The Faculty Lounge

Ultimate Bar Passage: Law Schools at Risk

The Council of the Section on Legal Education and Admissions to the Bar has twice proposed that, for accreditation purposes, the Bar passage requirements of Standard 316 be amended to focus solely on what the ABA calls "Ultimate" Bar passage: the percentage of a law school's graduates who pass the Bar within two years of graduation. All ABA law schools would have to maintain Ultimate Bar passage percentages of at least 75% for every year-group of graduates. The proposed Standard 316 would abandon the current alternate measure, which compares a law school's first-time Bar passage percentage to the ABA first-time Bar passage percentages in each state where its graduates took the Bar.

The proposed new Standard 316 has twice been rejected by the ABA House of Delegates. Despite that, ABA rules permit the Section Council to "reaffirm and adopt" the proposed revision to Standard 316. It is widely expected that they will do so.

At this point, the Section on Legal has released the 2018 and 2019 Ultimate Bar Passage Outcome Reports, which include data for 2015 and 2016 graduates, respectively. The overall Ultimate Bar passage outcomes for all ABA law schools was 88.32% of all 2015 graduates, and 88.57% of all 2016 graduates.

Call for Panels and Conference Announcement: Women's Leadership in Academia Conference @UVALaw, July 18-19, 2019

From colleagues at UVa:

Call for Panel Proposals

We are currently accepting proposals for panels on issues relating to women in legal academia for the second annual Women’s Leadership in Academia Conference, to be held at UVA Law School on July 18-19, 2019. The conference will address the unique perspectives and challenges of women and provide programming that will be useful to developing leaders. Conference programming is focused on building skills and providing tools and information that are directly applicable to women aspiring to be leaders in legal education. Proposals should include a panel title, description, and proposed panelists. Selected panels will be notified by May 15, and panelists’ conference registration and travel costs will be covered. More information on the conference, including a link to provide panel proposals, is available here. Proposals are due by May 1, 2019. For questions, please contact Leslie Kendrick at [email protected].

Conference news:

Second Annual Women’s Leadership in Academia Conference: July 18-19, 2019

Registration is now open for the second annual conference on Women’s Leadership in Academia, to be held at UVA Law School on July 18-19, 2019. The conference is an event of the Women’s Leadership Initiative, which was developed with the goal of advancing women professors, librarians and clinicians in leadership positions in the legal academy. Conference programming is focused on building skills and providing tools and information that are directly applicable to women aspiring to be leaders in legal education. The conference will address the unique perspectives and challenges of women and provide programming that will be useful to developing leaders. Along with panels and workshops, the conference will feature CV review and advising with recruiters. Travel scholarships are available. Early bird registration is open through May 31, and regular registration continues until the conference reaches full capacity. More information is available here. For questions, please contact Leslie Kendrick at [email protected].

New Study on the State of the Entry-Level Law-Jobs Market and its Implications (Part IV: What the Current State and Likely Future of the Law-Jobs Market Means for the Legal Academy)

This is the fourth in a series of what I originally intended to be four posts springboarding off my new study of the entry-level Law-Jobs Market.  I’m now planning a fifth (and if that’s what you have to look forward to, you have my sympathy).  The full paper is available here.  Part I laid out the current state of the job market, and you can find it here.  Part II was about “JD Advantage” placements, and you can find that here.  Part III made some predictions about where entry-level hiring is headed in the foreseeable future, and that one is here.

In the first post in this series, I showed you that the entry-level Law-Jobs market appears to have finally leveled out after a decade-long decline, but that the number of entry-level Law Jobs is now 25.7% lower than it was in 2007, and at levels not seen since the early 1990s.  The proportion of the graduating class getting a Law Job (the Law-Jobs Ratio) has recovered, but that’s only because of the crash in the number of people attending law school.  In short, there are way fewer entry-level Law Jobs than there were ten years ago, but even fewer people graduating from law school.  In the third post, I predicted that while the long, steep decline in entry-level hiring is probably over, the steady and rapid growth in the job market that preceded it for at least thirty years is not likely to return anytime soon.  Instead, we have reset to a new, more modest entry-level job market about 25% smaller than the one we had in 2007, one likely to show, on average, only gradual growth of perhaps 1%-2% per year.

So what does this mean for the legal academy?  I offer my reflections after the jump.

New Study on the State of the Entry-Level Law-Jobs Market and its Implications (Part III: The Future of the Entry-Level Law-Jobs Market)

This is the third in a series of what I intended to be four posts on my new study of the entry-level Law-Jobs Market (though I’m now thinking about a fifth).  Part I laid out the current state of the job market, and you can find it here.  Part II was about “JD Advantage” placements, and you can find that here.  The full paper is available here. 

In the first post in this series, I showed you that the entry-level Law-Jobs market appears to have finally levelled out after a decade-long decline, but that the number of entry-level Law Jobs is now 25.7% lower than it was in 2007, and at levels not seen since the early 1990s.  The proportion of the graduating class getting a Law Job (the Law-Jobs Ratio) has recovered, but that’s only because of the crash in the number of people attending law school.  In short, there are way fewer entry-level Law Jobs than there were ten years ago, but even fewer people graduating from law school.

Now it’s time to discuss where the entry-level Law-Jobs market is going.  I’ll give you my best guess after the jump.

New Study on the State of the Entry-Level Law-Jobs Market and its Implications (Part II: What the Market is, and What the ABA is Not, Telling Us about “JD Advantage” Placements)

This is the second in a series of what I intend to be four posts on my new study of the entry-level Law-Jobs market.  Part I laid out the current state of the job market, and you can find it here.  The full paper is available here. 

Today I’ll discuss so-called “JD Advantage” placements, what the job market is telling us about them, and what the available data is not telling us.

For those not entirely familiar, the ABA’s disclosure requirements call on reporting law schools to break down their recent graduates’ employment outcomes (among other ways) into four mutually exclusive categories:  Bar Passage Required, JD Advantage, Professional Position, and Nonprofessional Position.  The current definition of a JD Advantage position (see here at p.26) includes that its “duties . . . do not require passage of the bar exam or an active law license or involve practicing law”; but “[t]he possession of a JD by the graduate was sought by the employer, required by the employer, or provided a demonstrable advantage in either obtaining or performing the duties of the position from the perspective of the employer . . . .”  (For a history of the evolution of this job category, see my earlier job-market study at 555-59.)

I’ll talk about the problems with this definition, and what we do and don’t know about its application, after the jump.

New Study on the State of the Entry-Level Law-Jobs Market and its Implications (Part I: Where the Job Market for New Law Graduates is Today)

I’ve posted on SSRN a draft of my new study of the entry-level Law-Jobs market and its implications.  You can find the draft here.  It’s a followup to my earlier study on the job market, published in the middle of the Great Recession’s aftermath in 2014.  I presented an earlier draft of the new paper last spring at Florida International’s Summit on the Future of Legal Education and Entry to the Profession.  That conference was ably organized by Scott Norberg and generously co-sponsored by LSAC.  The paper will appear later this year in the Symposium Issue of the FIU Law Review devoted to the Summit.

Rather than imposing one long post on those interested, I thought I would break a discussion of the findings into four parts, posted over the next week or two.  This Part will discuss the current state of the entry-level Law-Jobs market.  Subsequent posts will discuss (ii) the entry-level placements the ABA calls “JD-Advantage”; (iii) predictions regarding future trends in entry-level employment for new law graduates; and (iv) the implications for the legal academy of where the job market is and where it’s going.

So where are we these days?  I’ll fill you in after the jump.

Recent Bar Pass Rates - A Cautionary Tale

A number of states have released bar results from the July 2018 examination over the last several weeks, including New York, Texas and Florida.  Overall, performance on the bar was very poor, although there have been a few bright spots.  The national average on the MBE was down 2.2 points to 139.5, a 34 year low.   To those who have followed law school admission trends closely, this should not have come as a surprise. The 2014 and 2015 entering law school classes were arguably the weakest ever in terms of entrance credentials, and these cohorts (part-time students who started in 2014 and full-time students who started in 2015) made up the majority of the first-time test takers in July.  There were also a lot of repeat takers from 2017 and February 2018 who also had very low credentials.

The purpose of this post is to remind everyone, especially law school faculty and administrators at lower tier schools, of the perils of admitting very high risk (LSAT of 145-146) and extremely high risk (144 and below) students.  As law schools start to experience an uptick in applications, the focus, especially at low-performing schools, should be on raising the quality of admitted students, not growing the class.  A few examples should suffice to demonstrate this point.

Touro Law School – Touro had 105 first time takers on the New York July bar; 51 passed. That’s a 48.6% pass rate.  Touro’s 2015 entering class was terrible:  149/147/145 LSATs with GPA at 3.31/3.03/2.77.   

Texas Southern - 69 of 155 Texas Southern graduates passed the July 18 Texas bar for a 44.5% rate. In February, TSU had 5 of 18 first time takers pass, for a 27.88% rate.  Overall 74 of 173 TSU grads passed for a 42.8% first-time pass rate in Texas for 2018.  TSU’s 2015 entering class had an atrocious LSAT GPA profile of 146/143/141 3.44/3.11/2.80. Texas Southern was sanctioned by the ABA for its admissions practices in June 2017, and this is why.  Texas Southern was admitting large numbers of extremely high risk students and the bar pass statistics reflect this.  Texas Southern has not yet released the class profile for the 2018 entering class but it has promised the ABA to significantly raise its admission standards.

UNT Dallas - UNT had 10 of 25 of its students pass the February 18 Texas bar (40%), followed by 52 of 85 on the July bar – 61.18%. The combined pass rate for 2018: 62 of 107, was an uninspiring 58%.  According to fact sheets published by UNT Dallas, the LSAT profile for the 2015 entering class was 149/146/143 3.40/3.11/2.67 for the full-time division and 150/145/142  3.36/3.03/2.64 for the part-time division.  This was even lower than the woeful credentials of their inaugural entering class in 2014. After nearly not getting provisional approval from the ABA in part because of valid concerns over admitted student credentials, UNT-Dallas has significantly tightened admissions standards. Their admitted student profile for the Fall 2018 class is 153/150/148 with a 3.32/3.08/2.68.  Expect UNT Dallas to see a steady rise in bar passage rates over the next three years.

Barry Law School and Florida A&M Law School – July 2018 results at Barry: 55/121 (45.5%) In February 2018, Barry had 16 of 39 first-time takers pass for a 41.0% rate. Overall for the year, Barry is at 71/160 (44.4%) in Florida.  Similarly, Florida A&M was 11 for 30 ( 36.7%) on the Feb 18 Bar, and 39/77 (50.6%) on the July Bar, for a 2018 total of 50/107 (46.7%) in Florida.  Barry and FAMU had very similarly weak entering classes in 2015: 150/146/144  3/29/296/2.64 for Barry and 149/146/144  3.29/3.00/2.72 for FAMU. 

These five examples demonstrate (once again) that when law schools admit high percentages of very high and extremely high risk students, these classes are virtually certain to have very low bar passage rates.  Put another way, no law school has figured out a magic formula to take students with very limited aptitude for the study of law, as demonstrated by their LSAT scores and college grades, and turn them into bar passers.   All the law schools that have closed in the last couple of years (or are in the process of or in peril of closing), including Whittier, Indiana Tech, Charlotte, Arizona Summit, Valparaiso and Thomas Jefferson, amply demonstrate this point.  Although the overall decline in demand for legal education played some role in the downfall of these schools, it was their decision to lower admission standards to an unethically low level that started the vicious cycle of dropping bar pass rates, declining reputation, decreasing applications and increasing transfers that ultimately doomed them.

MTSU College of Law?

In a press release I first saw last night on Paul Caron's TaxProf Blog, Valparaiso University's Board of Directors and Middle Tennessee State University's Board of Trustees have announced an agreement to transfer Valparaiso's law school to MTSU.

The transfer agreement, however, still needs the approval of the ABA and the Tennessee Higher Education Commission before it can go into effect. 

Here is a Nashville Public Radio Story on the move:

"The Middle Tennessee State University board unanimously approved plans Wednesday to transfer Indiana-based Valparaiso University’s law school to its Murfreesboro campus. The school’s leadership says the move makes sense for its mission and the region’s needs.

But before the transfer can officially occur, MTSU has to convince the state the law school is actually necessary. It’s now moving forward to the Tennessee Higher Education Commission and Valparaiso’s accreditor, the American Bar Association, for final review.

They will determine whether the school is necessary in Middle Tennessee, given that three other law schools already exist in the region. But, those schools are all private, says MTSU Provost Mark Brynes, and the region needs a public law school option."

The aftermath of Len Kachinsky’s defense representation

Across several prior posts, I have outlined how the 2007 conviction of Brendan Dassey for the murder of Teresa Halbach—part of the largest criminal investigation in Wisconsin’s history—can enhance the investigative criminal procedure classroom for law students and law professors alike. I have argued there is much for law students (and even lawyers) to learn from law enforcement’s numerous interrogations of Dassey alongside the pretrial defense representation he received. On that latter topic, I have focused on Len Kachinsky’s representation of Dassey during a five month period from March through August of 2006.

During that period, Kachinsky hired a defense investigator who would end up also interrogating Dassey in an effort to elicit a further confession from him in order to aid law enforcement. Kachinksy would also waive Dassey’s (extremely viable) Miranda arguments during a hearing on Kachinksy’s motion to suppress. And, to top the representation off, Kachinsky invited law enforcement to interrogate Dassey without representation prior to trial.

That remarkable behavior is constitutional pursuant to the Supreme Court’s 1984 decision in Strickland v. Washington, which sets an extremely low bar for attorney performance under the Sixth Amendment. Strickland poses two distinct problems: (1) the low standard itself, and (2) lower courts’ interpretation of that standard to further lower the bar sets. In my last post, I explored that first problem—the standard—and today I’ll explore how the lower courts interpreted Strickland to reject his claim that Kachinksy provided unconstitutional representation. Both problems point in the same direction, which is for law schools to demand more from students. At the end of this post, I’ll offer one concrete suggestion for how schools might do exactly that.

How the Legal Academy Has Changed Since the Great Recession (Hint-It's Probably a Lot More Than You Think)

I’ve had the privilege over the last year of working with two exceptionally skilled and thoughtful empirical investigators—Jerry Organ of the University of St. Thomas School of Law; and Emma Rasiel, Associate Chair of the Duke University Department of Economics.  The question that brought us together, which began with a conversation Jerry Organ and I struck up when we found ourselves stranded in New York by the blizzard at the end of the 2014 AALS conference, is whether we could develop reasonably rigorous but accessible ways of describing quantitatively how the American legal academy had changed in recent years in reaction to the circumstances changing around it.

As our work unfolded, the task became twofold:  First to depict how the academy had changed; and then to see if we could find any patterns in the changes (whether or not consciously strategic) among law schools with shared characteristics.  The result is our new paper Competitive Coping Strategies in the American Legal Academy: An Empirical Study.  It will be published by the good folks at the Nevada Law Journal early next year, and a draft is now posted on SSRN here.  We think that many interested spectators will find some of the paper’s observations surprising. 

We start with a description of how—and importantly, how much—the legal academy has changed.  Most readers of this space and other legal education enthusiasts are aware of the contraction in the new-graduate job market that began after 2007, and the substantial decline in both the number and the conventional qualifications of applicants to law school that began after 2010.  But you may not appreciate how widespread and serious its effects have been.  For the vast majority of American law schools, those effects have been somewhere between significant and devastating.

From 2010-11 through 2016-17, the number of unique applicants to accredited law schools fell 36%, and the number of applications fell a little less than 44%.  The conventional metrics by which most admissions decisions are made—Law School Admissions Test (“LSAT”) scores and undergraduate grade-point average (“UGPA”)—declined even more, as more highly credentialed applicants disproportionately stayed away.  For example, while the number of applicants overall fell 36%, the number of applicants with LSAT scores greater than 160 (roughly the 80^th percentile of all test-takers) fell 46%, while those with scores under 150 (roughly the 44^th percentile) fell only 27%.  All this has been widely discussed.

But the effects on the academy have been profound, and far more widespread than many realize.  By 2016-17, the average accredited American law school had an entering class that was nearly one-third smaller and had a median LSAT score seven percentiles lower than in 2010-11.  And while Base Tuition (a school’s published “sticker price”) had risen 15% on average over that period, the average tuition discount per student had doubled, causing the average net tuition paid per student to fall over 6% in constant dollars. 

Unsurprisingly, these effects were not distributed evenly across the academy.  Instead, sectors of the academy distinguished by their relative overall reputation for quality were affected quite differently.  Yes, a small handful of super-elite law schools were essentially unaffected, but that handful is smaller than you may think.  A number of top-20 law schools had to substantially increase their tuition discounting in order to maintain their entering-class LSAT scores.  More generally, the entering classes of the top-third strongest schools reputationally shrank on average only 13% and dropped 3 LSAT percentiles, while the reputationally weaker two-thirds on average shrank by over a third and nearly a half respectively, while dropping 14-15 LSAT percentiles.  Effects on tuition revenue were also pronounced.  Even top-third schools reputationally lost an average of $5.9 million per school in annual tuition revenue comparing 2016-17 with 2010-11, while reputationally weaker schools lost on average $11 million to $12 million annually each (in constant 2018 dollars).  We estimate that aggregate annual tuition revenue for all accredited American law schools fell over $1.5 billion in current dollars between its inflation-adjusted peak in 2011-12 and 2016-17. 

We offer a chart with details on the changes by reputational group and further discussion of what's happened in the last ten years after the jump.

Len Kachinsky & the fallible Strickland standard

In a series of prior posts, I explored the various interrogations of Brendan Dassey in 2005 and 2006. Then sixteen, Dassey was interrogated numerous times across a several-month span about his involvement in the murder of photographer Teresa Halbach. One of the interrogations, which took place on March 1, 2006, was the centerpiece of the state’s case. His March 1 statements—including that Dassey cut Halbach’s throat—were featured in the Making a Murderer series and were the focus of Dassey’s recently denied petition for a writ of certiorari to the Supreme Court.

Dassey’s confession aside, I began more recently to explore the concerning pretrial representation Dassey received from his appointed lawyer, Len Kachinksy. During a five-month span representing Dassey from March to August of 2006, Kachinsky waived critical issues, spoke to the media more than he spoke to his client, and hired an investigator to interrogate his own client—among other blunders. Kachinsky’s performance is enough to elicit any number of emotions, ranging from general disappointment to downright anger. Indeed, Kachinsky himself received that full range of responses to his behavior via nasty letters, angry phone calls, and even death threats.

The public outcry condemning Kachinsky’s representation of Dassey hides a powerful and unfortunate reality: Kachinsky’s representation was constitutionally adequate pursuant to Strickland v. Washington, the Sixth Amendment’s measuring stick for attorney performance. As teachers, we often assume that satisfying a constitutional standard is equivalent to competence. But that’s simply not true in the “effective assistance” arena. The constitutional standard is well below an acceptable minimum level of attorney competence.   

Short of calls to revise or overrule Strickland, which for decades have gone unanswered, the question shifts to whether there is another way to address Strickland’s low bar. The answer is yes and law schools are particularly well situated to raise expectations for the defense bar. At present, Strickland is not sufficiently representative of what the profession—in practice—demands of professional well-regarded criminal defense attorneys.  Law schools must develop curriculum that is not tightly calibrated to Stickland but, rather, reflects true standards of acceptable competence for defense attorneys.   

Law Professor Twitter Census 2018-2019 Edition: Call for Entries

Update 8/15/18: As of August 15, 2018 at 12:00 p.m. Eastern, the 2018-2019 ist is now closed. Anyone who wishes to add or make corrections to the list prior to the next edition, please contact bcrawford (at) law dot pace dot edu. The finalized 2018-2019 list will be published here at the Lounge this week.

It’s been more than three years since the last Law Prof Twitter Census here at the Lounge. My anecdotal impression is that the number of Twitter users continues to increase. (For prior surveys, see Version 1.0 here (2012), Version 2.0 here (2012) and Version 3.0 here (2015)).

As with prior versions, the list is meant to cover individual law professor tweeters only (not accounts of groups, programs, blogs, law schools, print publications, students, practitioners, staff).  Folks should be full-time law school faculty members (not, say, law-trained profs working in business schools).  Non-U.S. law profs very, very welcome.

For this version, I’m trying a new approach for gathering the data.  I’ve created a downloadable, sortable spreadsheet that can be edited directly by accessing this link. If you’d like to add your name, or if you would like to add to or modify your existing listing in census, the census calls for:

(a) Your name

(b) Your Twitter handle

(c) Your school affiliation

(d) Up to three subject-matter areas of interest that related to your teaching, scholarship or tweeting (note that the addition of subject-matter interests is new for this edition, so even if you're already included in the census, you may want to add areas of interest).

You can view the current list embedded below, too:

New entries and modifications due August 15, 2018 at 12:00 p.m. Eastern.  All additions and edits to the list subject to the moderator’s approval. Please do not edit anyone’s information other than your own.  If you see errors or corrections that need to be made to a colleague’s entry, feel free to contact that colleague directly and ask the colleague to make the changes.

If the open-edit feature is abused, we’ll go back to the old system of requiring those who would like to be listed to provide their info in the comments to this blog post or to contact me directly: bcrawford (at) law dot pace dot edu.  If anyone has any questions about eligibility for listing in the census or any other topic, please also feel free to email me directly. In the meantime, we'll give this data-collection method a try.

No comments approved without a full name and valid email address.

7/30/18: Friendly reminder: please do not change anyone's entry other than your own. Someone seems to have changed the school affiliations of 200+ profs. I will try to fix it the best I can, but if problems persist, the spreadsheet will be made view-only.

The other explanation for Brendan Dassey’s conviction

In a series of seven prior posts, I explored the primary reason—aggressive use (and misuse) of interrogation methods—for the 2007 murder conviction of Wisconsin teen Brendan Dassey. Dassey, now (in)famous for his role in the Netflix documentary, Making a Murderer, was interrogated several times during law enforcement’s investigation into the murder of photographer Teresa Halbach. One of the interrogations, which took place on March 1, 2006, was the centerpiece of the state’s ca

His March 1 statements—including that Dassey cut Halbach’s throat—were featured in the Making a Murderer series and were the focus of Dassey’s recently denied petition for a writ of certiorari to the Supreme Court. Given the absence of physical evidence tying Dassey to the killing, many scholars, myself included, think Dassey’s confession was false.

That Dassey’s confession was the primary reason for his conviction is uncontested. But there is one other major reason for Dassey’s conviction: bad lawyering. In this post, we consider the representation provided by Len Kachinsky during five months of representing Dassey—from March 2006 until his removal from the case later that August. Speaking from my own experience, Kachinsky’s decision-making is a powerful teaching illustration for what not to do as a criminal defense lawyer. I have found that exploring Kachinsky’s mistakes with students is a very productive way to help them see how criminal procedure is actually practiced alongside how criminal procedure protections depend almost entirely on strategic thinking by lawyers.

Reigniting the need for Dassey in the classroom

Brendan Dassey’s court case came to an abrupt halt last week when, on June 25, 2018, the Supreme Court denied his petition for a writ of certiorari. The petition sought review of Dassey’s March 1, 2006, confession to law enforcement wherein he admitted to participating in raping and killing photographer Teresa Halbach. More specifically, the petition asked the Court to evaluate whether Dassey’s incriminating statements were voluntary pursuant to the due process clause.

The March 1 interrogation’s fame beyond legal circles arose from the Netflix documentary, Making a Murderer, which episode 3 focused on. I consider that interrogation in this post. In doing so, I argue that it makes for compelling criminal procedure teaching material in four main areas outside the voluntariness doctrine: Miranda custody, Miranda waiver, interrogation techniques, and the legal import of sequential interrogations. With Dassey’s petition denied, using Dassey’s case as a teaching tool seems all the more important. After all, forthcoming Supreme Court guidance seems unlikely given that the Court has not heard a juvenile interrogation case since Fare v. Michael C., decided in 1979.

Reid & sequential interrogations

The Supreme Court has yet to decide whether it will review the voluntariness of Brendan Dassey’s March 1, 2006, confession to raping and killing photographer Teresa Halbach. It will do so today. Numerous interrogation-related issues of first impression arose in Dassey’s case, largely in the context of Miranda custody, Miranda waiver and use of the Reid interrogation technique on juvenile offenders. But sadly, none of those issues were available for presentation to the Supreme Court because trial counsel for Dassey waived them. All that was left for appellate counsel before the Supreme Court was the question of whether his March 1, 2006, confession was voluntary for purposes of the due process clause. Dassey’s petition for Supreme Court review would have been much stronger if these issues were available for inclusion. Unlike the uniqueness of his Miranda-related issues, the Court has considered innumerable voluntariness issues dating back to Hopt v. Utah in 1884.

Today, we consider another set of unpreserved issues, largely focused on Miranda custody and waiver, which arose on Feb. 27, 2006, when law enforcement interrogated Dassey for the third time and the second time that day. The second Feb. 27 interrogation went unexplored by the Netflix documentary series Making a Murderer and untested by his trial counsel. Had Dassey’s then lawyer had a firm understanding of the Reid interrogation technique, then perhaps he would have had a fuller range of preserved Miranda-related arguments to present in his Supreme Court petition.

Reid & Brendan Dassey’s Lost Defense

Brendan Dassey is down to his last strike. Having filed his petition for a writ of certiorari before the U.S. Supreme Court, his case is over if the Court declines to grant cert. The petition argues that Dassey’s March 1, 2006, confession was involuntary. Using that confession against him at trial, the petition argues, violated the Fourteenth Amendment’s due process clause. Dassey’s petition has appropriately generated considerable media coverage (here and here for example) alongside scholarly commentary (here and here for instance).

But the value of Dassey’s case for educational purposes involves much more than the voluntariness issue.  That issue has taken prominence only because it is an issue preserved for appeal.  But Dassey’s case presents other perhaps more fruitful grounds for challenging his conviction that were not preserved by earlier lawyers.  Most critically, Dassey’s early lawyer failed to preserve critical Miranda-based arguments related to custody.

One of those unpreserved issues arose on Feb. 27, 2006, when law enforcement interrogated Dassey for the second time. The interrogation, which the Making a Murderer Netflix documentary series did not feature or mention, offers another example of how an attorney’s knowledge of the Reid interrogation technique can better inform Miranda-related arguments. Investigators would interrogate Dassey three times that day. Today, in this fifth post, I’ll consider what took place in the first of those interrogations and how it could have supported an important Miranda-based defense that a defense attorney with an understanding of Reid could have raised.

The ABA, Cooley and Standard 501 – The Rest of the Story

The ABA’s March decision to find WMU Thomas Cooley School of Law back in compliance with Standard 501(b) was puzzling, given the fact that Cooley has been America’s least selective law school for the last three years.  In 2017, virtually the entire entering class at Cooley was comprised of very high and extremely high risk students, with LSATs of 146/142/139 at the 75^th, 50^thand 25^th percentiles, respectively.  The public notice claimed that “the further report [from Cooley's Dean] and concrete steps taken by the Law School with respect to its admission policy and practices demonstrated the Law School’s compliance” but the ABA did not explain what was in the report or what steps had been taken to warrant reversing their earlier decision.  Given that the ABA was vigorously defending the earlier decision in federal court, it seemed reasonable to assume that Cooley must have made some very significant changes to their admissions policies.

A further suggestion that Cooley had made major changes came from Barry Currier, Managing Director, Accreditation and Legal Education.  In response to an inquiry from Dean Paul Caron of Pepperdine Law School about the Cooley decision, Mr. Currier stated: 

The ABA law school accreditation process includes opportunities for schools to address matters of non-compliance determined by the Accreditation Committee and the Council. When that occurs, and the committee or the council conclude that the steps taken by a school have addressed the concerns that led to the finding of non-compliance, then the appropriate action is to find that the school has returned to good standing on those issues.

Thanks to a document filed on May 25, 2018 as an exhibit in the ongoing lawsuit between Cooley and the ABA, we now know two things: first, we know what concrete steps Cooley has promised to take with respect to their admissions policies and practices, and second, we know that these changes were not significant and did not adequately address the concerns of the ABA.  The document in question is the private letter sent on April 18, 2018 from the ABA to Cooley explaining the public decision of the Accreditation Committee.  And although the letter answers some questions about the ABA’s decision, it raises far more questions than it answers.

Admissions, Accreditation and the ABA: An Analysis of Recent Law School Lawsuits

Recently, the ABA has been sued by Western Michigan University Thomas Cooley School of Law, and two InfiLaw schools: Florida Coastal School of Law and the defunct Charlotte School of Law. In addition, the ABA was named as a co-defendant along with InfiLaw and Charlotte School of Law in an amended complaint filed in a fraud lawsuit by a former Charlotte law professor and a Charlotte law student.  These lawsuits allege that the ABA has failed in its duties as a law school accrediting agency in a variety of ways.

In this (very long) article, I will attempt to make sense of the various allegations made against the ABA in these lawsuits.  In order to understand the lawsuits, it is important first to have some historical context regarding enrollment trends and the recent history of the ABA’s approach to law school accreditation, particularly with respect to its enforcement of Admissions Standard 501 of the ABA Standards and Rules of Procedure for Approval of Law Schools.

When interview becomes interrogation

In earlier posts, I argued for why both Brendan Dassey and the Reid interrogation technique belong in the criminal procedure classroom.  Most recently, I offered a handful of conclusions about how understanding the Reid method can better inform Miranda-related arguments.  In this fourth post, I will explore the relationship between Reid and one of the interrogations left unexplored by the Making a Murderer Netflix documentary series. 

As I noted in my last post, Making a Murderer focuses in episode 3 on Dassey’s March 1, 2006, interrogation, which is at the heart of Dassey’s petition for Supreme Court review.  The documentary, however, does not explore—or even mention—several other Reid interrogations of Dassey.  Dassey’s interactions with law enforcement during those interrogations were critical contributors to his March 1 “confession.”  The most notable of these are an interrogation that occurred on Nov. 6, 2005, and three interrogations that happened on Feb. 27, 2006.  Today I’ll explore what took place on Nov. 6. 

Merging the Reid Technique with Miranda in the Classroom

In prior posts, I argued for why both examples of actual cases such as Brendan Dassey and the Reid interrogation technique belong in the criminal procedure classroom.  As promised, in this third post, I will summarize the Reid technique, relay my experience becoming a Reid-certified interrogator, and preview my thoughts on the technique’s applicability to Dassey.

The Reid interrogation method is based on the Criminal Interrogations & Confessions book. The text is long.  Now in its fifth edition, the authors provide 449 pages of instruction.  Suffice it to say that a blog post is hardly the place to comprehensively review the technique.  But a few points bear mention.  The most important thing to understand is that Reid takes a two-part approach to what the Supreme Court broadly construes as a singular interrogation for Miranda purposes. 

The full scope of the Reid technique is much broader.