The Faculty Lounge

Guest Post: California Supreme Court Fails Bar Examinees by Mitchel Winick

Dear Readers,

 

I wanted to share this interesting perspective from Mitchel Winick.     

 

California Supreme Court Fails Bar Examinees

 

It is July, and that means another bar exam is looming large for recent law school graduates. In California, it also brings our attention back to the ongoing effort to have the California Supreme Court adjust the bar exam minimum passing score from the arbitrary and unvalidated 1440 cut score that is currently in place to the national mean score of 1350. As Dean of Monterey College of Law, a California accredited law school, I understand that there are those who shrug off this issue as mere whining of California law school deans about low pass rates. However, I would like to offer some facts that better frame the importance of this issue to the profession.

 

First let me say that recently released bar data provides the best response for the second most common question that I get . . . "why am I arguing for dumbing down the bar exam?" I'll let the data speak for itself . . .

 

February 2019 - MBE Scores – First time takers

1340      National mean score

1371      California mean score

1374      Monterey College of Law mean score

 

The results . . . California examinees outscored the nation . . . and our Monterey College of Law examinees outscored California.  

 

Despite these high-performance scoring results, because California uses an artificially inflated minimum passing score of 1440, the California first-time pass rate in February 2019 was 41% and the MCL first-time pass rate was 40% (the 1% statistical difference is due to MCL’s small cohort). In comparison, based on a national mean passing score of 1350, the national first-time passing rate was over 60%. 

 

What is frequently overlooked in news headlines and articles is that California and MCL examinees do not have a 20% lower bar pass rate because they performed poorly. As the results indicate, California examinees outperform national examinees by more than 30 points. The pass rates are 20% lower because the California minimum passing score is artificially set 110 points higher than New York and 80-90 points higher than the other top five jurisdictions. According to the bar’s data, requiring a minimum passing score of 1440 means that a California examinee must score in the top 26% in the nation in order to get licensed in California. Comparatively, the national mean passing score of 1350 requires scoring better than 50% of all examinees.

 

Under what legal or public policy rationale can anyone argue that requiring a minimum passing score in the top 26% of all examinees is a fair measure of “the minimum competency for the first-year practice of law,”the legal standard that is supposed to be used for scoring the bar exam.

 

The "human cost" of this cut score disparity is reflected in recently released California bar exam statistics. From 2011-2018 more than 7,400 competent law school graduates who scored above the national standard of 1350 - almost 1,000 per year - were denied licensure in California solely because of the arbitrary use of 1440 as the California cut score.

 

Finally, let me address the first most common response that I get from currently licensed California lawyers and judges . . . "I passed at 1440, so why shouldn't everyone else have to as well?" 

 

I'll again let the data speak for itself . . . 

 

The California bar is 85% white, 65% male with an average age of 51. The diversity of the bar has changed very little over the past 20 years. It does not reflect the communities that we serve as officers of the court or the demographic and socioeconomic richness of California. The majority of California bar examinees are now minorities (52% in February 2019), so the problem is not in the diversity of successful law school graduates. The problem is that using a standardized test along with an unvalidated artificially high passing score has a disparate impact on minorities . . . as indicated by the State Bar’s own statistics. It perpetuates the same type of barriers to entry into the legal profession that have been repeatedly struck down as unconstitutional in most other licensed professions.

 

The California Constitution prohibits the use of a pre-employment state licensing exam that has a disparate impact on the basis of race, gender, or age. Recently released State Bar statistics reflect that by using the national standard of 1350, the number of successful white examinees since 2011 would have increased by 12.6%, but the number of successful minority examinees would have increased by 20.0%. If the diversity of the bench and bar is a priority, why are we not challenging the continued use of an unvalidated scoring system that systematically bars competent minority candidates from licensure?

At the end of this month another cohort of successful law school graduates will sit for the California bar exam. Before we unjustly deny licensure to another 1,000 qualified law school graduates, the California Supreme Court should take the necessary steps to adjust the minimum passing score for the California bar exam from 1440 to the national mean passing score of 1350.

 

Mitchel L. Winick is President and Dean of a non-profit, California accredited, law school system that includes Monterey College of Law, San Luis Obispo College of Law, and Kern County College of Law. He is the former chair of the State Bar Law School Council and a former member of the Committee of Bar Examiners Rules Advisory Committee.

Dean Winick invites comments to this article in the comments section, or you may email him personally at mwinick@montereylaw.edu.

 

P.S. This is David Frakt - the ABA ultimate pass rate data indicates that California law students who should pass the bar eventually do pass the bar on their second, third or fourth try, but waste thousands of dollars on having to retest, and lose tens of thousands in lost income.  I agree that the California cut score is unjustifiably high.

The Protocols of the Euphemisms of Zion

My essay of that title was posted today at The Bulwark:

The Protocols of the Euphemisms of Zion

What anti-Semites really mean when they complain about “Zionists.”

by Steven Lubet

July 15, 2019 5:02 am

When confronted on their expressions of apparent anti-Semitism, contemporary public figures—think Jeremy Corbyn, Steven Salaita, Louis Farrakhan, or the Chicago Dyke March—typically explain, with varying degrees of credibility, that their real problem is not with Jews but with “Zionists.” The clarification is often questionable, especially when the initial comments were accompanied by classic caricatures, stereotypes, or invectives, but expressions of anti-Zionism can still operate as socially acceptable cover for an underlying disdain or hostility toward Jews (which remain, for now, off-limits in most polite company). It is an all too familiar occurrence, but how far back does it date?  

I thought I had unearthed a very early instance of the phenomenon, in the course of researching another subject, when I came across an old quotation from George Habash, founder of the Popular Front for the Liberation of Palestine, originator of airplane hijackings, and organizer of multiple attacks on Israeli civilians. As it turns out, there was much more to it than the actual quote I found: 

To kill a Zionist far from the battleground has more of an effect than killing 100 of them in battle.

The Opioid Epidemic and Chronic Pain Patients

This is an important article by Chicago Tribune reporter Katherine Rosenberg-Douglas about the impact that the battle against opioid abuse is having on chronic pain patients. In brief, some patients have legitimate medical needs for large amounts of pain medications, but the new and important restrictions on prescription opioids are making them harder and harder to get. And skepticism makes it worse. Here are some key paragraphs:

I broke my back while Rollerblading when I was 21. After three surgeries beginning at age 30, I’ve recovered enough that I’ve gone on to what looks like a normal life. I’m a married mother of twin 4-year-olds, so I am relatively stressed, but fortunately, I’m otherwise relatively healthy.

I’m also on a fentanyl patch delivering slow and steady pain relief to keep me feeling like I can get out of bed, and morphine for breakthrough pain when life requires more of me than merely getting out of bed — and anyone who has ever had a 4-year-old knows each day is far more demanding than that. Just driving my kids to school or sitting for longer than 20 minutes at a time is a struggle.

Last month, I dropped off a prescription before I started work at 7 a.m. on a Sunday, and the pharmacist said she’d need to speak to the doctor so I probably wouldn’t get it until Monday. I had my doctor paged at 6:30 a.m. Agonizing hours passed before I called and pressed for the reason. She told me there were “great distances involved,” between my address, the doctor’s office and where I was visiting my parents for the weekend — although they’re all about a 45-minute drive, pretty standard for Chicagoland.

“It’s suspicious,” she said.

The previous month a pharmacist told me she wasn’t comfortable with the combination of fentanyl and morphine because, “It’s a lot of pain medicine.”

She filled the fentanyl patches but would not fill the morphine. When possible, I’ve used the same pharmacy chain for much of the past 10 years so there would be an easily accessible log of my prescription history, so I implored her to look. She said she had.

“If anything were to happen to you, I would lose my license, not your doctor,” she told me. I mentioned that without the morphine I’d taken for so long, she was putting me in a more perilous situation than if she did. True, she admitted. “But I have the right to refuse to fill any prescription for any reason, and I choose not to fill this for you.”

You can read the full piece here. And you should.

Dream a Little Dream of Me

 

Chicago Defender

The Chicago Defender has ceased publication.

Southern Illinois Law Seeks Dean

Southern Illinois University School of Law is searching for a new dean to start in the summer of 2020.  Full details and and the position announcement are here.

CFP: Integrating Doctrine and Diversity: Inclusion & Equity in the Law School Classroom

Dear Colleagues,

We are writing to invite you to consider submitting contributions to a new book we are editing. It is tentatively titled Integrating Doctrine and Diversity: Inclusion & Equity in the Law School Classroom. This book will be published by Carolina Academic Press as a title in their Teaching series.

Call for Submissions

We are looking for law professors who teach 1L subjects who want to write a case study or practical resource for how to integrate diversity into the legal classroom. While we have secured several authors already, we are looking for professors who teach Contracts, Constitutional Law, Torts, Property, Criminal Law, Civil Procedure, & Legal Writing.

Concept:

Each major chapter will focus on one doctrinal class common to the 1L curriculum and will have 3 essays/case studies of about 3500 words in length, written by a professor of that subject. Each chapter will also have a selected annotated bibliography of resources for teaching diversity/inclusion/equity written by a law librarian specific to each subject. This is the first book of this kind and promises to be ground-breaking and exciting. Law professors are asking for resources on how to better incorporate serious issues of diversity/inclusion/equity into the curriculum and no resource currently exists which provides a variety of case studies and annotated resources organized by subject.

Education resources exist on this topic for use in the classroom but up until now they have not been organized and presented by topic for ease of use. The goal of this project is to bring together the insights and experiences of law faculty from J.D. programs across the country to strengthen the cultural competency of law students."

Please email a statement of interest and a one paragraph summary of your piece to let us know if you want to participate and some basic information about yourself. The deadline for proposals is July 31, 2019.

Format:

The final version must be no longer than 3500 words. We will be using Bluebook format for all footnotes. For questions about style, such as how to write a particular word (i.e., email or e-mail), we will be using The Chicago Manual of Style, 17^th ed. 

(see https://www.chicagomanualofstyle.org/book/ed17/part2/ch07/psec089.html)

 

Timeline:

Notification of Accepted Submissions: By August 7, 2019.

Contract Completed and Returned: By August 16, 2019 (Submit to gbt14@camden.rutgers.edu).

First Complete Draft Due: December 2, 2019 (Submit to gbt14@camden.rutgers.edu).

Final Draft Due: February 1, 2020 (Submit to gbt14@camden.rutgers.edu)

Publication: Spring 2021.

Questions or concerns:

If you have any questions/concerns/problems, please contact one of the editors.

 

Contact a member of the editorial team:

Nicole P. Dyszlewski ndyszlewski@rwu.edu

Raquel Gabriel raquel.gabriel@law.cuny.edu

Suzy Harrington-Steppen sharrington-steppen@rwu.edu

Anna Russell Anna_Russell@LB9.uscourts.gov

Genevieve Tung gbt14@camden.rutgers.edu

 

 

South Dakota Law Seeks Criminal Law Faculty

This just in:

The University of South Dakota School of Law looks to hire an Assistant or Associate Professor, dependent upon qualifications, with expertise in the fields of Criminal Law and Criminal Procedure. This position is on the tenure track and will start at the beginning of the 2020-2021 academic year.
The successful candidate will teach our Criminal Law, Criminal Procedure, and Advanced Criminal Procedure courses. The remainder of the course package will be subject to negotiation. Areas of potential interest include dispute resolution, insurance, bankruptcy, secured transactions, cyberlaw, intellectual property, and agricultural law.

Individuals appointed to tenure-track positions are expected to fulfill the tripartite responsibilities of teaching, scholarship, and service. The successful applicant must be a licensed attorney in a United States jurisdiction (a state or the District of Columbia).
The University of South Dakota embraces and practices the values of diversity and inclusiveness. Candidates who support these values are encouraged to apply. EEO/AA

Applications must be submitted through the Board of Regents electronic employment site: https://yourfuture.sdbor.edu/. For application assistance or accommodation, call 605-677-5671. Please include your application letter, vita, and the names and addresses of three current references.

Inquiries may be directed to Tiffany C. Graham, Associate Dean of Academic Affairs, University of South Dakota School of Law, 414 East Clark Street, Vermillion, SD 57069. You may also send a message by email to Tiffany.Graham@usd.edu, or you may call at 605-658-3509.

"Legal Acumen" Is an Overrated Quality for Judges

In the comments to this post, Jeremy Telman and I had a short exchange on the extent to which SCOTUS justices have been, or will continue to be, nominated on the basis of “legal acumen,” should life tenure be eliminated. In this post, I want to make the case that legal acumen is overrated, especially when it comes to judging. Let me suggest that the only real qualifications for a SCOTUS appointment is baseline competence and a reasonably open mind. Greater acumen adds little or nothing to judging – and might even be a detriment, depending on the circumstances.

First, of course, we need to define the term (which neither Jeremy nor I did in our exchange). Perhaps it means ability as a lawyer, in the sense of being able to determine applicable rules, see connections among precedents, identify relevant principles and apply them in new circumstances and novel ways, and articulate clear positions that are convincing to others.

I am sure I’ve missed a few qualities, but the most important aspect of legal acumen, for lawyers, is the ability to persuade judges (and to a lesser extent juries, in the age of vanishing trials). The persuasion of judges, however, is an exercise in advocacy always conducted on behalf of a client. The lawyer analyzes the client’s case and develops the arguments best suited to winning. This can be a serious challenge, and great lawyers are certainly brilliant at what they do. But this does not seem like a quality especially desirable in judges. Why would we want judges who are gifted at constructing winning arguments for either side of a case, based only on the partisan needs of a client? That seems like the exact opposite of good judging.

Another definition of legal acumen might simply be knowledge of law, including the ability to reach reasoned decisions and express them with clarity. That makes sense, but any lack of preexisting legal knowledge can be easily remedied by reading briefs and assigning research to clerks. Although the demand for encyclopedic knowledge is sometimes used as a gotcha in confirmation hearings – and the presumed lack of expertise derailed the nomination of Harriet Miers, who never even got to a hearing – it is hardly necessary in the age of computer research and multiple clerks. Moreover, it is dangerous for a judge to believe that he or she knows it all, as that can only lead to complacency and missed lines of argument and research. Nor can any nominee possibly have all of the requisite knowledge prior to confirmation – there is just too much law for any one person to have mastered. So again, baseline knowledge would be a necessity for confirmation, but more than that would not contribute to better judging.

University of Hawai‘i Law Seeks Dean

This just in:

The University of Hawai‘i at Mānoa (UH Mānoa) seeks a motivated, dynamic, and experienced visionary leader to serve as Dean of the William S. Richardson School of Law (Law School). Building upon the many strengths of the University, as well as the unique attributes of Hawai‘i and its distinctively multi-cultural and diverse populations of students, faculty, and staff, the successful candidate has an exciting opportunity to lead the Law School in becoming a stronger intellectual presence in Hawai‘i and beyond.

Reporting to the Provost, the Dean will provide leadership and guidance in all aspects of the Law School, including positioning the School locally, nationally, and globally; maximizing the benefit of its multi-cultural and Pacific Island environment; intellectual development; fundraising; and management of all aspects of the Law School operations. As a senior member of the Provost’s team, the Dean is expected to ensure the mission and goals of the Law School are aligned with and supportive of the vision and strategic mission of UH Mānoa and the University of Hawai‘i System, and therefore judiciously balance the best interests of the School with those of the campus, the system, and the community.

The Law School is dedicated to excellence in legal education and scholarship, and the promotion of social justice, ethical responsibility, and public service. It places special importance on the students’ understanding and application of the laws affecting the unique history, diversity, and ecosystems of the State of Hawai‘i and the Pacific Region. Many of its programs and clinics including Environmental Law, Native Hawaiian Law, Pacific-Asian Legal and International Studies, and Elder Law programs are nationally and globally recognized. The faculty, staff, and students are engaged in outstanding scholarship, practice, and/or service.

It's Time to End Life Tenure on the Supreme Court

I am among the signatories to the following letter, circulated by Fix the Court, endorsing the idea of a constitutional amendment to end life tenure for Supreme Court justices. The letter does not advocate any of the several plans that have lately been suggested, but let me note that ending life tenure is a non-partisan proposal that has been advanced by conservatives and liberals alike, as in this article by my colleagues Steven Calabresi and James Lindgren.

To our fellow Americans:

Our nation has embarked on another campaign season in earnest, and soon we will encounter the predictable stream of ad hominem attacks and negative ads that comes with it. Sadly, the process by which we nominate and confirm Supreme Court justices could be described in the same manner.

This should not come as a surprise. With life tenure, each nomination is cast in apocalyptic terms, as neither party knows when its presidents will have another opportunity to make an appointment. The court itself is not blameless, as in recent years it’s handed down what many Americans see as overtly political decisions, typically with 5-4 votes.

There is no easy way to move us out of this dynamic, but it has become clear to us that a strong step in the right direction would be to revisit life tenure at the Supreme Court.

We choose not to endorse any particular plan here, so long as terms are sufficiently long to maintain judicial independence. But we believe that continuing to concentrate power in the hands of a few individuals, who sit for many decades with almost no oversight and little incentive to compromise, is no longer good public policy, if it ever was. A court seen by most Americans as a political actor, whose very legitimacy is routinely questioned, and whose appointment process has devolved into farce, is in need of fixing.

We hope that voters – and by extension, those running in 2020 – will join us in considering the best way to move the country toward a healthier constitutional balance and shift the Supreme Court away from its current role as a battleground in our partisan wars.

Respectfully,

The full list of signatories follows the jump.

Stars and Stripes Forever -- Vocal Rendition (and More)

Given the interest in the lyrics to Stars and Stripes Forever, expressed in the comments on my Independence Day post, here is an a cappella version by the Acoustix:

A few other non-standard arrangements follow the jump, and there is a vocal with more distinct lyrics at the bottom of the post (h/t Alex Lubet).

Katharine Schaffzin Appointed Dean at Memphis

The University of Memphis Cecil C. Humphreys School of Law has announced that it has appointed Katharine Traylor ("Kate") Schaffzin as Dean.  She had served as Interim Dean over the past year, and Associate Dean for Academic Affairs the year before that.  She is Memphis Law's first woman dean.  Congratulations!