By David Frakt and Carolyn Gachet*
(Note - this is the second in a two part series on Distance Learning. Read Part I here.)
Why do law school bar preparation programs need to improve?
Recently, the ABA released a bar passage spreadsheet for all ABA-accredited law schools across the country (read about it here). This spreadsheet provided some useful new data, which was not previously or readily available, including the “ultimate bar passage” for the class of 2015. This spreadsheet provided both the initial first-time pass rate, and the cumulative eventual or ultimate pass rate within two years of graduation. As noted in another recent post, approximately 20 law schools failed to hit the 75% “ultimate bar passage” benchmark for the class of 2015. 75% is an important benchmark for the “ultimate bar passage” rate because 75% could become a requirement for law schools as part of a revision to Standard 316 in the near future.
In addition, 2016 and 2017 first-time taker bar passage data was released for all ABA-accredited law schools on one spreadsheet, making it much easier for students to compare the bar passage rates of the schools they are considering. Correctly interpreted (see caveats in this post), this data can help inform prospective law school students about the relative success of law schools in getting students like them to pass the bar, both on the first attempt, and within two years. Although bar passage rates generally track the entrance credentials of the student (the more selective the school, the higher the bar pass rate), there is sufficient variation in pass rates at schools with students with similar entrance credentials that we can say with a high degree of confidence that certain law schools are doing a better job preparing students for the bar than others.
Although the UBP rate nationally approached 90%, there is still significant room for improvement in both the first-time pass rate and ultimate pass rate at many schools, especially those schools admitting substantial numbers of at-risk students. Theoretically, any student admitted to law school should be able to pass the bar. Indeed, under Admissions Standard 501, law schools are not permitted to admit any students who do not appear capable of passing the bar. Certainly, any graduates who have earned their J.D. should be able to pass a bar exam within a reasonable time. Those students who appeared capable but turn out not to have the aptitude or sufficient motivation for the study of law should have been attrited before earning a J.D..
Yet thousands of law school graduates still are not passing the bar within two years of graduation. For the graduating class of 2015, approximately 4400 J.D.s who took the bar at least once have still not passed the bar, and this represents an enormous waste of human capital, as well as being a huge personal setback for each of these individuals. Despite what some claim about “J.D. advantage” jobs, almost all students go to law school to become lawyers (as demonstrated by the fact that over 97% of 2015 graduates took a bar exam at least once) and few would make the investment of time and money to attend law school if they knew they would not pass the bar within two years of graduating from law school. Although at least some of these 4400 students probably never would have been admitted to law school in the first place if all law schools were using responsible admission practices, law schools owe it to the students that they do admit and retain to do everything possible to prepare them for the bar exam. Law schools cannot simply rely on the efficacy of external commercial bar preparation companies to prepare graduates to pass the bar, however competent these companies may be. We believe that at least some of these 4400 J.D.s would have passed, and many other graduates would have passed on an earlier try, if law schools had better in-house bar preparation programs. Experience has shown that students with average or worse test-taking skills (as evidenced by their LSAT score) in particular can benefit immensely from bar preparation for the MBE and bar exam essays during law school.
How can distance learning be leveraged to improve law school bar preparation programs?
In our prior post, we mentioned that under the new ABA Proposed Standard 306, the total number of distance learning credits allowed is increasing, and up to 10 distance learning credits will be allowed in the first year for the first time. There are still many in legal education who remain skeptical of the efficacy of distance learning. But while distance learning may not be ideal for all law school classes, there are certainly some courses which can be taught effectively through distance learning. For reasons discussed below, bar preparation courses are particularly well-suited to distance learning. The flexibility of the new standard provides an opportunity for law schools to design a bar preparation program which maximizes the potential of distance learning.
Law professors who teach bar-tested courses may be doctrinal experts on the subject matter of the course, but that does not necessarily mean the professor has any particular expertise in preparing students for the bar exam in that subject. Some professors are not members of the bar, or not members of the bar in the state where the school is located. Those that are may have taken the bar decades ago and may not have current knowledge of the bar’s coverage. Even if the professor knows what is tested on the bar in their subject, often it is not possible or desirable to cover all of the topics covered on the bar in a doctrinal course on the subject. Many professors choose to go for depth rather than breadth in their teaching, and may have other valid pedagogical reasons for not “teaching to the bar.” Doctrinal professors may have little familiarity (or interest) in bar exam taking strategies, or the time or inclination to teach them. For all of these reasons, it is not enough for a law school to simply require students to take courses in bar-tested subjects, and assume or hope that their students will thus be sufficiently prepared to pass the bar in these subjects. To be certain that law students have the best chance to pass the bar, law schools should supplement these doctrinal courses with courses that are specifically designed to prepare students for the bar, building upon the foundation of knowledge that they have acquired in the traditional doctrinal courses. Such courses typically include both a substantive component and a skills component, focusing on MBE style multiple choice questions, or bar essay writing, or both.
As discussed in our previous post, distance learning enables law schools to use the best instructors available, wherever they may be located. Because bar skills courses can cover several doctrinal areas, such courses may be ideal for team teaching, (or the use of guest instructors) with different instructors teaching different lectures. Distance learning makes it more feasible and affordable to use multiple instructors in the same course. Some law schools may only need to offer one bar prep course each spring (or one per semester), and it may be impractical to hire and relocate a bar prep expert just for this purpose (assuming the law school could find someone qualified). Finding a bar prep expert who can teach as an adjunct or lecturer through distance learning is far more feasible. Distance learning will enable law schools in remote areas to use the best bar course instructors available.
Aside from the practical advantages inherent in distance learning, many bar preparation courses are actually ideal for a distance learning format. Distance learning has proven to be highly effective way to prepare students for the bar. Indeed, many of the large, traditional bar courses are now taught fully online during bar preparation after graduation. For students who have never experienced a distance learning format, this can be a jarring transition. It would be helpful for law students to become very comfortable with learning in an online environment during law school before jumping into a full speed online, traditional bar review course after graduation. Using distance learning for a law school’s in-house bar preparation course is an excellent way to familiarize students with distance learning.
Many good law school bar prep programs utilize a thorough 3L MBE course and/or a Bar Exam essay course in the last semester of law school. This helps students to develop a strong foundation to hit the ground running when the traditional commercial bar review course begins after graduation. But with so many subjects covered on the bar exam, it is difficult for one 3L bar skills course to cover all the important doctrinal areas. Since bar exams heavily test first and second year subjects, it may make sense to offer multiple bar skills courses throughout law school, rather than wait until the last semester, especially for students whose law school grades or entrance credentials suggest that they may be at high risk of bar failure. If distance learning is permitted in the first year, as proposed, bar preparedness courses through distance learning could begin as early as the second semester. A summer mini-bar prep course between the first year and second year, focusing on first year subjects and concluding with a “baby bar” modeled on the California first year law students’ examination would also be an excellent way to begin to prepare students for the bar. As noted in our prior post, distance learning can enable geographically dispersed students to take courses over the summer. Distance learning is also a great option for law schools that have many students who take bar exams in different jurisdictions. While all students could take MBE bar review sessions together, students who plan to take the bar in another jurisdiction can get state-specific bar exam prep sessions from experts in those states using distance learning. While it might not be feasible to fly in an expert for one two or three-hour class, setting up a datalink is easy and cost-effective.
There is a misconception that distance learning is not interactive. While distance learning can be used for non-interactive lectures, it is also a very effective platform for interactive classes. Indeed, distance learning platforms often make it easier for all students to be engaged than traditional classroom teaching, by allowing for all students to respond to questions and providing immediate results, for example. Students who are reluctant to speak up in class can use the anonymity in some distance learning platforms to ask questions or offer comments. Distance learning does not mean that a course is fully online either since many distance learning courses require in-person components. Distance learning also allows for a flipped classroom which is a great fit for 3L bar preparation courses. Online videos can be watched at home before class and MBE questions and/or bar exam essays can be completed before class. Instead of class time being used for notetaking and rote memorization, class time is instead used to discuss particular questions or areas that are challenging for several students and students can ask more questions, work in groups and receive more individual assistance. Further, the online dashboard of the distance learning course can be analyzed to identify each student’s areas of weakness to provide personalized intervention throughout the distance learning course. Other online platforms enable interaction that is intended to mimic the Socratic Method. For example, 2U, Inc. has created a Bidirectional Learning Tool (BLT) to create discussion similar to the Socratic Method.
The Bottom Line
Distance learning is here to stay and is likely to become a more and more prominent component of legal education. Distance learning offers convenience and flexibility for students, and may offer significant cost efficiencies for law schools. Each law school must determine how to most effectively integrate distance learning into the law school’s curriculum without sacrificing, and with a goal of actually enhancing, educational outcomes. Incorporating distance learning into the school’s in-house bar preparation program would be a great place to start.
*Carolyn Gachet, Esq., is the Founder and President of Zip Bar Review, a distance learning company. She has been involved with distance learning since 2009.
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