Scrivener's Error

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Scrivener's Error	Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

10 July 2007

07:59 [GMT-6]

Failure of Objective

Yet again, the organized bar has proven that it doesn't know its head from a hole in the ground, joined by the idiots now running the Bush Administration's test-happy ideocrats. In an article posted today, Leigh Jones describes the current kerfluffle over the relationship between bar-exam passage rates and ABA accreditation of law schools. (The ABA acts as the accrediting agency for law schools under a longstanding delegation by the Department of Education.) As is usual in this particular dispute, everyone is missing the point: That the bar exam, as constructed, doesn't do a damned thing to ensure the intellectual competence of new lawyers.

In its testing-happy mode, the Department of Education is demanding that the ABA require law schools to have a greater proportion of students pass the bar exam.

For schools already accredited but undergoing a periodic review, the proposal would require them to meet one of two criteria. Under the first, they would need to show that in at least three of the most recent five years, first-time test takers passed at no more than 10 points below the first-time bar passage rates for graduates of other accredited law schools taking the bar in the same jurisdiction. Also under the first criterion, schools in which more than 20 percent of their graduates take the bar exam for the first time in other jurisdictions would need to demonstrate that at least 70 percent of their first-time test takers passed during the two most recent bar-exam periods. As an alternative to the first criterion, schools would need to demonstrate that 80 percent of their graduates who took the exam anywhere in the country passed within three attempts, within three years of graduation.

"ABA Moves to Tighten Bar Passage Standards," National Law Journal (10 Jul 2007) (fake paragraphing removed for clarity). How many ways does this beg the underlying question(s)? In no particular order:

Initially, note the irony that the Bush Administration's Department of Education is acting in a way to take more power away from states in two areas "traditionally" committed to states — education and regulation of the legal profession. Ironically, this particular effort is yet another argument for national, not state, regulation of attorneys; if the supposed "state's rights" maroons and ideologues who actually make policy in this administration think it important to establish more measurable national standards...
Under the proposed rubric, almost no law school in either California or Washington State could qualify under the second standard, because so many of the graduates of those schools take the bar in those states... which have pass rates of around 50%. Conversely, it's extremely unlikely that some states with notoriously high bar passage rates will help. Then there's the "Wisconsin issue" — graduates of the University of Wisconsins and Marquette law schools are exempt from their own state's bar exam.
Well over 85% of the bar exam is drawn from material covered in the mandated first-year courses. Why, then, hasn't the legal profession followed the medical profession's lead and moved to a national exam covering that material shortly after it is actually studied, similar to the two-part medical boards? I suppose part of it is that most law schools are revenue-positive, meaning that they want students to continue. More subtly, this is probably part of the national-versus-state control issue.
Unfortunately, Jones's article mentions only administrative opposition to the ABA/DOE proposal. (Don't kid yourselves — in this instance, I have no doubt that the ABA is doing little more than tinkering with and then parroting the DOE's privately communicated directives.) I find it hard to believe that a large group of law-school deans would limit their criticism to the administrative minutiae of "passage rates."

Ultimately, though, what I find disturbing about Jones's article is that it never questions whether the bar exam, or bar exam passage rates, measure a damned thing about attorney competence. (Unfortunately, the traditional law-school exam format isn't much better... but that's for another time.) And that's for a very simple reason: With very, very rare exceptions — almost all of which concern either criminal law or trial practice — a lawyer's emphasis cannot be on coming up with "the answer" right now, but with persuasive advice that meets all of a client's needs.

For example, assume that a client comes to an attorney asking whether there's a way to get out of a particular contract (not so hypothetically, an especially abusive vanity publishing contract). What is ultimately in the client's best interest? The bar-exam answer is to look at the contract, figure out what it says and whether it is theoretically enforceable, and give essentially a multiple-choice response. That, however, ignores the relative financial and emotional situations of the parties; the power of potential publicity; jurisdiction; choice of law; counterclaims; and a wide variety of other considerations. No bar exam question ever even considers the possibility of an "efficient breach," and that's just within the contract itself. Since I've both engaged in and inherited more than one of these, I think my opinion that the "book answer" is usually wrong should get at least some weight.

The irony that today's law.com news summary also includes an article on developments in the antitrust case against the "market leader" in bar review preparation courses is just too delicious.

Labels: law practice, politics

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Links of Interest

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Writer Beware and the Writer Beware Blog provide essential knowledge for writers who don't want to be ripped off
Writing-World.com published by the former managing editor of the now-defunct Inklings
Agent Research & Evaluation provides both free and paid analyses of literary agents
US Copyright Office, including both registration forms and records and quite a bit of other helpful information
Trademark Electronic Search System (TESS) allows searches of granted, pending, and some rejected trademark registrations
US Supreme Court Opinions from the current and past couple of terms
Law Library of Congress includes statutes for free
The Public Library of Law can help you find the law... but not use it in court, as many of its resources are not in proper form and do not provide all of the citation information needed in court papers
Legal, free e-books are available through Online Books (University of Pennsylvania) and Shakespeare (MIT)
Legal, free music is available through
- ClassicCat.net (what kind of music do you think you'll find here?)
- Music.Download.com (long-awaited successor to MP3.com)
- Janis Ian (artist)
- John McCutcheon (artist)

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

A blawg is sort of like a blog on legal issues, but usually has a lot more links to outside resources (other than other blogs) than does a typical blog. Scrivener's Error is a blawg, not just a blog. You can find other blawgs at < ? law blogs # >.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the Supreme Court, don't forget SCOTUSBlog.
Some academics' blawgs with a variety of political (and doctrinal) viewpoints:
- Professor Anthony Arend (Georgetown Law)
- Professor Stephen Bainbridge (UCLA Law) (aka "The Perfesser")
- Professor Jack Balkin (Yale Law)
- Professor Dennis Crouch (Missouri Law) (better known as Patently-O)
- Professor Michael Froomkin (University of Miami Law)
- Professor Eric Goldman (Santa Clara University Law)
- Professor Rick Hasen (Loyola-LA Law)
- Professor Brian Leiter (U of Chicago Law/Philosophy)
- Professor Lawrence Lessig (Stanford Law)
- Professor Michael Madison (Pitt Law)
- Professor Larry Ribstein (University of Illinois Law)
- Professor Lawrence Solum (University of Illinois Law)
- Professor Rebecca Tushnet (Georgetown Law)
- Professor Tom Ulen (University of Illinois Law)
BoingBoing, by speculative fiction writer (and 'net activist) Cory Doctorow, is quite hostile to copyright enforcement efforts, particularly regarding file-sharing
The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance
Cyberlaw (Stanford) has its agenda grounded firmly in the so-called "digital commons," which might make a bit more sense if any of the advocates of that viewpoint understood diddly-squat about population ecology
The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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