Wednesday, May 31, 2017

Is It Time For a Legal Research Component on the Bar Exam?

The Wall Street Journal (sub req'd) is reporting on pushback against difficult bar exams (particularly California's bar).

One camp of law-industry watchers blames the drop in passing rates on the declining credentials of incoming classes. Others point to changing study habits of so-called millennials, who grew up with the ability to find information at their fingertips and aren't accustomed to the intensive memorization and writing skills needed to pass a bar exam. 

The article ultimately asks: Does the exam even test what incoming lawyers need to know?

It seems that, based on what a lawyer actually does, the test should be about spotting legal issues, research, and proper legal analysis.
  • A law school education prepares students to spot the multitude of legal issues to
  • Explore those issues using sound (efficient and effective) legal research methods
  • To do a proper legal analysis of the various issues (or the call of the question, as it were) with cites to relevant codified law and case precedent. 
As a very basic example, if the test-taker spots a potential negligence issue, why should the test taker also have to memorize all of the elements (and sub-elements) of negligence? In practice, lawyers research the elements. 

If the test taker was taught to perform effective legal research, the test taker would know how to easily look up the elements of negligence in any database. For example, all that the test taker has to do is set the jurisdiction in Westlaw and type: what are the elements of negligence in the search bar. And the following answer is retrieved: 

“To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages.” 
Quinto v. Woodward Detroit CVS, LLC
Court of Appeals of Michigan.April 29, 2014305 Mich.App. 73850 N.W.2d 642311213
*Let's ignore, for a moment, that this might not be the "best" case to cite.

The test taker then uses cases retrieved through the legal research process to do a proper legal analysis (IRAC or CREAC). 

While this would require reconceptualizing the bar exam, it would more fully represent what a lawyer actually does in practice. It would also adjust the test to the digital age where the current crop of law students grew up with the ability to find (and USE?) information at their fingertips. 

Monday, May 15, 2017

Rombauer Method of Legal Research

Instead of getting bogged down trying to instruct on the nuts-and-bolts of each database, it is more important to emphasize a research process that works in any database.

To that end, I've always taught a version of the Rombauer Method of legal research.
  • Preliminary Analysis – developing search strings and searching secondary sources for an overview of the topic
  • Codified Law – searching constitutions, codes, court rules, and regulations
  • Binding Precedent – searching case law that the court must follow from a particular jurisdiction
  • Persuasive Precedent – searching case law that the court may follow from other jurisdictions
The beauty of this research process is that it can be geared toward any database. As long as the user can maneuver the database to find relevant secondary sources, he or she will be able to fulfill the first step of the research process and so on.

If students use this research process to keep their research strategic and organized, they should feel comfortable using any database. And it is important for students to feel comfortable while researching because they will generally only research in a way that is comfortable to them.

This was observed by Alison Head and Michael Eisenberg among undergraduate students at the University of Washington. The students showed little variation in their research strategies and defaulted to resources like Google and Wikipedia for introductory research, with little regard for efficiency or effectiveness. As Head and Eisenberg observed, the students may be aware of the range of resources needed to carry out their research effectively, but they fall back on strategies as similar and repetitive as possible.

Instead of focusing on the various platforms, we should make the students comfortable with a process that works in any database — a process that will become familiar and repetitive to the students and one that they might actually use.

Wednesday, May 10, 2017

Law School Rankings & Law Libraries

The Wall Street Journal is reporting that business schools are taking a stand against academic rankings. Business-school deans and research faculty at more than 20 universities are taking a stand against the academic rankings published by media outlets such as Bloomberg Businessweek, Nikkei Inc.’s Financial Times and the Economist Group. Rather than “acquiesce to methods of comparison we know to be fundamentally misleading,” the administrators are urging their peers at other schools to stop participating in a process they say rates programs on an overly narrow set of criteria.

Those in the business of rankings say that the rankings help students make an informed decision about what is likely among the most expensive purchases these students will make in their lives. 

The administrators opposed to the rankings methodologies are of the opinion that if the goal is to help inform [students] about how to make the best decision about business schools, let’s give them the raw information, and not take numbers—which may or may not be relevant to the student—and bungle them together into a ranked list. 

The debate over business school rankings is interesting to law schools because many of the same arguments for and against rankings in the former professional school can be made for the latter professional school. Currently, law schools are ranked by less-than-transparent methodologies, particularly by U.S. News.

After reading the full-length article, On Academic Rankings, Unacceptable Methods, and the Social Obligations of Business Schools, my astute colleague, Professor Eric Chiappinelli, noted that it was interesting to see [the authors'] emphasis on relative scores rather than absolute rank. E.g., in USN, Cornell would be touted as “81” and Texas as “75” rather than “13” and “14” as they are now. In USN-world, that shift would only highlight how bunched all the schools are, especially below the top 50 or so.

With schools being so bunched, should they really be ranked? Or should they be considered for their other qualities, such as proximity to a particular legal market or the substantial offerings from the law library, for example. Changing the rankings would be beneficial for a variety of reasons. Currently, with the intense focus on rankings, many administrative and budget decisions come down to those that will raise rankings, and law libraries are often left out.

It's a shame because law libraries provide an important function. Law libraries support the curricular needs of the law school, which helps with bar passage rates and employment. Law libraries also heavily support faculty scholarship, which helps to raise the peer-review ranking when faculty publish in top-ranked journals, etc.... These are just a couple of examples of the many supportive roles of the law library.

Yet, when administrators consider programs that directly affect rankings, law libraries are often left out of the equation. Rankings need to change. The perception of a law library's affect on rankings also needs to change.