A Time of Change in Legal Education
The Bencher | March/April 2023
By Cynthia E. Nance
These are eventful and challenging times for legal education. However, these challenges provide opportunities for responsiveness and innovation on the part of law schools. Some of the issues facing legal academia reflect broader societal concerns. Others are unique to legal education and the legal profession. While not meant to be all encompassing, I offer my thoughts on a few of these issues.
In the years since I began teaching in 1994, the profession and legal education have made a great deal of progress in recognizing the need to address mental health and overall wellness. Many studies document the prevalence of mental health and substance abuse issues among law students (Jerome Organ, David B. Jaffe, Katherine M. Bender, “Suffering in Silence: The Survey of Law Student Well-Being and the Reluctance of Law Students to Seek Help for Substance Use and Mental Health Concerns,” Journal of Legal Education at 116, 2016.)
As one might expect, the COVID-19 pandemic exacerbated these concerns. According to a recent Law School Survey of Student Engagement (LSSSE) report, students reported experiencing elevated levels of loneliness, depression, and anxiety in addition to worries about meeting financial, and in some cases, caregiving needs. The pandemic also affected faculty and staff who faced their own health, workplace, and caregiving struggles, while also attempting to meet the needs of their students (Meera J. Deo, “The Covid Crisis in Legal Education,” Law School Survey of Student Engagement, 2021). The good news is that the aforementioned survey also noted that despite these challenges, 93% of the students in the LSSSE survey felt that their professors showed “care and concern” toward them during the pandemic.
Students today are more open about the challenges they are facing and are also more willing to seek help. In the early years of the Judges and Lawyers Assistance Program, students were more reluctant to talk about these issues than is true today. Some of this early reticence was due to their concerns about having to report this information on their bar applications. Both the American Bar Association (ABA) and the National Conference of Bar Examiners have encouraged licensing entities to focus on conduct and behavior rather than mental health history and diagnosis (Marilyn Cavicchia, “A New Look at Character and Fitness: Bar Leaders, Lawyers, Others Urge Elimination of Mental Health Questions,” Bar Leader, January 11, 2020). The trend toward limiting or eliminating these questions has made it easier for students to come forward and to seek help.
I am encouraged by the fact that law schools are embracing a holistic view of wellness and are being proactive about these issues. For example, both Arkansas law schools have active wellness groups that are involved with and supported by the Arkansas Judges and Lawyers Assistance Program. These student groups develop programming around wellness issues and serve as peer supports to their colleagues. A recent example is the “Find the Balance” group formed for by our students who are also parents. At their request, we created a family study room so that student parents have a space to study with their children. The faculty and staff are also making wellness a priority. Several of them attended a Mental Health First Responder Certification workshop to gain insights into and better serve the needs of our students. While the profession needs to continue to make strides in this area, there are certainly positive steps toward prioritizing wellness.
The NextGen Bar Exam
An evolving and critical issue for law schools and legal education is the anticipated changes to the bar exam. Law schools are monitoring and preparing to address the National Conference of Bar Examiners’ (NCBE) NexGen bar exam. The test, which is expected to debut in July 2026, is a significant departure from the current bar examination. The NCBE is developing the new exam based on its three-year study that sought to identify the skills new attorneys should have or be able to learn within the first three years of practice.
How will the NextGen bar exam differ from the current bar exam? The NCBE is developing an exam that is designed to holistically integrate legal knowledge and skills into a single practice-related exam. The idea is to test analysis of real-world scenarios that a newly licensed lawyer would be likely to encounter in practice. The new exam will consist of item sets, described by the NCBE as, “requiring candidates to perform one or more legal skills in the context of a realistic scenario raising one or more substantive or procedural legal issues.” (Kellie Early, “The Next Generation of the Bar Exam: Quarterly Update,” The Bar Examiner, 2022, at 29.) The Update provides an example of the type of prototypical fact scenario that raises issues of both criminal law and evidence, along with a series of questions or prompts for the examinee. According to the NCBE, these new integrated items “can be scored on multiple dimensions, both for demonstrating knowledge of the relevant legal doctrine and for proficiency in the applicable legal skill.” (Early, Bar Exam.)
Apart from the shift to integrated items, the new exam as proposed would limit the scope of legal subject matter it tests. The NCBE posted the proposed test scope of content and received comments from more than 700 stakeholders, including judges, law deans and administrators, law students, and practicing attorneys (https://nextgenbarexam.ncbex.org/content-scope-and-item-prototypes-featured-in-the-bar-examiner). The most recent update confirms the new exam will cover constitutional law, criminal law, evidence, real property, contract law, torts, civil procedure, and business associations (Marilyn Wellington “The Next Evolution of the Bar Exam,” The Bar Examiner, fall 2022). If you are interested in learning about the most recent developments, there is a 90-minute NextGen Bar Exam webcast, which is designed to help legal educators prepare for the new test (https://thebarexaminer.ncbex.org/article/fall-2022/next-generation-of-the-bar-exam-quarterly-update).
A recent blog post by Larry Cunningham, provost, dean, and professor of law at Charleston School of Law, poses some of the issues the new test raises for law schools, including the ethical and consumer obligations the school has to prepare students for the exam; how (or whether) a school’s teaching methods and assessments should adapt to prepare students for the format of the new bar exam; whether and when a state supreme court will adopt the new exam; and whether the skills assessed by the NextGen bar exam are adequately addressed by the school’s current curriculum (Larry L. Cunningham, “Preparing for the NextGen Bar Exam: Questions to Consider,” Law School Assessment Blog, March 29, 2022).
Law School Rankings
The U.S. News and World Report law school rankings have long been the subject of intense criticism from the legal academy. Critics have questioned the ranking’s methodology and raised the concern that the rankings incentivize the wrong values and undermine those that are most important to students and society. Yet, even in the face of the ongoing criticisms of the rankings, school and universities have tended to tout their positive rankings to prospective students, alumni, and the public.
Though the rankings debate has long been a hot topic within legal academia, there has been a recent seismic shift. As of this writing, Yale, Harvard, Penn, Georgetown, Columbia, Berkeley, Stanford, U.C. Irvine, Michigan, U.C. Davis, and University of Washington School of Law are among the 14 schools that will no longer participate in the rankings because, among other reasons, “they disincentivize programs that support public interest careers, champion need-based aid, and welcome working-class students into the profession,” according to Dean Heather K. Gerken of Yale Law School (H. Gerken, “Why Yale Law School Is Leaving the U.S. News & World Report Rankings,” November 16, 2022).
Additional criticisms voiced by the deans of schools withdrawing from the rankings include dissatisfaction with the weight rankings place on academic opinion polls, the discounting of students who seek public interest employment, and the argument that rankings disincentivize need-based aid (Danielle Douglas-Gabriel, “Yale and Harvard Law Schools Abandon U.S. News College Rankings,” The Washington Post, November 16, 2022).
Yet, there is a public divide on the issue, with Cornell, Chicago, Georgia, and Washington University in St. Louis issuing statements that they will not leave the rankings (Karen Sloan, “Stay? Go? Law schools diverge in U.S. News rankings revolt,” Reuters, December 2, 2022). Why? Dean Thomas J. Miles of Chicago Law School stated in a message to current students that “most of the data supplied to U.S. News was already public and the rest of the information we have no reason to withhold.” (Anna Essaki-Smith, “University Of Chicago, Cornell Law Schools to Continue with U.S. News Rankings,” Forbes.com, November 30, 2022).
Dean Jens David Ohlin of Cornell agreed. While he feels that “rankings distort academic decision-making...and create perverse incentives that are not in the best interests of students or the legal profession,” he noted much of the data that U.S. News relies upon to rank law schools is publicly available from the ABA’s accreditation project (Angela Bunay, “Dean Jens Ohlin Says Cornell Law Will Not Withdraw from U.S. Rankings,” The Cornell Daily Sun, November 27, 2022).
The schools’ withdrawal from the rankings prompted Robert Morse of U.S. News to reach out to law deans Individually, indicating that the publication will address some of the concerns deans raised and will make additional changes in the future (Paul Caron, “In Response to Boycott, U.S. News Dramatically Changes Rankings, TaxProf Blog, https://taxprof.typepad.com/taxprof_blog/2023/01/in-response-to-boycott-us-news-dramatically-changes-law-school-rankings-methodology.html). For many schools, the decision whether to participate is one that will be made with the input of university administration. Regardless of any individual school’s position, this is a development worth following.
Elimination of the Standardized Admissions Test Requirement
A related, but separate, issue is that at its November 2022 meeting the Council of the American Bar Association Section on Legal Education and Admissions to the Bar voted to make standardized admissions tests optional for accredited law schools. Currently, the LSAT and GRE are the only tests schools use. This will obviously impact the U.S. News rankings as they rely on LSAT scores. (Though this is obviously not the central concern, as that would be the proverbial tail wagging the dog.) Importantly, this heavily debated change to the Accreditation Standards is being driven by concerns about access, diversity, and innovation, which are also the same reasons many oppose the shift away from a test.
The ABA House of Delegates must concur in the change to Accreditation Standard 503 before it takes effect. The House was scheduled to meet in New Orleans in February 2023. If adopted, the change would be effective in the fall of 2025 (Matt Reynolds, “ABA Legal Ed council advances proposal to make law school admissions tests optional,” ABA Journal, November 18, 2022). Should the House of Delegates concur in the proposed rule change, each school will need to determine whether or how it will alter its admissions policy.
The council received numerous comments on the proposed change. There are diverse voices supporting and opposing this change to the Standards. Proponents of the change argue that the change is a recognition of the disparity in test scores between underrepresented students and white students and that eliminating the test requirement will help to increase diversity in the legal profession. Opponents of the change feel the tests are the best measure of a prospective law student’s chances of success in law school and that the tests protect students who may not be adequately prepared from incurring debt. However, 47 law school admissions deans and administrators signed a letter opposing the change based on concerns that without the test, schools will rely on subjective factors that allow for increased discrimination in the admissions process (Karen Sloan, “Proposal to axe LSAT requirement spurs debate over test’s effects on diversity,” Reuters.com, August 31, 2022).
Those who support a test requirement argue that it is an equalizer that helps underprivileged aspiring lawyers. Proponents of the change also point to the test’s cost and the difficulty aspiring lawyers with certain disabilities have with standardized tests. They argue the change will allow for innovation in admissions (Christine Charnosky, “As Public Comment Period Winds Down, Debate Heats Up Over ABA Proposal to Make LSAT Optional,” Law.com, August 22, 2022).
Additional significant changes are on the horizon as schools await the U.S. Supreme Court’s decision on changes to the use of race in admissions and continue to monitor some states’ consideration of additional paths to licensure. It is truly an interesting time for legal education. ◆
Cynthia E. Nance is dean and Nathan G. Gordon Professor of Law at the University of Arkansas at Fayetteville School of Law. A member of the University of Arkansas Law faculty since 1994, Nance’s teaching and scholarship is focused on labor and employment law, workplace legislation, poverty law, and lawyers as leaders. She is a frequent writer and presenter, both nationally and internationally, on a variety of legal and education issues.