As it turns out, there are a lot of better ideas out there.
Dr. Aaron Taylor is the Executive Director for the AccessLex Center for Legal Education Excellence in Washington,...
Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a...
Kathryn Rubino is a member of the editorial staff at Above the Law. She has a degree...
Election challenges continue, Krakens are released, Rick Schroder provides a critical look at America’s cash bail system, and Bill Barr has some explaining to do.
But beyond all that, a new study takes a comprehensive look at the legal licensing process and the value of the status quo bar examination regime. It may not surprise anyone that the existing system does a poor job of providing the assurances of “minimum competence” that the public and the profession need, but this study does the hard work of backing that feeling up with data and, more importantly, outlining alternative licensing programs that would do better. AccessLex funded the study, and Aaron Taylor, Executive Director of the AccessLex Center for Legal Education Excellence joins the show to talk about it.
Special thanks to our sponsors, Paper Software, and LexisNexis® InterAction®.
Building a Better Bar: The Twelve Building Blocks of Minimum Competence
Above the Law – Thinking Like A Lawyer
What Would Be Better Than the Bar Exam
Intro: Welcome to Thinking Like a Lawyer. With your hosts Elie Mystal and Joe Patrice talking about legal news and pop culture all while thinking like a lawyer. Here on Legal Talk Network.
Joe Patrice: Hello.
Kathryn Rubino: Hello.
Joe Patrice: Yeah, that’s good. Oh, you’re getting in on the intros. This is another edition of Thinking Like a Lawyer. That was Kathryn Rubino from Above the Law talking. This is Joe Patrice talking.
Kathryn Rubino: Hi.
Joe Patrice: Hi. You know I feel like sometimes that we at Above the Law need to us and Stacy, the regular editors. I view us sometimes as almost like an elite strike team of law. And so if you — if you don’t know what that’s a reference to, that is elite strike team.
Kathryn Rubino: Congratulations! You’ve –
Joe Patrice: You’ve been in Iraq. Yeah. No, the elite strike team is the official name apparently of the Trump Legal Team. That would be Rudy Giuliani, Jenna Ellis and Sidney Powell. Ops! Not so much anymore.
Kathryn Rubino: Not so fast.
Joe Patrice: Yeah, it appears as though Sidney Powell has been relieved of her duties on the Elite Strike Team.
Kathryn Rubino: So, here’s a question. What kind of batshit crazy stuff was Sidney Powell saying behind the scenes to get booted from this team?
Joe Patrice: Fun fact, it wasn’t behind the scenes. It was the stuff she was saying out loud. The legal team has a number of largely dubious legal claims that they’re currently making But Sidney had the most explosive ones. She’s the one who continually says that Hugo Chavez hacked the election from beyond the grave mind you and had computer voting machines change votes even though the computer voting machines she’s complaining about were not the machines in the jurisdictions that they say went the wrong way. Anyway, it was some stuff. But honestly, I think the real thing that put an end to her involvement with the team was that she decided to jump on the Doug Collins train and argue that Kelly Loeffler actually shouldn’t have finished second in the Georgia runoff, that it should have been Doug Collins and so she’s like going to take down Kelly Loeffler and I think that was the point when the mainstream of the republican group who was more or less humored these legal challenges said, “Wait a minute. Now she’s going to botch our chances in Georgia.”
Kathryn Rubino: I mean –
Joe Patrice: Now, I think that was the end of her run as part of the official legal team.
Kathryn Rubino: It’s a pretty decent argument that the series of largely baseless legal claims are going to botch the republican’s chances in Georgia anyway. There’s quite a bit of anger over the series of challenges and if anything is just motivating folks in Georgia more which you know, could only help the democrats.
Joe Patrice: Yeah, I guess but whatever. Nonetheless, so Elite Strike Team I guess —
Kathryn Rubino: You should come up with some like some superhero —
Joe Patrice: Oh no, this is like civil war. Oh, she’s like the —
Kathryn Rubino: So, you don’t mean the American civil war.
Joe Patrice: No, I mean like the comic book like she’s like the — she’s like the Captain America of the–
Kathryn Rubino: Does she have to be Captain America?
Joe Patrice: Yeah, because the official government side was the Iron Man side. So, she’s the rogue from that. So, I think that puts her in that role, I guess.
Kathryn Rubino: Yeah, you’re also not talking very much about the way it was portrayed in the marvel cinematic universe, right? But —
Joe Patrice: No, but — well I’m not although — it was portrayed similar enough at least on that front.
Kathryn Rubino: Because you are in fact a comic book nerd?
Joe Patrice: I don’t feel like that’s fair, but you know —
Kathryn Rubino: I don’t also think it’s a bad thing. Listen, my niece is very interested in comic books and superheroes at the moment, so I’m trying to foster this kind of thing.
Joe Patrice: Yeah, I mean you have a fairly deep knowledge of this too as much as you’re trying to pin this on me. But no, and so yeah.
Kathryn Rubino: But I think that going forward every large legal team should absolutely adopt some sort of superhero moniker, right? It’s just more fun like, you know like how you have like a serve that’s like the blank case distro instead of that it should be like, you know, Wonder Twins or Falcon Justice.
Joe Patrice: Yeah, I hear that. This is — I’d be interested to like spin out whether or not this was more like a Powerpuff Girls team or a yeah, you know.
Kathryn Rubino: But going forward, I think that they should always like every single MDL should have a code name.
Joe Patrice: Okay, okay.
Kathryn Rubino: Don’t you think?
Joe Patrice: See? I feel like that was an idea that some lawyers in the past had and then Enron happened and we learned what’s wrong with doing that. Yeah, — for those who don’t know how Enron ended, don’t worry you’ll have the opportunity anytime you test out legal technology because every data set in every e-discovery demo ever is the Enron.
But, yeah, they created team names for themselves and cute little names for their special vehicles and they were largely damning for what they were actually trying to do.
Kathryn Rubino: I don’t remember what they actually were because I’m younger than you are, but —
Joe Patrice: I mean there were a bunch. There were a lot of Star Wars-based ones, but there were a lot of like sly references to this not being necessarily a great idea and they went ahead and did that anyway, you know, but enough about that side of legal technology, more positive side legal technology.
Kathryn Rubino: Uh-oh, uh-oh. Is it coming? I think it’s coming.
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Kathryn Rubino: Good job.
Joe Patrice: Yeah, yeah. So, what else has been going on in the world?
Kathryn Rubino: Man, I can’t keep leaving two more thoughts in my head. I don’t remember what what’s been going on?
Joe Patrice: I don’t know, Kyle Rittenhouse got bailed.
Kathryn Rubino: Oh, god that was awful. No wonder I’ve forgotten it.
Joe Patrice: So, yes. So, Ricky Schroder–
Kathryn Rubino: I mean come on.
Joe Patrice: Had Silver Spoons fame also NYPD blue but I mean let’s just — let’s face it.
Kathryn Rubino: Silver Spoons.
Joe Patrice: Silver Spoons.
Kathryn Rubino: Silver Spoons.
Joe Patrice: Yeah, Ricky Schroder bailed out.
Kathryn Rubino: And then my pillow(sp) guy.
Joe Patrice: Well, yeah, that guy. Anyway, but they bailed out Kyle Rittenhouse, the Kenosha shooter, the kid who used a stimulus check, it turned out to buy his machine gun to go up and killed innocent people. So that was that but he got bailed. Now, I know people are upset about this. I have mixed feelings about it because I do think I am one of these people who doesn’t think that cash bail is a very good thing. I think that you should either — you should either decide somebody is a flight risk and has to be held in jail or you should say they should be able to go free but you should not be having these like we’re going hold them and we’ll do it by making it two million dollars because you know they’ll find a way with the help of Ricky Stratton and what was this name in the—
Kathryn Rubino: In the show? I don’t know, maybe Stratton. It doesn’t matter the point is that I see –
Joe Patrice: It absolutely does matter, Kathryn.
Kathryn Rubino: Okay, well you have on the internet. You can figure this out. You don’t have to involve me in the process. But listen, I mean I understand is was Stratton.
Joe Patrice: Ricky Stratton, yeah.
Kathryn Rubino: Of course, his name is was Ricky because he couldn’t manage to remember any other freaking name in his head — little (00:08:03) head. Anyway, the point is that, yes there are obviously problems with the cash bail system. I completely agree with you on that front but it seems to me that like the ways in which we fight against it should not be — this is not the case to make that argument, right? There are millions of cases around the country which are probably a better example of why cash bail is terrible and it’s not you know a white supremacist shooter. There you go. I don’t think that that needs to be the one that we make our we kind of plant the cash bail reform flag in.
Joe Patrice: Yeah, no I mean, again, totally. I’m just saying that when I hear people say, you know, it’s awful that he made bail, I feel like this is kind of the wrong discussion in my mind. I feel like the discussion shouldn’t be look at all these rich people gave him money to give him bail. The question is do you think that he needed to be pre-trial detained or not and the question of bail is just a question of money at that point.
Kathryn Rubino: Oh sure, but I mean I do think that it is a very powerful example of sort of the two Americas, right?
Joe Patrice: Well, yeah sure.
Kathryn Rubino: And a lot of social media are comparing Kyle Rittenhouse to Kalief Browder, you know, who was held in Rikers for years for allegedly trying to steal a backpack and when he was finally released, you know, had a ton of issues as a result of his time in Rikers because he allegedly stole a backpack like the fact that there are two Americas, the fact that that the cash bail system is not equitably rolled out is real and I think that it’s a particularly powerful example of that.
Joe Patrice: See? That’s kind of my point too is right. The two Americas exist because we put a dollar figure on whether or not you get to be released pre-trial and that’s the problem because you put a dollar figure and then rich people get to buy the way out or people who can have access to things and other folks don’t.
Which is why despite the insane ramblings of the New York Post and its ilk, the move to get rid of cash bail in New York State has been a very good thing because it takes away the question of can you buy your way out of this or can you successfully go fund me your way out of this and turns it into a, is someone an actual flight risk or not and there’s not a middle ground anymore to say, “Oh, well you’re a flight risk” —
Kathryn Rubino: Two plane(ph) go should have been able to keep you in jail indefinitely but now we’re —
Joe Patrice: Yeah, flight risk up to two million dollars like now you either are a risk or not and that doesn’t suggest that, you know, pre-trial detention isn’t going to happen then bad things come from it but it, you know, makes it a little bit more palatable, I think. Yeah, but anyway.
Kathryn Rubino: Was there anything good that happened this week at least?
Joe Patrice: Good? No. No, it’s 2020. What the hell’s wrong with you. Nothing good happened.
Kathryn Rubino: That’s accurate but deeply upsetting at the same time.
Joe Patrice: I mean, you know, we’re hearing a little bit more about some, you know, rollbacks of salary decreases, some like increased work from home staff, some more bonuses you know, economically things are getting a little bit better and it makes you wonder how have firms whether previous economic downturns have come out stronger on the other side. Well, LexisNexis interaction has released an in-depth global research report confronting the 2020 downturn lessons learned during previous economic crises. Download your free copy at interaction.com/Like a Lawyer to see tips, strategies, plans and statistics from leaders who have been through this before and how they’ve reached success again.
Kathryn Rubino: Good job.
Joe Patrice: Yeah, no I mean my favorite part of that ad read always is the word crises. I feel like that’s a –yeah. I don’t know, something like it just, you know it seems like a little upper crust for me to be saying like oh not crisis, it’s crises.
Kathryn Rubino: I think that was entirely in your head and I’m here for — I’m here for it. That was fine.
Joe Patrice: I don’t know, I feel like Ricky Stratton, the first time yeah. No. You know what? I was just trying to do but I failed to do. I was trying to find the Silver Spoons theme song to play right there but —
Kathryn Rubino: Better luck next time?
Joe Patrice: Yeah. No, it’s interesting. As a kid and now we’re just kind of going off as a kid, I remember John Houseman was in that show and I remember thinking that like “Oh, this is this is like the thing that guy does.” He had a career like before that.
Kathryn Rubino: Really?
Joe Patrice: And actually, like did real stuff but you know this is how my brain now only thinks of him as the grandpa on Silver Spoons. Yeah, well which is a show of course I saw in reruns, decades after the fact because I was clearly not old enough. We’ve watched it first run.
Kathryn Rubino: So, that’s another one mister since it’s –
Joe Patrice: Yeah, I mean the only other thing that I can think of that happened if you don’t have anything else to discuss is that William Barr, the attorney general, it turns out and recent report has dug into and found that Caterpillar, the construction company, was in the midst of a 2.3 billion dollar tax case which was being —
Kathryn Rubino: That’s weird. I haven’t heard a lot about that case against them.
Joe Patrice: Yeah, you haven’t. It was being aggressively pursued by the — it actually spans administrations but the Jeff sessions run justice department was still going forward investigating it and caterpillar’s attorney was Bill Barr as it turns out.
Kathryn Rubino: Convenient for them.
Joe Patrice: Interestingly, this case which was aggressively pursued for years, grand jury had already weighed in to say that, you know, go forward basically and Bill Barr became the attorney general and the case was dropped a week later.
Kathryn Rubino: Magic.
Joe Patrice: Magic. Yeah. It’s one of those stories that when I saw it, I thought this is the problem with the world right now because this is —
Kathryn Rubino: When everything’s on fire.
Joe Patrice: When everything’s on fire you don’t see —
Kathryn Rubino: That little trash fire over there doesn’t look that bad.
Joe Patrice: Yeah, as it was being buried underneath, Rudy Giuliani literally melting on camera. I just thought well this is a shame because this strikes me as way more serious as far as long-term faith in the justice department right —
Kathryn Rubino: Gross.
Joe Patrice: Then the Elite Strike teams joke like they’re not even like the real like they’re like the Great Lakes Avengers. They’re like not even the good kind. Yeah, which makes Sidney Powell, Squirrel Girl. I think, anyway, my point is –
Kathryn Rubino: Oh, do you know that they actually have figures like you can buy a squirrel girl like barbie? It’s not barbie but it’s like an action figure that’s like Barbie —
Joe Patrice: I did not know that; I mean fantastic character.
Kathryn Rubino: Well, it’s a good thing that my eight-year-old niece does not listen to this podcast because she might have an inkling as to what aunt cat cats got on the agenda.
Joe Patrice: A Squirrel Girl beat Dr. Doom once so —
Kathryn Rubino: That is true.
Joe Patrice: Yeah. So I mean —
Kathryn Rubino: It could happen.
Joe Patrice: Anyway. The point is a long-term this seems like a huge problem to have an attorney general who comes into office and bails out their old clients.
Kathryn Rubino: Yeah, seems awful.
Joe Patrice: And what really gets me about it is even if there was some reason why this case should go away, look Rod Rosenstein doesn’t deserve much credit for anything.
Kathryn Rubino: No.
Joe Patrice: But Rod Rosenstein like very public and Jeff Sessions too. They both very publicly got themselves in trouble by adhering at least to the bare minimum of ethical standards while running the justice department.
Kathryn Rubino: Yes. When people get criticized for doing the bare minimum –
Joe Patrice: Yeah, like it would —
Kathryn Rubino: Then of course you’re going to have some people who are who are not even going to do the bare minimum.
Joe Patrice: And that’s really the thing like it — like give those people as much plaque as they deserve for the things they did but where — there were situations where Sessions was a potential fact witness in a matter. He couldn’t do it, he made a point of that, Rosenstein took over and he felt he couldn’t do it, hands it to Mueller like that whole process was at least an attempt to transparently suggest that the justice department has some measure of independence.
Kathryn Rubino: Right.
Joe Patrice: If you are the attorney for a company that is under a 2.3 billion dollar criminal investigation when you become the attorney general, even if there’s a risk that this case is going to be dropped, you have to make a very public and showy effort to say I am not involved in this decision. It has to be like even if the FBI was going to drop it the next day, you have to put a hold on that. You have to make sure an independent person looks at it and decides like you do these things because you care about the system and none the fact that none of this happens —
Kathryn Rubino: There you go. You have to care about the system and fact that —
Joe Patrice: Yeah, the fact none of this happened is a — is really, really problematic.
Kathryn Rubino: And I mean listen, I think the damage your kind of jokingly — I think said that the damage to lawyers as a result of the Trump administration is going to take decades to overcome but it’s real. It’s not a joke.
Joe Patrice: Well, anyway, that was that was a comment I made about that press conference and that’s just the reputation of lawyers like and not about the administration. It’s just like after watching that press conference, we as a professional are going to have to spend years saying no. See, we can’t bring claims when there’s no evidence and no it’s not an answer to a question to say but we don’t want to show you our evidence, you know, normal scrutiny is not a thing but, you know obviously there’s the great strict scrutiny at podcast. I feel like –- I almost feel like our podcast is the normal scrutiny podcast like –
Kathryn Rubino: It should be a thing.
Joe Patrice: Like actual academic’s talking about the law is strict scrutiny and then we’re over here providing you your normal scrutiny podcast.
Kathryn Rubino: I like it.
Joe Patrice: Yeah, anyway. Well, I think we’re ready to bring on our guest and talk about some stuff. So earlier today we learned that the North Carolina Bar is moving to an online bar exam in February. They famously —
Kathryn Rubino: I was going to say is this — is this news?
Joe Patrice: Oh, they famously stuck with an in-person exam in July which a lot of us criticized at the time. Now, they’ve realized that it’s time to move online.
Kathryn Rubino: And only getting worse.
Joe Patrice: Yes, and so while we have a lot of problems with all that and online while better than in person also isn’t great. But a lot of what’s happened this year for those who’ve been following Above the Law or listening to the show a lot of what we’ve been talking about is how the pandemic has caused kind of a stress test on the whole concept to the bar exam and maybe there are things about how we license people in all the jurisdictions around this country that probably could be changed and be better and with that in mind, I wanted to bring in our guest because we have Aaron Taylor from AccessLex who — you all just were part of and helped sponsor a new study that looks at these questions.
So, walk us through a bit about the study. I mean it is a it is a big study like it’s a lot of material, I know. Professor Merritt was involved, friend of the show Kyle Mac(ph) was involved like tons of people were involved in getting this report together to talk about this. So, walk us through what happened there.
Aaron Taylor: Yeah, I mean you say it’s a big study, it’s big both literally and figuratively with hundred something pages and just the topic itself is so important. So, historically there’s just been a dearth of good empirical research on legal education in a manner in which we had licensed lawyers. And so this study was really just asking a basic question what is minimum competence to practice law. Because of course that’s the entire premise of bar exams to assess the extent to which somebody is minimally competent to be allowed into the profession and that concept had really never been defined bar exams themselves have not been proven to serve the effect of keeping bad lawyers out of the profession and so the study really wanted to just dig into what does that look like in the context of the actual practice of law and it did it by asking lawyers about what competencies do they use in their everyday work.
Joe Patrice: Yeah, I mean one thing that we’ve talked about on this show uh when we’ve been complaining about bar exams is it’s just, I mean when we’re talking about minimum competency, it’s also a question of like minimum competency to do what, the age of the generalist lawyer in a lot of ways is gone. I mean it’s rare that, you know, as a litigator I needed to know how real estate transactions are closed and so on and so forth and yet we test everybody as though they have to have a closed book command for one uh couple of days of their life, the command of all these different areas and it’s just so crazy.
Aaron Taylor: And it’s not only command of it but command of it without any resources to double check your knowledge and make sure that is actually correct. I mean the bar exam in many ways is built on the premise of the retail lawyer, you know, the lawyer who essentially takes in whatever comes through the door and handles it it’s kind of like it puts me in the mind of Mayberry from the end of — I’m dating myself a bit but that’s the premise of it and like you said the profession is much different now. One of the interesting findings of this study as well as others that have been done recently is that skills and abilities are much more important than substantive knowledge of law, right? Because I mean hey if you have sufficient ability to do legal research, you can find out what the law says, right? And so it really does harken back a time that no longer exists, the current iterations of the bar exam.
Joe Patrice: A line that I’ve used in some of my stuff that has taken on, it’s become kind of a phrase that some of the diploma privileged people toss around on social media quoting me but the practice of law is an open book exam. You are you are never in a situation where something comes up and the lawyer is applauded for saying, “I refuse to look that up. I’m just going to trust that I’m right.
Kathryn Rubino: Well, I mean there was of course a supreme court nomination or process where there was a lot of —
Joe Patrice: Yeah, exactly. Putting aside ACB(ph).
Kathryn Rubino: I mean and you rightly I think criticized folks who were like, “Uh-huh, got you.” You don’t know the first amendment freedoms by saying there’s never an instance where you need to know any of that off the top of your head if you have (00:22:21) or whatever.
Joe Patrice: Yeah, and what I liked about this exam is one of the first points it makes is that closed book exams seem like a bad way of testing minimum competence if your goal is to test the minimum competence of somebody to be a lawyer in a realistic world.
Aaron Taylor: Absolutely, it’s not only bad, it’s horrible. There’s literally no worse way to do that and so I used to my first job at law school was with the office of bar council in DC. It’s now the office of bar discipline. I think it is. But essentially, they’re the folks who investigate allegations of ethical misconduct and we had a saying that if a lawyer practices law in the same way that we require them to analyze legal issues on the bar exam they will have a complaint before us. There is no (00:23:07) at their license. Because it just simply does not reflect reality and it really goes to you know this entire notion of using the bar exam to exclude as opposed to using the bar exam as an actual tool to make sure that our profession is as best as it can be. So in some ways it’s philosophical. It was never meant to be at least; I don’t think it was never meant to be a good way of assessing people. I think it was meant to be mainly a way to exclude people.
Joe Patrice: Yeah, that’s a great point. I want to pivot from the closed book issue to the performance test issue. We’ve talked a little bit about this but one of the elements of the report is about performance tests and how those are different so what would a performance test look like?
Aaron Taylor: Right. So of course, you have the multi-state performance test, the MPT and essentially the way it’s structured is the test taker gets kind of like a constructed universe if you will. So they get a packet of materials that purport to be say like a legal case file and some of the materials are directly relevant to the call of the question, other materials are irrelevant to it and it’s on the test taker to sift through what’s relevant what’s not relevant and then among what’s relevant really get to what’s being as part of the problem. And so that most closely replicates what lawyers do because irrespective of what type of law you’re practicing you’re going to have materials that you have to review. You’re going to have to figure out what’s relevant, what’s not and then you’re going to have to solve whatever the issue is that you’re facing. So it’s broadly applicable and it aligns most closely with reality.
Joe Patrice: Yeah, you’ll always have something to read and the ability to show that you — I mean we get a little bit of this with some of the reading comprehension questions but the ability to see documents and pull out of them what’s valuable is the whole point. That’s the whole minimum competency.
Aaron Taylor: Yeah, and there are many ways to assess that. The question is what’s the most efficient way right and what’s the most direct way and it seems to me in many others that the MPT, the Moore(ph) Performance Tests I think is the best way to do it. Also, just experiential learning so externships. Other things same client simulations you know there are other ways to exhibit these skills as well but essay exams and multiple-choice exams aren’t the best way though they still may get to those skills indirectly.
Joe Patrice: Yeah, one of the concerns I always have with –I’m one of those folks who believes in more externships and so on and so forth and I recognize that, you know, it’s hard enough sometimes to get a job in the legal world and now to force people to have to get a job that could be an issue. But also the flip side of it is, of course, people who may not on paper seem like someone a firm wants to give a salary to, you know, can demonstrate by showing up that you know I just had a bad LSAT. I’m really fully confident and they get that opportunity through a low-stakes externship. It just seems like it’s a longer-term process to transition to but seems like one that if we had the will it would be a better option.
Aaron Taylor: Yeah, and having that type of experience to distract from other factors that may not be in the applicant’s favor, as you said could give them a leg up but then it also could for the firms really show them who has the best chance of thriving in the practice of law as opposed to who was just the best student in the classroom.
Joe Patrice: So, I guess the question going forward that now people are going to have this report in front of them and we’ll have a link somewhere for this to make sure that this gets out and people get a chance to look. What’s going to be — are there any jurisdictions that seem like they might be primed for hearing this sort of discussion, might be interested be the first test cases that we might be able to lobby to make a change?
Aaron Taylor: Well, I don’t know of any specifically as it relates to this report, but I can tell you California is really going about a very in-depth process of questioning all the assumptions about its bar exam and the extent to which it aligns with the practice of law in that state and I think they’re about to empanel the blue ribbon commission to talk about the future of the bar exam and to really make recommendations to the supreme court of California about what the exam should look like. I’m sure there are other jurisdictions as well but that’s the most high profile when one of the recommendations out of this report is that there should be a panel of experts brought together to actually design kind of like an ideal or prototypical bar exam or means of testing lawyers for purposes of bar admission and so I think both of those things can flow together. You can have jurisdictions, you know, looking at their own ways of doing this but then you can also have this separate group that can maybe put out model best practices on bar examinations or something along those lines.
Joe Patrice: Yeah, and while it’s important to have models a lot of us worry that we kind of went the opposite direction for a while and we kind of homogenized the test in ways that are not particularly productive. It’s one thing to have a model that everyone should follow and another to dictate to every jurisdiction these are the questions you have to use.
Aaron Taylor: Yeah, yeah. And it’s somewhat of an irony because the uniform bar exam for instance, that’s been a great thing for test takers because it allows them to port their scores to other jurisdictions of course subject to what score they got. But you’re right just because an exam works in one state doesn’t mean it works in another. And so jurisdictions really have to look at their own ways of going about this.
Joe Patrice: Yeah, well and also the just as a matter of efficiency, I think the people behind the UBE aren’t really thinking about a lot of the ideas that are in this report. They’re very tied to multiple choice close book questions were easy. So let’s do that and that’s kind of exacerbated of these problems.
Kathryn Rubino: Easy for the greater at the very least.
Joe Patrice: Easy from their perspective, yes, which has exacerbated a lot of these problems. It really has been like one of the weird silver linings as awful as that is of how this pandemic has gone is that we’ve gotten a real stress test.
Kathryn Rubino: And that’s actually what I was thinking a lot of these issues obviously have been festering for a lot longer than the pandemic, you know, you pointed out California. They’ve been doing a lot of work on the bar exam because of outrage over — they’re very — it’s a very difficult desk to pass. A lot of it’s not even based on but based on percentages as opposed to competency and a lot of that stuff. But obviously COVID has changed then and has created a stressor. What is the ways in which you see COVID or the future of sort of online exams playing into the way the bar exam will go forward or ideally would go forward?
Aaron Taylor: Well, my general philosophy with crisis often comes opportunities.
And there’s very often good that can come out of crisis circumstances and in this case, it is that we’ve not only been forced to question but we’ve been forced to do things differently in many cases. As it relates to online bar exams, I mean you know it’s hard to put technology back in the box, you know, once you open it up and once you start to use it and starts to work out the kinks(ph) associated with it, it becomes a part of your life. So I suspect that online examinations whether you’re talking about the bar exam, whether you’re talking about the LSAT may possibly be the future of bar exam. Now, obviously jurisdictions have very different philosophies about a whole lot of things. So you’ll have jurisdictions that stick to the traditional tech but you will have many others that go on and do online exams more or less indefinitely.
Joe Patrice: Yeah, as Homer Simpson eloquently put it (00:30:55) attunity.
Aaron Taylor: Exactly.
Kathryn Rubino: You have Simpsons’ joke for pretty much everything.
Joe Patrice: It’s hard not to, I mean they’ve been on them long enough. You can usually —
Aaron Taylor: Thirty years, right?
Joe Patrice: Yeah, right.
Kathryn Rubino: You’re still watching it. It’s impressive. It’s like your longest commitment ever.
Joe Patrice: Yeah, that’s probably true. But anyway. So, yes. No, this is great. Thank you so much for joining us and we’re going to put out links to this report. I think we’re going to be dissecting a lot of what’s in here for a long time. I read through it over the last couple of days and even I think I probably need to sit down and have a real — a real in-depth read of it to get everything out. But thank you so much Aaron Taylor from the AccessLex who was one of the folks involved in this process and hopefully we will have some bar exam reform in the future.
Aaron Taylor: Sounds good to me.
Joe Patrice: Thanks. Great. Thank you so much.
Kathryn Rubino: Thanks.
Joe Patrice: Okay. So thank you so much for listening. You should be subscribed to this show. If you’re just listening to it through the above law website that’s wonderful but we would prefer you to subscribe. That way we can convince people no you really are here every week and you would get your updates every week, then give it some reviews, some stars, some words about it weighing on how you feel about Squirrel Girl whatever it is, any words there like shows engagement and that helps people know that this podcast exists and is out there talking about law. You should be reading Above the Law as always because we have coverage of these issues as well as many more every day. You should be following us on social media. I’m @JosephPatrice and she is @Kathryn1, the numeral one. I love your hand signals now. I say the same thing every week but you put up a finger for one.
Kathryn Rubino: I know it’s not even a video. I get it.
Joe Patrice: Yeah, i don’t but I mean I kind of love your commitment to directing, you know.
Kathryn Rubino: Well, you know you are forgetful so in your old age. See? It doesn’t come from me.
Joe Patrice: I don’t even know the —
Kathryn Rubino: I’ll play back.
Joe Patrice: I don’t even know the lyrics to the Silver Spoons. (00:33:00) theme song anymore. So, anyway you should be listening to the Jabot which is Kathryn’s show talking about diversity in the law firm world. You can check out LegalTech Week which is my legaltech-related round table with other legal-tech journalists. You should be listening to the other offerings of the LegalTalk network. There are too many even to mention. You should be checking out papersoftware.com and contract tools and remember that code is LTN2020 and with all of that said, I think we’re done. You can go order whatever it is you clearly are trying to order online right now.
Kathryn Rubino: I’d have.
Joe Patrice: Oh good. Well see, there you go. I’m happy for you.
Kathryn Rubino: It’s like cyber Monday.
Joe Patrice: Oh, right. Yeah. It’s not.
Kathryn Rubino: But they’re doing it early because of the pandemic.
Joe Patrice: No. Yeah. Okay, fine.
Kathryn Rubino: It’s a Monday and I’m buying something over this cyber web.
Joe Patrice: Isn’t any Monday really a cyber Monday if you want it to be?
Kathryn Rubino: That’s what I’m saying.
Joe Patrice: Amazing. All right. We’re done here.
If you’d like more information about what you’ve heard today, please visit legaltalknetwork.com. You can also find us at abovethelaw.com, atlredline.com, itunes, RSS, Twitter and Facebook. The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by LegalTalk Network, its officers, directors, employees, agents, representatives, shareholders and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.
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|Published:||November 25, 2020|
|Podcast:||Above the Law - Thinking Like a Lawyer|
|Category:||News & Current Events|
Above the Law - Thinking Like a Lawyer
Above the Law's Joe Patrice and Kathryn Rubino examine everyday topics through the prism of a legal framework.