observed teacher in any kind of brainstorming or troubleshooting that the observations invite.
  • Reflective summary written by the observed instructor, integrating what was learned from the process and how this will influence future teaching.

Vanderbilt University’s Center for Teaching includes the goal of “enabling more intentional and mutually supportive communities of scholar teachers.”

It is true that we have made some progress in elevating the role of teaching in law schools in the past decade. Legal Education certainly woke up to the need for a culture change around curriculum and teaching following the publication of Best Practices for Legal Education  and Educating Lawyers.  The economic downturn heavily affected the admission process and the need to focus on student learning. ABA requirements regarding student learning outcomes also redirected attention and resources towards what students actually learn while in law school. Moreover, organized efforts such as the Institute for Law Teaching and Learning  and the AALS Section on Teaching Methods  have converted many to the idea that teaching and learning are matters worthy of scholarship, innovation and peer discussion.  Places like this blog and others support exchange of ideas, methods and innovations.

It is also true that as far back as 2008, pioneering legal scholars Gerry Hess and Sophie Sparrow studied factors which encourage or assist the professional development of law teachers including peer observation. So there are many resources available to improve teaching in law schools. Yet, across the academy, are we truly immersed in a continual process of formative feedback for law teachers? If so, the web shows little evidence of it.

I think some of the culture gap is explained by the fact that historically peer review of teaching only happened during a promotion and tenure process that resulted in an up or out decision by the faculty — hardly a formative approach. A voluntary formative program of peer support and review – not used for personnel decisions – should allay those fears.  Appropriate concerns about interference with academic freedom in the classroom might explain some of the culture gap. Except that, even more concerns about academic freedom arise with respect to peer input into “controversial scholarship,” since draft writings can be more easily captured and reproduced than can observations of a single class session. What I think explains the gap, instead, is that we have not properly trained or equipped law faculty with the tools and methods for conducting and receiving helpful peer observations.

At Albany Law, we have promoted a culture of inquiry around teaching and learning for many years now — colleagues sit in each others classrooms from time to time, our Academic Dean prioritizes teaching support, our Center for Excellence in Law Teaching showcases teaching ideas and invites collegial discussion through teaching workshops, and our Director of Online Learning and Instructional Technology facilitates flipped classrooms and other innovations. What we haven’t done is formalize a voluntary peer support and review program. This year, we are planning to revisit our very loose approach and learn from the ever evolving resources and experimentation of others.

So readers, contributors and chance internet searchers, please post here what if any processes have you implemented to support peer observation of law teaching? Is it a voluntary program as we envision at Albany? How has it worked? Or, if you have an opinion about faculty peer review programs, let us know what you think!

I hope to compile the results and report back later in the year!

P.S. If you are more comfortable with e-mail than a blog comment, feel free to contact me at mlync@albanylaw.edu. 

Professor Merritt’s Blog post on attorney discipline and bar exam WORTH A READ!

Our blog has often posted about many issues related to licensing lawyers, experiential requirements for admission, the monopolizing power of the NCBE and the pros and cons of the UBE.  Thus, I recommend to our readers an excellent post by our blogger friend Professor Deborah Merritt over at Law School Cafe on bar exam scores and lawyer discipline. Professor Merritt analyzes an article by Pepperdine Professors Robert Anderson and Professor Derek Mueller entitled The High Cost of Lowering the Bar Exam.   Professors Anderson and Mueller opine that “lowering the bar examination passing score will likely increase the amount of malpractice, misconduct, and discipline among California lawyers.” Merritt objects to any causal inference noting,

Two key facts, however, weigh strongly against drawing that type of causal inference. First, as Anderson and Muller point out, “[t]here is virtually no discipline in the first 10 years of practice.” If the bar exam measured qualities related to attorney discipline, one would expect to see disciplinary cases emerge during those 10 years. Wouldn’t attorneys with marginal competency (as measured by the current bar exam) reveal their deficiencies during their early practice years?

Second, attorney discipline almost never rests on lack of knowledge about legal doctrine, poor reasoning skills, or bad writing–the skills currently measured by the bar exam. Levin and her colleagues reported that attorneys most often received discipline for failing to communicate with clients (20.0%), lack of diligence (17.93%), and failure to safeguard client property (11.26%). Only 4.14% of disciplinary sanctions related to “competence”–and even some of those cases may have reflected incompetence in areas that are not tested by the bar exam.

My favorite comment by Professor Merritt provides another example from which we should not infer causality (however tempting it might be to some of us who have been hurt by patriarchy),

We should not exclude individuals from a profession based on qualities that merely correlate with misconduct.

To underscore that point, consider this: The strongest predictor of attorney discipline is the y chromosome. Male attorneys are much more likely than female ones to be disciplined. If we want to use correlations to reduce instances of attorney discipline, it would be much more efficient to ban men from the profession, subject them to special character exams, or require them to achieve a higher bar exam score than women. Those actions, of course, would raise special issues of gender discrimination–but they illustrate the drawbacks of predicting malfeasance based on correlations.

These questions and assumed correlations are important ones. Many defend the decreasing bar passage statistics as appropriate market correction to prevent “undesirables” from entry into the profession — a consumer protection argument. However, as Professor Merritt points out, there is so much more to unpack here. For example, most misconduct challenges occur against solo practitioners or small firms. This raises overlapping socio-economic questions: which lawyers could be perceived as easiest to challenge, which lawyers have the best legal defense teams, and which kind of clients have the most reason to complain.

After teaching for over 28 years and observing which graduates pass the bar on the first try and which do not , I am skeptical of the Anderson-Mueller argument. I would love to see the NCBE and other scholars engage in a socio-economic analysis of bar passage and of disciplinary misconduct.

Law Schools Going Beyond Learning Outcomes Mandated by ABA

Having taken part in two recent symposia on learning outcomes (PLOs) in legal education, I was encouraged to see the number of law schools that are taking advantage of the recognized pedagogical benefits of adopting and assessing learning outcomes. As most law professors now know, ABA Standards require the adoption of learning outcomes. These standards also mandate programmatic assessment of whether students are attaining these outcomes. ABA Standard 302 dictates certain PLOs that all schools must adopt (e.g., knowledge of substantive and procedural law, legal analysis, research, and writing skills.) However, I saw evidence at each symposium that schools are going beyond the mandatory PLOs and are shaping their learning outcomes for knowledge, skills, and values beyond the minimum. That phenomenon suggest schools recognize the pedagogical value of outcome-based education and are seeking to provide more than the minimum.

The first symposium was entitled “The Next Steps of a Professional Formation Social Movement,” at St. Thomas School of Law on February 16-18–https://www.stthomas.edu/law/events/ symposium-21717.html One of the primary themes of the conference was that between thirty and forty law schools had adopted learning outcome that incorporated professional formation, consistent with the third apprenticeship advocated by the Carnegie Institute’s Educating Lawyers. Because ABA Standard 302 does not require such learning outcomes, the efforts of a growing number of schools to include them show a recognition of the significance of Carnegie’s emphasis on the need to do a better job of helping law student to develop a professional identity as they learn doctrine and lawyering skills. The conference explored professional formation learning outcomes in medical and military education and suggested potential points of comparison to law teaching, the conference further reported new data suggesting that the growing professional formation movement is consistent with the goals of law students. Finally, participants formed working groups to continue with the work necessary to keep the momentum going for the role of professional identity formation in legal education. In short, the symposium demonstrated the steady increase of faculty and schools advocating for integration of professional identity formation into the legal curriculum. See http://beyondtherule.blogspot.com/2017/ 02/cefler-cosponsors-symposium-on.html. The results of the symposium will appear in St. Thomas Law Journal’s upcoming symposium issue.

The University of Detroit-Mercy Law Review also hosted a symposium, on March 2, 2017, which reviewed the impact of learning outcomes and assessment—both institutional assessment of the degree to which students attain the outcomes law schools state as objectives, and more creative assessment in law school classes in the form of both formative and multiple summative assessments — http://www.udetmercylrev.com/symposium/outcome-measure-legal-education-symposium. The symposium highlighted again PLOs being adopted by a wide range of schools that exceed the minimum of ABA Standard 302.   The message of such a response to the advent of learning outcomes in legal education seems to be clear: law schools are willing to use this proven method of ensuring educational quality to improve their programs, not just in the least possible way but in a manner that will help law students achieve the most from their time in school.

These are but some examples of a broader movement in legal education improve pedagogy not only in the classroom (e.g., more formative assessments) but throughout the program (institutional reforms). Despite fears of widespread recalcitrance, a substantial number of law schools appear to be making a genuine effort to improve their programs.

Looking Beyond the Trends: Who’s Our Curriculum Really For?

Just catching up on my summer reading and I came across a short piece titled, “My Best Marketing Advice for Lawyers,” by John H. Fisher, Esq.  In the article, Attorney Fisher responds to an inquiry for his best marketing advice by saying: “Identify your ‘Ideal Client’ and nurture and cultivate the relationship with your Ideal Client through a series of educational and informative newsletters, speaking events, books, and social events.” 1  This three-step plan: paint a picture of your ideal client, attract your ideal client, and nurture the relationship with your ideal client was clear, linear, and supported with some truly clever and constructive examples of providing best tips and advice – for your referral partners. The article concludes that this plan has the power to change law practices, create goodwill, and perhaps make the actor a “mini-celebrity among peers.”  Apropos of the previous blog, such advice seems consistent.  And, to be fair to Mr. Fisher given what follows, he was posed the question, and we are still in the post “failing” law school phase.

 

Two of several things that give me pause here, are in who is assumed to be the “ideal” client and how we are affecting our students’ priorities when we offer and even encourage them to take “law” school courses in economic trends in the legal profession and personal finance.  The apparent underlying assumption of both articles is that the “ideal” client is someone who will financially advantage the lawyer, and/or that the wealth of our profession and ourselves is worthy of credit in a school devoted to the study of law. Understanding that making a living is important, I’d note that there are no major stories about whether lawyers make a “living wage” either here2 or in other nations, or of lawyers who cobble together several jobs over the long-term to support themselves or a family.  But I did, however, recently listen at a ceremony where the head of a non-law institute spoke eloquently about the goal of that educational institution as doing justice and having their faculty involved in field-work toward helping others establish workable justice systems.  Non-lawyers.

 

Whenever students struggle with understanding a statute or regulation and where I sense a disconnect, I encourage asking who benefits from a policy or something being advocated.  Then, recognizing how easy it is to go along with an idea that is being advocated when it is self-benefitting, I encourage students to ask who is left out and, if appropriate, why we continue to allow others’ priorities to be that determinative.

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