I Love the New York Times / No Evidence (The Bar Exam Saga, Cont'd)

Thank you. For this.

Five people invited to "debate," which can be summed up as follows:

Prof. Jerry Organ, who takes the scamblogger position that lower-quality-on-paper students are coming to law school, yet explaining that it's "for reasons that are hard to document empirically."

Prof. Deborah Merritt, who repeats the idea that the ExamSoft glitch contributed to low scores last year and adds on the idea that the the new subject of civil procedure was just too much for the little bastards to handle. The NCBE can't be trusted and that the ABA should create another Task Force.

Next up is a new face, Prof. Linda Sheryl Greene of Wisconsin.  After writing that law schools must better prepare the slower buffalo to run with the herd, we get this well-worn trope:

It is imperative, however, that law schools not overreact to the bar exam decline by limiting access to legal education. Instead, let’s keep the door open and provide the support students need to succeed in law school and at the bar, as well as to serve the public in and outside of the legal profession.

Is "serv[ing] the public...outside of the legal profession" like serving margaritas during happy hour?  Oh, keep those doors open!

Next up we get a briefer missive from BigLaw Recruiter Diane Downs (Harvard JD who spent time in legal academia), who, without any empirical proof, heaps high praise on the commitment, drive, and skill of the product her firm sells to its prestige-addicted clients at ridiculous and unjustifiable premiums to cover the overhead necessary to have a Chief Recruiting Officer.  Also, she delivers the best. line. ever.

They are exceedingly talented – whatever their scores were on the bar exam.

Fuck me, these people are almost impervious to parody.

Finally, we have the Big Thunder. Dean Nick Allard, who, without any apparent irony, writes things like this:

Why should our most ready-to-practice graduates, who will pass the bar anyway, spend the time, effort and money ($50,000 to $100,000 or more in lost wages and bar prep courses) on an outdated, unnecessary rite of passage...

And this:

For too long the unregulated monopoly of the testing industry has masqueraded as the self-appointed guardian of professional standards.

And this:

It is time for the A.B.A., courts and law schools to take back control of the future of the profession...

Allard is no dummy. He knows full well that some jackass could apply these quotes straight-up to an expensive three years of law school in general. That he writes this shit anyway shows he's a hardcore badass who has not one fuck to give.

Of course, the question to all five of these people was a simple one:  Is the bar too low to get into law school?  That none of the five people - three of whom are regulars in this general non-debate - directly answered the question is a thing of legal profession beauty

The answer, of course, is clearly "NO."  We can go way, way, way lower.  And when we get there, we'll be reading the same motherfucking arguments from the same or similar industry lackeys in the New York Times, and it's so fucking beautiful.

Next year, NYT, could you perhaps invite The Notorious BDG (who appears to be Prof. Brian David Galle):

It could be true that scores were lower because the test-takers were not as able, but then I could also be a Martian or a Soviet spy.  There's really no evidence of any of those.

There's also no evidence that the law professorate pontificating on this subject is a group of biased, propagandizing intellectual lightweights who very well know better but are choosing to shove their fingers in their ears and scream "IT'S NOT THE STUDENTS WE'RE ADMITTING" while they find unpersuasive red herrings because it just has to be something else.  No evidence at all that they're walking, breathing examples of stupidity, cognitive dissonance, and/or willful misrepresentation.  No evidence that this entire thing is a tacit, collective scheme to get state supreme courts to remove or lessen the importance of the MBE and/or NCBE and move to the Wisconsin model so that law schools can pump their graduates into the state bar without this embarrassing little hurdle that's somehow never been a problem before dealing with the grisly aftermath of a burst education bubble that was blown up by systemic fraud.  No evidence that the poor analytical abilities and twenty hour work weeks of the people teaching law school courses contributes to the underdevelopment of lower-quality talent.  No evidence that by making the argument that adding civil procedure is a major variable in determining bar passage rates, these professors are basically admitting that eight weeks of bar preparation developed from consistent past tests may better prepare students than the entire wasted semester or two of civil procedure that they took in law school.  No evidence that law schools would in fact admit a Martian or a student convicted of being a Soviet Spy if they could bring a promissory note and a 147 because the schools are so desperate for warm bodies they've become the post-graduate equivalent of a lonely guy who buys his back-alley hooker pussy with HIV medication.

No evidence.

More on the Case of the Befuddling Bar Exam

To continue with last week's popular "blame...something else" post, I give you this article from Montana of all places:

Instead, [Montana Dean Kirgis] points to changes in the exam itself.

As of 2014, Montana law graduates are required to pass a new test called the Universal Bar Exam. [Law...on Mars!]  Created by the National Conference of Bar Examiners and recommended by the State Bar of Montana, the Montana Supreme Court adopted the exam in 2012. At the same time, they increased the score needed to pass by 10 points.

The new exam is different because it has more multiple-choice questions and doesn't have any material specific to Montana law, Kirgis said.

"This is an extremely controversial subject nationally," he said. "The law schools are very unhappy about these results. The National Conference of Bar Examiners have rejected calls to reveal their testing methodology. They have said publicly they have double-checked their exam, and this is all because the students aren't as good. To us, it looks like our students are comparable to students in the past."

Of course they look comparable, with their succulent flesh and ability to sign a master promissory note.

One must appreciate Kirgis raising the "it's a different test!" argument in addition to making the vague "NCBE is hiding the ball!" argument. It's not like Montana is the first state to have ever adopted the UBE. Idaho, Wyoming, and North Dakota all adopted it prior to Montana and one would think a law dean and/or news outlet could check some records to see how the switch affected bar exam results in comparable states.

Consider Idaho, which has a higher bar for UBE passage:

February 2010: 69.6%
July 2010: 80.5%
February 2011: 73.4%
July 2011:  80.5%
February 2012: 78.2% [first admission of UBE]
July 2012: 80.3%
February 2013: 75.3%
July 2013: 80.3%
February 2014:  73.4%
July 2014: 65.1%
February 2015:  72.1%

Obviously, the UBE is such an insidiously complicated test that it can have up to a five cycle delay before the dreadful effects are felt.

Of course, as your source for law school propaganda that truly goes above and beyond, I have bribed an unnamed bar exam authority for access to bar examination questions, past and present, and it confirms my suspicions that the new bar exam is significantly more difficult than the old one.

OLD BAR EXAM QUESTION SAMPLE:


O grants Blackacre "to A for life and then to B." What is B's interest?

A. Contingent Remainder
B. Vested Remainder
C. Life Estate
D. A Bucket of Plum Sauce

NEW BAR EXAM QUESTION SAMPLE:

In Ulysses, Joyce, through Stephen Dedalus, states that "Every life is in many days, day after day. We walk through ourselves, meeting robbers, ghosts, giants, old men, young men, wives, widows, brothers-in-love. But always meeting ourselves." As you ponder what they means for justice and providing legal services to the poor and needy at no cost, is your client guilty of second-degree manslaughter?

A. Yes
B. No
C. "It depends"
D. Joyce was almost as overrated as Samuel Beckett and I would much prefer Proust or Nabokov on future bar examinations, which I certainly will be taking after this inscrutable nightmare.

Clearly, the new bar exam presents broader challenges for law students, and it should be no surprise that the same student quality is struggling a bit in gaming those beautiful 90% pass rates.

Of course, all of this reinforces my previous idea that we should require a fourth year of law school in order to compensate for the NCBE's treachery in foisting this cowardly new world upon us.

Also, we should audit the NCBE.

And maybe give a standardized allotment of points to account for the inevitable annual ExamSoft clusterfucks, as well as to compensate for past ones causing forward trauma.

Oh - and we should give adjustments to students' scores based on variances in the weather and/or student dieting habits, as medical SCIENCE proves that those factors can affect standardized test outcomes.

Also, some students just test poorly. While that's a constant over time, we should figure out who they are and just give them a passing score for persevering through life with a disabling non-disability.

And also, we should just pass students who have historical metrics (like a 3.5+ gpa) that would equal bar exam passage. Wisconsin has the right idea with just opening the gates to in-state students; they should try it in Florida and Michigan and New York, or something...

Really, do we even need a bar exam?  The more these results drop and serious scrutiny is placed on law schools' admission habits, I start to think the answer is "no."

It may seem paradoxical to get rid of regulation while the regulation is clearly working to prevent the abuse it was intended to prevent, but, uh, it's...like...bad, and it's making law schools very unhappy.

The Nefarious Bar Exam Conspiracy Continues

From Bloomberg:

Performance on the bar exam has continued to slip, early results show.

The average score on the multiple-choice portion of the July test fell 1.6 points from the previous year, reaching its lowest level since 1988, according to data provided to Bloomberg by the National Conference of Bar Examiners.

And so it continues that our current law graduates - who are all clearly intelligent and hard-working - are not doing as well on the bar examination.

It's incredibly easy to continue blaming this on the student quality. Indeed, such a conclusion would be warranted by every existing piece of evidence such that it could probably withstand the scrutiny of proof beyond a reasonable doubt. And sure enough, Erica Moser, being all rational and shit, is quick to play that card:

"It was not unexpected," says Erica Moeser, the president of the NCBE, which creates the multiple choice part of the test. "We are in a period where we can expect to see some decline, until the market for going to law school improves."

One explanation of science-based thinking is coming up with a theory based on past observations and then seeing a predictable outcome result. Moser, whose office employs real psychometricians, is likely approaching the situation with that mindset.

But that's pernicious bullshit. Sure, you can have your simpleton scientific cause-and-effect explanations that make so much sense I can't believe I'm parodying the inevitable boo-hoo response that will come from the legal academy.

As lawyers, we know better. We know that there are things called conspiracies and if this isn't a giant big conspiracy designed to deprive worthy lawyers of their licenses, I'll eat my hat while having relations with a Victoria's Secret model.

Sure, law schools could be admitting less-able students.

But I'd personally rather believe that the NCBE has developed a multiyear conspiracy to deprive Americans access to justice in order to milk additional bar examination fees. I demand a full-scale audit of the last twenty administrators of the MBE so I can have a paid expert denounce the process.  Our law students are working too hard to have to wait an additional six months to practice due to our failure to educate them to the extent desired by the NCBE's conspirators.

But more importantly, we need to realize that the evil, greedy conspirators, working for a private entity with no transparency, are not likely to change. We're stuck with these assholes serving as the douchebag doormen at the premium club who never lets you in. Knowing that reality, what can we possibly do to exploit students further while passing it off as a necessary change for their own good in the face of troubling circumstances?

I say bar exam coursework for eight weeks just isn't enough.

We need to add a fourth year of law school.

I know, I know - that means we'll have to hire more faculty and that law schools will be bigger. But clearly, three years isn't enough to properly teach and train the current crop of law students. Three years is barely sufficient.

Adding a fourth year of law school that is nothing but bar examination preparation just might be what is needed to get these 148 LSATs over the top. It will be a setback for law schools to try and service an extra, expensive year of law school, but it will no doubt be worth it to better serve law students when we have such conniving bad faith scientists running the nation's bar exam programs.

You gotta do what ya gotta do.

If It's Broke, Leave It As-Is

As you may recall, recently I featured Milan Markovic and Jeremy Paul's letters to the New York Times in response to Steven Harper's recent Op-Ed. Well, grab some popcorn, 'cause this motherfucker escalated to the internet intermediate appellate level...

Harper responded with a lengthy blog post on September 9. As any good BigLaw litigator would do, he misdirected the matter at hand to an irrelevant rhetorical question that guarantees his side's victory:

Would Professor Markovic and Dean Paul — among many others who similarly ignore the crisis in legal education — counsel their own children to attend a marginal law school that, upon graduation, assured them of six-figure debt but offered only dismal JD-required employment prospects?

Well, the answer is, of course, "No!" But it's not for the reason Harper wants you to believe. See, Professors like Markovic and Paul are such prodigious intellects that any offspring of theirs would truly be a remarkable genius and score a 187+ (with bonus points) on the LSAT. At that level of accomplishment, those students are looking at getting full rides to law schools like Princeton and Johns Hopkins. The idea of the marginal law school or six figure debt simply doesn't exist for them. That said, if there was some sort of selective nuclear holocaust and somehow one hundred law schools ceased to exist, then surely they might countenance a Northeastern or Texas A&M.

Currently, those "other" law schools - the ones employing Markovic and Paul - don't exist to educate the offspring of the wine tasting gentry. They exist to give an education to those 150 LSATs of modest means striving for the slightly-upper-middle-class.

Markovic, of course, knows better than to fall for the litigator's cheap trick. At TaxProf, he responded to Harper and artfully dodged the question entirely:

Even the most strident law school critics acknowledge that 2018 graduates will be in a much better position because of the steep decline in law school enrollment.
...
Harper’s response does reveal two things, however: His disregard for employment opportunities outside of BigLaw and willingness to conduct a grand national experiment in student loan reform that will likely leave law students more indebted while transferring profits from the treasury to private lenders. 

Markovic's response is enlightening. For one, the man is so amazing he not only can see the employment landscape three years from now, but he can also read the minds of "the most strident law school critics."

You might think, for example, that someone who writes a satirical blog to legal education might be among the "most strident law school critics" and you might presume that such a person would say "fuck no, I would never say or acknowledge that!" But Markovic will gladly play with straw men. Likewise, he adds that Harper "disregards" jobs that Harper expressly includes in his analysis. Surely, Markovic's telekinetic abilities show the sort of keen insight one receives with a T-14 + BigLaw career path...not that such a path matters because Texas A&M grads are going to rock it even if they're practicing law in a strip club bathroom.

But my favorite response is Markovic's claim that student loan reform would be a "grand national experiment." Sure, we used to rely on private student lending. Sure, the government-backed student lending system is fraught with major problems that benefit no one except higher education institutions. Sure, this is an acknowledged crisis on a national scale that only exists because some hippies decided to embark on an even more dangerous grand national experiment a few decades back.

But do we really want to try a "grand national experiment" to solve it?

I say if it's broke, leave it as it is and see if the problem corrects itself on its own. Now that legal academics know that there is a problem with law school financing - I mean, ,they commissioned multiple TASK FORCES for fuck's sake - surely we'll see some meaningful reform by private actors.

And let's not forget the numerous national crises that easily solved themselves without anyone doing anything. What makes Harper's suggestion so utterly reckless is that, in this case, the crisis was exacerbated greatly by governmental intervention. Now, as a solution they want the government to withdraw?

Whoa, Dr. Moreau, let's slow down. The American educational landscape isn't your personal playground sandbox for building phallic towers and bucket-shaped fortifications. It's the personal playground sandbox where professors can educate tomorrow's leaders at ridiculous, predatory prices.

A Playbook for Scoundrelling from California's Less-Accredited Schools

In an astute comment on the last post, PresTTTige (likely not a real name) noted that the unmet legal needs line of argumentation is the last refuge of scoundrel law school administrators, alluding to a quip by Samuel Johnson, a quirky man who spent nine years working on a dictionary only to have its legacy bested by the hipster fascists at Oxford and Mr. Merriam-Webster.

Unfortunately, PresTTTige's comment is slightly off the mark.  Law deans are so excellent, with such a wide battlefield of scoundrelling, that they get multiple last refuges. It's not a single last refuge, in fact, so much as a Wolf's Lair-like compound of related refuges from which the generalissimos can move deftly back and forth.

Consider this article about Southern California Institute of Law's ongoing battle with accreditation authorities over bar passage rules.

We, of course, have the classic unmet legal needs approach (not only does one need to move to Nebraska, one should maybe stop trying to work solely for Samsung, Boeing, and JP Morgan):

"We're in the business of producing qualified, competent mechanics who can day in and day out assess the basic needs of clients and find a cost-effective way to solve their problems, not work for the rare, sophisticated corporate client," said Mitchel Winick, the president and dean of Monterey College of Law, which also has a campus in San Luis Obispo. [How Cool[eyish]]

But aside from this astounding observation, we have its cousin, the "won't-someone-think-of-the-children loan mules students" approach, paired nicely with the "save the poor immigrants," "we teach our students good even though there's no objective evidence", and "let's snidely compare ourselves to one of the most successful capitalist enterprises in human history like it's a good point" approaches:

"It is our responsibility to help those who are new arrivals, who are new immigrants, who come from lower socioeconomic backgrounds," [SCIL Dean] Pulle said. "Is the only way these students are going to pass is to give them a McDonald's education or is it to challenge them to think for themselves?"

And then, for the non-ABA school, there's the "we're actually better than used car salesmen" approach:

"[The cost of the education] is doable for a lot people and it won't depreciate as soon as you walk off the lot," he said. "They will still have to push [financially], but it is what it is."

And finally - my personal favorite - the "inalienable right to fail and not be haunted" approach:

"As individuals, we have the right to pursue our dreams. Even if we cannot always attain them, there is much to be gained from trying, including the realization that something we had long hoped for is perhaps beyond our reach," the lawsuit said. "To never have tried may haunt a person for the rest of their life."

Put that in your Constitution and smoke it, 9th Circuit.

When the Dollar Sign Flashes in the Night Sky...

You know how Batman has that giant light that flashes in the night when he's needed? You know, the one that must cost a fortune to power and trigger warnings about someone growing weed on the rooftop from the electric company?

Law professors have the same thing. Every time a malcontent airs nonsense in a too-public forum, the light flashes, and away they scurry to their keyboards like masked avengers in the night - the types of heroes Gotham deserves AND the one's Gotham's going to get come hell or high water...with tenure.

Steven Harper, a member of the rogues gallery, the law school's version of The Riddler, wrote an editorial to the New York Times about the typical blah blah blah blah blah...

The bat signal goes up...

And our heroes drive the SocraticMobile straight into harm's way. They're armed and ready with the fully utility belt of sophisticated rhetorical weaponry, where false equivalencies are like grappling hooks and red herrings are like smoke bombs.

First up, we have Texas A&M Professor Milan Markovic. He throws the JD Advantage:

Moreover, there are some desirable jobs that law school graduates perform that do not require a law degree.

The antitrust-when-it's-convenient argument:

[C]ollective action to limit enrollment further would likely run afoul of federal antitrust laws.

The past results guaranteeing future results investment theory:

[G]raduate school loans — and particularly those allocated to law students and medical students — have historically been very profitable.

With a finishing move advocating transparency as a "constraint" on law school enrollment*:

The American Bar Association’s approach of disseminating information about employment outcomes and requiring certain bar passage rates is likely to be a far more effective constraint on law school enrollment than student loan reform.

*Please ignore that part - it won't be a constraint at all, because when prospective law students see the real statistics about JDs attracting money like flies to a pig farm, they'll be signing up for MPNs so fast by gum the printer won't be able to keep up with the racetrack queue.

Markovic's letter was obviously a WHAM! to the villainy of Harper, but not to be outdone, Northeastern's Dean and Professor Jeremy Paul sent in his own SMASH!

What, you might ask, could Markovic possibly have overlooked that all but ends the arguments of "restrictionists" and makes NYT publication worthy?  He forgot the motherfucking poor people who need lawyers!

 Steven J. Harper unfairly assesses the number of American law students based on employment statistics rather than on the more salient fact that so many Americans cannot afford legal services. 

And the coup de grace:

Perhaps instead of painting with a broad accusatory brush, Mr. Harper should offer his own solutions for expanding legal services to all. That’s the valuable mission of the many law schools he castigates so cavalierly. 

Sometimes, there's so much beauty in the world - I feel like I can't take it, like my heart is just going to cave in.

"The" valuable mission. Not "a" valuable mission.  "The."

It's truly admirable - most people, when their business is accused of exploitation in the New York Times, cower. Not our brave steelnutted soldiers.

Really, the world would be a far more efficient capitalist mojito-and-hors d'ouerves paradise if we could somehow get this dauntless law professor mindset into those running the globe's sweatshops and farmer her labor-intensive crops.

"What, you think we breed too many enslaved child laborers when we let half of them starve? Well, shit, dummy, we're trying to expand child labor serves to all, particularly the many Americans who cannot afford good child labor." 

Have a happy Labor Day, everyone...except the children in my factory; they're working overtime. Anything less would be an antitrust violation.

You Are About To Witness The Power Of Urban Collaboration

Despite having a campus that looks something like a modern-day Ministry of Truth (which is ironically not ironic), Florida Coastal is toying with the idea of moving to downtown Jacksonville.

But like a woman going to the bathroom in a party of six, she's not going alone.

[T]he law school is looking for partners who want to share space in its campus just off Baymeadows Road.

“Other law firms [ed - other?], legal interest groups or other entities with which we might share a synergy,” Dennis Stone, president of Florida Coastal School of Law, said in a phone interview with the Business Journal.

The idea would be for those groups or businesses to move with FCSL when it secures a location within the urban core, establishing what school officials are calling the “FCSL Downtown Collaborative.”

For America's Best Laws Schools, it isn't enough to build a factory making lemming sausage to feed a world starving for loads of protein-heavy justice. Oh, no. You need interdisciplinary partnerships, synergies, institutes, collaborative shopping malls, shared meal plans, and diversified zoo exhibits. The modish law school must present more than a straightforward educational mission: it must be a postgraduate supergroup, a union of unique insights like the Bloomsbury Group or the Wu-Tang Clan.

Being an independent law school, Coastal has to seek partnerships outside the traditional academic sphere. And its imagination is running on full synergy mode:

Scott DeVito, FCSL dean of students, said, “Ideal partners for this unique collaboration include legal, educational or perhaps a technology-based business looking to eventually relocate Downtown.”

When he says "educational...business," I can't help but think of preschools, charter schools, and private colleges. What a blissful synergy that could be, one-stop shopping for the legal prodigy!

So, what do you say, Jacksonville businesses doing something somewhat related to law or education or abusing the ever-living fuck out of well-intentioned federal programs or exploiting the human virtue of optimism in our young adults?

Can you feel the pulsing orgasmic synergy of sharing a space with an august institution like FCLS and then moving at the same undetermined future time to the downtown area?

I can, and it sounds like a deal that's simply too goo to be true.