Legal education at a crossroads: a response to "Measuring Merit: The Shultz-Zedeck Research on Law School Admissions."
I. INTRODUCTION II. THE CRISIS IN LEGAL EDUCATION III. THE FLAWS IN MEASURING MERIT A. LOWER ADMISSIONS STANDARDS MEAN LOWER LEARNING AND EMPLOYMENT OUTCOMES 1. THE CORRELATION ARGUMENT IS MISLEADING 2. SUBJECTIVITY IN SCORING AND THE LACK OF MEANINGFUL DISTINCTIONS BETWEEN CANDIDATES B. SUCCESS DEPENDS ON THE QUALITY OF EMPLOYMENT OUTCOMES C. THE AUTHORS DEFINE DIVERSITY TOO NARROWLY D. THE LSAT SCORE GAP REFLECTS POVERTY, INEQUALITY, AND LACK OF EDUCATIONAL OPPORTUNITY IV. CONNECTING MERIT AND DIVERSITY TO RIGOROUS STANDARDS A. ATTRITION B. ACADEMIC SUPPORT AND MENTORING C. ASSESSMENT-BASED GRADING D. EMPHASIS ON PRACTICAL SKILLS AND LEGAL WRITING E. PREPARATION FOR THE BAR EXAMINATION F. LOWER TUITION V. CONCLUSION
When Professor David Frakt arrived on campus at Florida Coastal School of Law to interview for the law school's dean position, few would have imagined that the current dean would threaten to have security escort Frakt off campus as if he had entered the classroom pointing an AK-47 at the faculty. What did Professor Frakt do to merit such a response? (1)
He told the truth.
During a presentation to the faculty, Professor Frakt candidly stated that law schools should be wary of admitting students who score low on the Law School Admissions Test (LSAT) because they are unlikely to pass the bar exam. (2) To be sure, Professor Frakt did not suggest that schools should refuse admission to every student who scores below a 145 on the LSAT, which places an applicant in approximately the twenty-sixth percentile. Rather, Professor Frakt stated:
What I have said is that students below 145 should not be admitted unless they have a strong undergraduate record or other substantial indicators of success, and they prove themselves capable of law school level work through a rigorous admission by performance program. I have expressed doubt that anyone who scores below a 142 (eighteenth percentile) possesses the analytical reasoning skills (and test-taking ability) to succeed in law school and pass the bar, but I'm sure there are rare exceptions. (3)
Relying on empirical evidence concerning LSAT scores and bar passage, Frakt simply pointed out that applicants with LSAT scores in the low 140's--and especially those who score below 140--will likely fail the bar exam at a fairly high rate. (4) Of course, they may also struggle to obtain meaningful employment and graduate with a six-figure debt that makes life after law school much more difficult than it was before. (5) When a school official interrupted Professor Frakt and warned him that such statements were unacceptable, it was reminiscent of a scene in the 1996 film Jerry Maguire. In one scene, the lead character (Jerry Maguire) drafted an internal memorandum stating that his company should accept fewer clients, make less money, and provide a more client-centered service.
A supervisor fired Jerry Maguire over lunch a few days later.
Professor Frakt was ushered out the door like some creep who walks into flight training school, pays in cash, and says, "I only want to learn how to take off."
The truth is sometimes difficult to accept, but it is still the truth. Lower admissions standards mean lower bar passage rates and more unemployed--and debt-ridden--graduates.
This Essay argues that, at a time when the number of graduates exceeds the number of available jobs, it is utterly irresponsible--and unethical--to admit many students with extremely low credentials and charge tuition that leaves graduates with a six-figure, non-dischargeable debt. This is not to say that law students with very low entering credentials never become successful lawyers. Many do. A significant number, however, fail the bar exam. Many fail to obtain meaningful employment. For this and other reasons, law schools must be careful about whom they admit--and what they represent to prospective applicants.
In particular, the efforts by some legal educators to de-emphasize, if not replace, the LSAT, are misguided and, ultimately, harmful to the very students these educators are trying to help. For example, in Measuring Merit: The Shultz-Zedeck Research on Law School Admissions (Measuring Merit), (6) professors at the University of California--Berkeley (authors) argue that the LSAT's role in the admissions process should be minimized in favor of tests that assess lawyering competencies. As discussed below, this approach, although well-meaning, will likely continue the trend of admitting under-qualified applicants who find themselves saddled with six-figure student loan debt and career prospects not nearly as rosy as they had imagined.
Part II of this Essay discusses the authors' research and proposed definition of merit. Part III examines the authors' research findings and argues that they do not justify de-emphasizing or eliminating the LSAT. Part IV offers an alternative proposal that strives to increase diversity without sacrificing admission standards. It mirrors the curricular model adopted at the North Carolina Central University School of Law. North Carolina Central admits some candidates with below average credentials, but charges low tuition, attrites a portion of its class after the first year, and historically has achieved relatively high rates of bar passage. (7) North Carolina Central proves that the path to increasing diversity in the profession is on a road not less traveled: academic rigor, which rewards people for what they have accomplished, not for what they cannot change.
II. THE CRISIS IN LEGAL EDUCATION
When law schools accept a substantial number of applicants with LSAT scores below 140 and no other indicators suggest the applicant will succeed in law school (e.g., strong undergraduate grade point average or a history of poor standardized test scores), they are setting some students up for failure and financial hardship. As the table below shows, LSAT scores, particularly when combined with law school grade point average, reasonably correlate with bar passage rates.
Data on the link between LSAT scores and bar passage has not stopped some law schools, particularly those in the bottom tier, from matriculating incoming classes where one in four students is considered at-risk for failing the bar examination. (9)
Interestingly, and to the surprise of some, in July 2014 the number of graduates who passed the bar examination declined at law schools across the country. How could this possibly happen? To be fair, one cannot automatically assume this decline is attributable to lower entering credentials. After all, the mean LSAT scores for the 2011 entering classes were not significantly lower than the prior year. (11) As such, National Council of Bar Examiners (NCBE) President Erica Moeser may have erred when she characterized this year's test-takers as "less able." (12) Perhaps the July 2014 bar examination, particularly the Multi-State portion, had flaws in the design or scoring. Alternatively, as Professor Deborah Merritt explains, a flaw in the exam software may have had a negative psychological impact on the testtakers. (13) This is the more likely explanation, as an internal review by the NCBE revealed no flaws or "unintended differences in the processes used to perform the equating of a more recent test." (14)
Thus, if the mean LSAT score of the 2011 entering class was similar to the prior year and the bar examination is not to blame, what could be the reason? This Article suggests that it is due to the four-year decline in LSAT scores at the twenty-fifth percentile. (15)
This approach can spell nothing but bad news for law schools, and reflects a desire to fill seats by lowering admissions standards--or having none at all. The effect is to admit students who are at high-risk for failing the bar exam, and whose odds of finding a job that can justify the cost of tuition are long indeed. For this and other reasons, it is essential that law schools maintain rigorous admissions and graduation standards, despite the significant decline in applicants, to ensure that legal education is a viable economic choice for individuals and produces quality graduates. At the annual meeting of the American Association of Law Schools (AALS) in January, Northwestern University School of Law Dean Daniel Rodriguez made the same point to the AALS's House of Delegates:
No law school has a right to a certain size entering class or a class of a certain level of credentials. The idea that a law school is struggling because it cannot maintain a size adequate to assure that the fixed costs of its faculty, its infrastructure, its financial contribution to the central campus is essentially a non sequitur. The law school's structure can only be a function of how many qualified students can be persuaded to apply and to enroll. The turbulence in law school enrollment will no doubt continue and, although this will present real challenges to particular member schools as they manage their budgets, it is not the predicament which should and must occupy our attention. That predicament--the one worthy of our attention--is whether and to what extent law schools are serving the fundamental aim of providing high quality education to law students who have the requisite skills to be in our nation's law schools and who, with the benefit of this high quality education, will be able to serve clients and do justice as new lawyers. (16)
Dean Rodriguez is correct. The crisis facing legal education will only get worse if law schools continue to reduce admissions standards and focus on the number rather than the quality of their students. As it stands, some law schools are admitting applicants with extremely low entering credentials in an attempt to keep enrollment stable. The long-term result of this effort leads to anything but stability.
There can be no doubt that the issues confronting legal education are substantial: high tuition, a curriculum that does not focus on practical skills, and a job market that leaves many graduates without employment. Still, one of the most challenging issues is the decline in the credentials of incoming students. Instead of confronting this issue directly, some legal educators have attacked the standards governing admission to law school and legal practice, including the bar exam. For example, Brooklyn Law School Dean Nicholas Allard wrote in a letter to President Moeser that "[i]t is not the students, it's the test." (17) Undoubtedly, Dean Allard is a passionate and well-respected advocate for his students. But is it really the test? Or is the problem that we are admitting students who are not likely to pass the bar exam, particularly if they are not given intense and comprehensive academic support throughout law school? After all, when examining bar pass rates closely, it becomes clear that the lower a law school's mean LSAT score, the lower the school's bar pass rate. (18) Is that merely a coincidence? No.
Furthermore, the LSAT has been the target of ongoing criticism throughout the years, some of which is accurate. As some scholars have argued, the LSAT focuses on a relatively narrow range of skills and does not assess professional competencies such as interpersonal skill, practical judgment, and emotional intelligence. (19) In addition, the LSAT disparately and negatively affects African-American applicants, with Caucasian applicants typically performing about ten points higher than African-Americans. (20) Moreover, law schools place substantial weight on the LSAT in the admissions process. (21) As a result, the Law School Admission Council is correct to caution law schools not to place "undue weight" on the LSAT in the admissions process. (22)
The solution, however, is not to eliminate the LSAT or to de-emphasize the skills that it tests--analytical and verbal reasoning. These skills, along with excellent writing and research ability, are among the most important proficiencies a lawyer must possess. Admittedly, the LSAT is an imperfect measure of analytical and reasoning ability but it is a reliable predictor of success in the first year of law school, and when combined with law school grade point average, the LSAT correlates reasonably with bar passage rates. Certainly, at the margins the LSAT identifies applicants who are likely to excel in law school, and those who will struggle to avoid academic dismissal. (23)
This Essay responds to one highly publicized and well-meaning effort to minimize the LSAT's role in the admissions process. In Measuring Merit: The Shultz-Zedeck Research on Law School Admissions (Measuring Merit), the authors argue that law schools should de-emphasize the LSAT and rely upon a situational judgment test, the Shultz-Zedeck test, that the authors claim correlates twenty-six lawyering competencies, the Effectiveness Factors. (24) The Effectiveness Factors include, but are not limited to, the following:
* Analysis and Reasoning;
* Strategic Planning;
* Problem Solving;
* Practical Judgment;
* Evaluation, Development, and Mentoring;
* Fact Finding;
* Researching the Law;
* Networking and Business Development;
* Questioning and Interviewing;
* Creativity and Innovation;
* Organizing and Managing Others;
* Negotiation Skills;
* Developing Relationships Within the Legal Profession;
* Providing Advice and Counsel and Building Relationships with Clients;
* Influencing and Advocating;
* Able to See the World Through the Eyes of Others;
* Integrity and Honesty;
* Stress Management;
* Passion and Engagement;
* Community Involvement and Service; and
* Organizing and Managing (Own) Work (25)
The authors developed the Effectiveness Factors based on the responses from a survey the authors developed. In that survey, the authors posed questions such as: "If you were looking for a lawyer for an important matter for yourself, who would you identify and why? What qualities and behavior would cause you to choose that attorney? What kind of lawyer would you want to teach or be?" (26) After reviewing the responses, the authors selected and administered a battery of questions designed to assess competency in all twenty-six Effectiveness Factors, and identified questions that correlated with one or more of these factors. (27) Based on the results, the authors argue that the Shultz-Zedeck test correlates more strongly with professional competencies than the LSAT. (28) In addition, unlike the LSAT, the Schultz-Zedeck test does not result in a scoring gap between Caucasian and African-American students. (29) Therefore, the authors argue that law schools should use the Shultz-Zedeck test in the admissions process, not merely to predict professional competency, but to facilitate a "racially inclusive profession." (30)
The authors acknowledge the "important overlap between the skills of attaining high law school grades and those of high quality professional performance." (31) Nonetheless, they do not discuss the link between LSAT, grades, and success on the bar exam. In fact, in a study of graduates from Indiana University--Indianapolis School of Law who took the bar exam in 2012, over 85% of students with a 2.83 grade point average and LSAT score of 139 entering law school failed the bar exam. (32) As the American Bar Association's Section of Legal Education and Admissions to the Bar stated, "[t]he LSAT can and does provide a fair measure of first-year law school performance and correlates well with the final law school grade point average, rank in class, and performance on bar examinations." (33) The Shultz-Zedeck test, however, assesses professional, not academic competence. This leaves a gaping hole in the authors' assertion that law schools should use, if not replace, the LSAT with this test, and judge applicants "based on scores relating to the lawyering measures and other, less tangible factors." (34)
Indeed, bar passage rates dramatically increase with LSAT scores at the sixtieth percentile, but fall when scores drop to the fortieth percentile. For example, 70% of students with law school grade point averages of 2.9. and LSAT scores of 154 will pass the bar, whereas only 50% of students with the identical grade point average, but an LSAT score of 149, will pass the bar. (35)
The following table shows the correlation between individual factors and bar passage.
Thus, the LSAT is not just some meaningless test that tortures prospective law school applicants for four hours on a tension-filled Saturday morning. LSAT scores, particularly at the extremes, permit law schools to identify applicants who are likely to succeed academically and pass the bar. They also give applicants a good indication of the schools where they will likely gain admission, which will enable them to decide whether attending law school is a viable economic choice. Most importantly, for law schools who accept students with very low LSAT scores, the test lets them know that a high bar passage rate will require a comprehensive academic support, assessment, and bar preparation program.
Admittedly, the authors of the Schultz-Zedeck test are correct that "lawyers need to know how to do so much more than reason and argue." (37) However, law students must be able to reason and argue effectively if they are to have any hope of practicing law competently. After all, a person cannot be a good negotiator, counselor, or advocate if he cannot formulate a persuasive argument based on unsettled law or incomplete facts. Thus, although the LSAT is imperfect, it is still the best predictor of academic success in law school, and academic success in law school leads to better employment outcomes.
This is not to say that the Shultz-Zedeck test is valueless. The problem is how the authors seek to use this test. First, the test's Effectiveness Factors largely amount to an assessment of "soft skills," and downplay the link between analytical ability and success in the legal profession. Soft skills are certainly necessary for competence in the legal profession, but they are only half of the equation. Cognitive ability is the other half. If anything, the Shultz-Zedeck test should supplement, not replace the LSAT (or other standardized tests). Although the authors claim that their test is merely designed as a supplement to the LSAT, their words, which attack "arguably discriminatory proxies like first-year grades" (38) and criticize "school-oriented cognitive tests," (39) send a different message: to dispense with the LSAT altogether. It would be quite difficult, however, for an admissions committee to predict whether an applicant will be a competent lawyer without also considering the applicant's reasoning, writing, and critical thinking skills. The authors seek precisely that result, stating that, with increased use of the Shultz-Zedeck test, "the LSAT would cease to be relevant." (40)
If the LSAT--or some valid measure of analytical ability-ceased to be relevant, then what criteria would govern admissions? Whether an applicant has good listening skills? Whether the applicant respects other people's feelings? Those skills are certainly desirable, but without having strong analytical reasoning and writing skills, these skills will not make someone a good lawyer. And legal educators who have relentlessly attacked the LSAT--or sought to eliminate any standard that draws meaningful distinctions between people on the basis of critical thinking and reasoning skills--should not be surprised if bar pass rates plummet in the coming years. After all, this is already happening: as standards at some law schools have plummeted, so too have their bar passage rates. One thing, however, has not changed: the six-figure debt that saddles graduates and makes the American dream seem like a pipe dream.
Second, the authors re-define merit and success in a troubling manner. They focus on professional competency, but their definition eschews "traditional measures of success: bar passage, salary, or time passed before achieving partner status." (41) The authors take an ends-justify-the-means approach that conditions a valid definition of merit on ensuring a "racially inclusive profession." (42) Few would question the value of diversity in law school and the profession, but the authors' definition, among other things, devalues the very factor that motivates students of all backgrounds to attend law school: attainment of a better quality of life. For most, that means a good job with a salary that justifies the non-dischargeable student loan debt most students accumulate during law school. Graduates who have acquired core lawyer competencies, but fail the bar exam or do not find meaningful employment, are ultimately unsuccessful. To put it bluntly, increasing, or even maintaining, the number of graduates is desirable only if it tends to result in quality employment outcomes for a substantial number of those graduates. Conversely, in the current market, good employment outcomes are difficult to come by, partly because there is an oversupply of lawyers and an underappreciation of the struggles that graduates face in the real world. (43) Law schools cannot control whether their graduates get jobs, but they can control their admissions policies, which should reflect, in part, an applicant's likelihood of getting the types of jobs that justify their debt.
Third, as discussed below, the Shultz-Zedeck test measures skills that can be difficult to assess objectively. For example, whether an individual is an "average" or "above average" listener may depend on cultural background, personal experience, and context. In addition, the scoring gradations, which range from "poor" to "excellent," would allow admissions personnel to distinguish between applicants who score at the margins, but would make it difficult to identify differences between applicants who score in the middle. In other words, the Shultz-Zedeck test may result in a narrow bell curve that blurs distinctions in analytical reasoning skills. For instance, what is the qualitative difference between an "average" and "above average" listener? Who defines "good listening"? The answer may depend on the person, and that is precisely the point. Indeed, for all the criticism levied at standardized tests, their objectivity is a valuable tool.
Fourth, the authors do not explain how the Shultz-Zedeck test--and a definition of merit based on achieving equal racial outcomes--would affect the law school curriculum. For example, law schools can certainly choose to admit applicants who score high on the Shultz-Zedeck test, but who have undergraduate grade point averages below 2.5 and LSAT scores below 140. If they make this decision though, law schools should provide rigorous and comprehensive academic support, robust bar preparation services, and a policy (or curve) that discourages grade inflation. Of course, many law schools should already provide such services, and give individualized attention to then-students. The fact remains, however, that Harvard or Yale probably has less need for comprehensive academic support--and fewer students who are at risk for failing the bar exam--than a law school with a median LSAT in the mid-140's and a median GPA of less than 3.0. The correlation between a law school's median LSAT scores and bar passage rate supports this argument.
In addition, law schools would likely have to attrite students who perform poorly after their first year (e.g., those with a cumulative grade point average under 2.0). Attrition is not something to celebrate; no one likes to see a student's dream of becoming an attorney end. At the same time, law schools cannot simply shuffle students through each semester and hand them a diploma upon graduation. Given that the authors' stated goal when designing the test was to achieve a racially inclusive profession (which most would agree is an important goal), one must also wonder whether they would commit to these policies. One would hope so, given the immense amount of money law students are spending with the belief that their degree will mean something. Law schools have an ethical duty to be honest about whether an applicant's credentials and career prospects are worth the price of a degree. Furthermore, applicants are now aware that law schools have been peddling false hope about post graduation employment outcomes. This is one reason why applications have declined dramatically in the last several years, and the legal academy is the subject of ongoing criticism by recent graduates.
As stated above, the Shultz-Zedeck test can have substantial value in the admissions process if used as a supplement to the LSAT, undergraduate grade point average, personal statement, and letters of recommendation. Some individuals are poor test-takers or may be struggling with personal issues and perform poorly on a bad day. Others may struggle with performance anxiety that affects their ability to perform optimally on a prolonged, time-sensitive examination. Indeed, the Law School Admissions Council recognizes that the LSAT should not be the sole or even primary factor in admissions. (44) Most importantly, the score disparity between Caucasians and African-Americans is deeply troubling and suggests that we should examine whether the LSAT can be modified to reduce this disparity, or whether other standardized tests would reduce, if not eliminate, the disparity. The solution, however, is not to vilify the LSAT, just as it is not productive to blame the Multi-State Bar Exam (MBE) for the recent drop in scores. If history is an indicator, the drop in MBE scores is due to the drop in LSAT scores at the twenty-fifth percentile.
Law schools must have admissions standards. Students should not be lulled into the belief that, after graduation, they will obtain a six-figure starting salary and live happily ever after. The current mess that law schools find themselves in is due, at least in part, to the fact that fewer potential applicants perceive law school as a viable economic choice. The authors' decision to omit bar passage rates and employment outcomes from their definition of merit does not help the issue. It is a symptom of the problem. Applicants with entering credentials that place them at risk of failing the bar exam or being unable to compete for meaningful employment are precisely the students for whom bar passage rates and employment outcomes will matter most.
Admittedly, income-based repayment programs have enabled some graduates to lessen their financial burden. (45) Graduates who qualify for these programs must make loan payments totaling 10%-15% of their annual income over a ten-year, twenty-, or twenty-five year period. (46) After the repayment period ends, the federal government forgives the remaining debt amount. (47) However, income-based repayment plans are not without problems. Eligible graduates often pay a higher interest amount over the ten-year period. (48) Furthermore, for some graduates, the unpaid amount is treated as additional income and taxed accordingly. (49) Thus, although income-based repayment programs are beneficial, they do not solve the financial crisis that confronts many law school graduates. This problem worsens when applicants with very low credentials are admitted to a law school, charged full tuition, and upon graduation are unable to find full-time employment. The Shultz-Zedeck test, although well intentioned and valuable in certain aspects, increases the likelihood of this happening.
III. THE FLAWS IN MEASURING MERIT
In Measuring Merit, the authors criticize legal academia for admissions practices that "undeniably favor white applicants" and argue that "race must be considered in admissions decisions because otherwise talented students of color would be disproportionately excluded due to past--and current-discrimination." (50) What they do not say is whether all or a substantial number of applicants (regardless of race) who perform well on the Shultz-Zedeck test but who have an extremely low undergraduate GPA and LSAT scores, should be admitted to law school.
A. LOWER ADMISSIONS STANDARDS MEAN LOWER LEARNING AND EMPLOYMENT OUTCOMES
Law schools have made the mistake of admitting too many students with substandard credentials, regardless of whether they are African American or Caucasian. One study examining the 2012 graduates at Indiana University's Robert H. McKinney School of Law concluded that the majority of graduates with LSAT scores between 139 and 144 would likely fail the bar exam unless they had a law school grade point average above 3.0. (51) Given this statistic, law schools can certainly justify admitting students with a low LSAT score, but they cannot simply shuffle students through law school with inflated grades. Instead, law schools must provide robust and ongoing academic support and dismiss (preferably during the first year), students who perform so poorly that they have little, if any, chance of passing the bar exam. After all, when students are academically dismissed from law school, or graduate but fail the bar exam, who suffers the most harm? The students who have a mountain of non-dischargeable student loan debt.
Indeed, what the authors do not say in Measuring Merit is that the performance gap between white and African-American applicants almost disappears when the study compares Caucasians and African-Americans who scored at or above the mean for that year's entering class. For example, for the class that entered law school in 1991 who had scores at or above the LSAT mean, Caucasians had a pass rate of 95%, while African-Americans had a pass rate of 88%. (52) Is there something wrong, therefore, with the assertion that law schools should deny admission to a substantial number of applicants with standardized test scores below the thirteenth percentile (approximately 140 on the LSAT), (53) regardless of their race?
The authors' desire to ensure "a racially inclusive profession" (54) is laudable and is an important goal for the legal profession. They understandably seek to remedy a long history of intolerable injustice that includes slavery, segregation, and racial profiling. Indeed, part of a law school's admissions policy should be to admit applicants of all races, particularly those who have been subject to discrimination, hardship, and unequal opportunity. The problem is how the authors propose accomplishing this task.
For example, eliminating scoring disparities is certainly a good thing, but not when it amounts to putting the cart before the horse. How can the authors claim that the Shultz-Zedeck test is a reliable predictor of professional success when validity of that test depends on achieving pre-determined outcomes? If, when administering the test, the authors discovered that a set of questions correlated strongly with one or more of the Effectiveness Factors, but resulted in a scoring disparity among races that is similar to the LSAT, would they eliminate that question? If the answer is yes, then an otherwise-legitimate question--and the definition of merit itself--would be rejected for a reason that has nothing to do with lawyer competence. Furthermore, the authors' suggestion that first-year grades are "discriminatory proxies" for professional competence (55) insults every professor who spends hours trying to give students grades that honestly reflect their performance.
As discussed below, in an era when clients have refused to pay for the hours billed by first year associates, law firms have implemented formal training programs for new associates, and attorneys criticize graduates' writing abilities, the authors develop a test that does not directly measure these abilities. The authors' proposed admission test relies in part upon tests designed by industrial psychologists that strive to predict professional competence in a particular field. (56) The authors administered a battery of questions and sample tests to approximately 1,100 participants. (57) The tests were comprised of thirty questions and took about an hour to complete. (58) A sample question is below:
You learn that a co-worker, Angela, whom you helped train for the job, copied some confidential and proprietary information from the company's files. What would you do?
(A) Tell Angela what I learned and that she should destroy the information before she gets caught.
(B) Anonymously report Angela to management.
(C) Report Angela to management and after disciplinary action has been taken, tell Angela that I'm the one that did so.
(D) Threaten to report Angela unless she destroys the information
(E) Do nothing (59)
After reviewing the results, the authors concluded that the Shultz-Zedeck test "reveal[ed] aptitudes ... and behaviors that correlate with the essential skills and competencies required for [the legal profession]." (60) Although some questions were not helpful, others demonstrated "real potential to create admissions tests capable of predicting lawyering performance." (61) In fact, a number of questions "predicted participants' competency levels for almost all [twenty-six] [Effectiveness [F]actors," (62) while LSAT scores and grade point averages "were not particularly useful for predicting lawyer performance on the large majority of the [twenty-six] [Effectiveness [F]actors." (63)
The authors suggest that "[s]chools could begin to use the tests now" in their admissions process, or wait for further research to replicate the study's results. (64) Several problems with the Shultz-Zedeck test, however, suggest that it should not replace the LSAT in the admissions process. These problems include a misleading correlation, subjectivity in scoring, and the failure to make meaningful distinctions based on skill level.
1. THE CORRELATION ARGUMENT IS MISLEADING
The authors mercilessly criticize the LSAT, but go to great lengths to argue that the Shultz-Zedeck test correlates better with professional competence than the LSAT. That may be true, but it is a red herring. The LSAT assesses critical thinking, verbal reasoning, and writing ability. It does not test for listening skills or assess whether an applicant works well with others. Perhaps the LSAT should test for some or all of the Effectiveness Factors, but it does not. The authors' argument is like saying that people should prefer McDonald's over Macy's because McDonald's is more likely to satisfy their hunger. That is true, but not because Macy's food is bad. It is because Macy's sells clothes, not cheeseburgers. To illustrate this idea, compare the preceding question on the Shultz-Zedeck test to a question on the logical reasoning portion of the LSAT test:
Political scientist: As a political system, democracy does not promote political freedom. There are historical examples of democracies that ultimately resulted in some of the most oppressive societies. Likewise, there have been enlightened despotisms and oligarchies that have provided a remarkable level of political freedom to their subjects.
The reasoning in the political scientist's argument is flawed because it
(A) confuses the conditions necessary for political freedom with the conditions sufficient to bring it about
(B) fails to consider that a substantial increase in the level of political freedom might cause a society to become more democratic
(C) appeals to historical examples that are irrelevant to the causal claim being made
(D) overlooks the possibility that democracy promotes political freedom without being necessary or sufficient by itself to produce it
(E) bases its historical case on a personal point of view (65)
Also, consider the question below, tested on the analytical reasoning portion of the LSAT:
A charitable foundation awards grants in exactly four areas--medical services, theater arts, wildlife preservation, and youth services--each grant being in one of these areas. One or more grants are awarded in each of the four quarters of a calendar year. Additionally, over the course of a calendar year, the following must obtain:
(A) Grants are awarded in all four areas.
(B) No more than six grants are awarded.
(C) No grants in the same area are awarded in the same quarter or in consecutive quarters.
(D) Exactly two medical services grants are awarded.
(E) A wildlife preservation grant is awarded in the second quarter.
If a wildlife preservation grant and a youth services grant are awarded in the same quarter of a particular calendar year, then any of the following could be true that year EXCEPT:
(A) A medical services grant is awarded in the second quarter.
(B) A theater arts grant is awarded in the first quarter.
(C) A theater arts grant is awarded in the second quarter.
(D) A wildlife preservation grant is awarded in the fourth quarter.
(E) A youth services grant is awarded in the third quarter. (66)
These questions assess critical thinking skills, which are essential to solving complex legal problems, counseling clients, and persuading courts. Furthermore, there is a relatively strong correlation between a law school's mean LSAT score overall bar passage rate. (67) The authors, however, largely exclude bar passage rate from their discussion. Additionally, the authors claim that their test had a moderately stronger correlation to analytical ability and writing skills than the LSAT. (68) Still, that statement begs the question--how can a test that fails to ask applicants to draft a single sentence or include questions on writing composition possibly tell law schools whether an applicant is a good writer?
2. SUBJECTIVITY IN SCORING AND THE LACK OF MEANINGFUL DISTINCTIONS BETWEEN CANDIDATES
When the primary purpose of a standardized test is to assess situational judgment, there is a high risk that the test-taker's responses--and the grading criteria--will depend on subjective factors. In addition, there is a substantial risk that such a test will not meaningfully distinguish between candidates of differing skills levels in a variety of areas related to effective lawyering. The Shultz-Zedeck test is a textbook example of this problem. For example, in the authors' previously mentioned sample question, the difference between answer choices (B) ("Anonymously report Angela to management") and (C) ("Report Angela to management and after disciplinary action has been taken, tell Angela that I'm the one that did so") may depend on context and subjectivity. (69) As a company policy, maintaining anonymity would encourage employees to report wrongdoing, but whether employees should reveal their identity to a co-worker depends, in part, on factors such as the relationship between the employee and Angela, personal values, and the extent, if any, of suspicion about the employee's role in the disclosure. Some might choose answer (D) if they believed that Angela inadvertently copied this information and did not intend to use the information for improper purposes. Thus, the "correct" answer depends on subjective and context-specific factors that in themselves are not necessarily right or wrong. The same argument cannot be made against the LSAT because it tests logical reasoning skills, and there is at least a "best," if not indisputably correct, answer. Consider the following example:
A university library budget committee must reduce exactly five of eight areas of expenditure--G, L, M, N, P, R, S, and W--in accordance with the following conditions:
If both G and S are reduced, W is also reduced.
If N is reduced, neither R nor S is reduced.
If P is reduced, L is not reduced.
Of the three areas L, M, and R, exactly two are reduced.
If both M and R are reduced, which one of the following is a pair of areas neither of which could be reduced?
(A) G, L
(C) L, N
(E) P, S (70)
There is no dispute about the answer: (C). It is simple math.
Furthermore, a substantial number of the Shultz-Zedeck test's twenty-six lawyer competencies, many of which assess intangible factors such as listening skills and relationships, are vulnerable to subjectivity in question design and scoring. Whether an applicant is an average or above average listener, for example, requires the test creators to rely on subjective assessments that may not be applicable across contexts or among test-takers. Listening skills that might be "average" in a client interview, for example, may be "poor" in a deposition or cross-examination. Test-takers of different cultural and geographic backgrounds may define ideal listening skills in different ways, which makes it difficult to arrive at objectively correct answers.
The scoring criteria--poor, below average, average, above average, and outstanding--also lend themselves to subjectivity and may not accurately reflect or even capture marked differences in various skill sets. For example, LSAT scores of 165 and 150 suggest differences in analytical ability. (71) What is the extent of the difference between "average" and "above" average? Reviewers might grade responses in a particular assessment as "average" and "above average" depending upon their prior experience, subjective values, or generalities of the questions. Indeed, many questions are broadly phrased and do not include facts that would clarify the context, such as the intent of the actor and the consequences of particular actions. Thus, the test-taker may arrive at an answer by making assumptions or inferences. For example, the employee should maintain anonymity if disclosing his identity would ruin his relationship with the co-worker and should not report it at all if Angela's action were inadvertent.
Concededly, the experience of industrial psychologists and the question design (and norming) process can account for and thus alleviate these problems. This may result in easier questions that do not introduce complexity or nuance into specific contexts. Thus, larger percentages of test-takers would get a higher percentage of answers correct, which would separate people at the margins but would not make finer distinctions between the lower middle to the upper half of test takers. (72) A narrow bell curve with a small standard deviation would result, placing a limited number of test-takers at the extremes and the remainder in an undifferentiated middle. (73) As questions get easier, the test less accurately measures skill gradations.
In addition, the authors do not quantify or rank factors based on their relevance or importance to law practice. For example, the authors do not discuss whether analytical ability and writing skills are more central to professional competence and thus should be weighed more heavily than, for example, listening skills and community service. Although effective listening skills are important, reasoning and research skills, at least for the new attorney, are essential. Therefore, it would be tempting to admit an applicant who scored "below average" on the analytical reasoning category of this test, but who received high scores on sections measuring listening skills, stress management, ability "to see the world through the eyes of others," community involvement, and honesty. In addition, soft skills are coachable, whereas cognitive ability is, to a degree, inherited. (74) Thus, a student with strong critical thinking skills can improve soft skills, while a creative student with good judgment can develop analytical ability, but only to an extent. In some cases, the extent to which one can improve analytical skills may not be sufficient to enable academic or professional success.
To be sure, lawyer competence is not established simply because a person scores "above average" on a broad list of factors considered necessary for law practice. The authors' test relies on personality and situational judgment tests to measure noncognitive skills and uses the results as a proxy for assessing cognitive ability. In the final analysis, what do these tests reveal about an applicant's ability to succeed in law school? The answer is fairly obvious: less than the LSAT and undergraduate GPA. In fact, because the authors' definition of merit depends on achieving equal racial outcomes, they must de-emphasize or even eliminate the principled and direct consideration of factors that the Carnegie Foundation and American Bar Association have recognized as vital for lawyer competency. (75)
Indeed, if "non-academic" standards governed the admission process, then how could the current law school curriculum, which focuses heavily on analytical skills training, case analysis, and logical reasoning, be justified? How could a hell-shaped curve that ranks students based on their performance on rigorous examinations under timed conditions be reliable? For that matter, how could the bar exam, with its focus on critical thinking and substantive legal knowledge, be rationalized? Most importantly, how could an admissions office predict which applicants are more likely to be competent lawyers without assessing their chances of succeeding in a rigorous program of legal education?
A broad and inclusive middle range aligns with the authors' objectives--to admit more applicants who receive extremely low LSAT scores (e.g., the twentieth percentile). The Shultz-Zedeck test correlates with the LSAT and erases disparate effects by expanding the middle and sparsely populating the top and bottom ranges. Consequently, the test establishes a minimum level of professional competence based on factors that correlate with, but do not directly assess, analytical ability. Hence, while the test identifies applicants who are competent in various professional skills, it blurs distinctions based on analytical, logical reasoning, and writing skills, which are highly relevant to lawyer competence. In other words, the authors' situational judgment tests can play a specific role in the admission process, but only as a supplement to standardized assessments. Furthermore, given that the Shultz-Zedeck test assesses competence to practice law, its value would be highest at the employee selection, not admissions, stage.
The authors acknowledge that the Shultz-Zedeck test could supplement the LSAT "if ... a school wanted to maintain a threshold level of academic success among its students...." (76) One hopes that law schools are not wavering in the commitment to enrolling a student body that is likely to succeed academically. If lawyers do not know how to make valid arguments, synthesize case law, and draft a compelling narrative, they might find themselves out of a job--and steeped in non-dischargeable debt.
B. SUCCESS DEPENDS ON THE QUALITY OF EMPLOYMENT OUTCOMES
Instead of relying on "traditional measures of success: bar passage, salary, or time passed before achieving partner status," (77) the authors rely on measures of professional competence. That measure is valuable, but before it can be successful, lawyering competency must lead to successful employment outcomes. Whether opportunity translates into a positive outcome, however, depends on the quality of that outcome. Although the definition of "positive outcome" is subjective, most would agree that law graduates should be able to obtain full-time employment after they graduate, and earn a salary that justifies the student's debt load. A racially inclusive profession should not be defined simply as one in which a higher percentage of lawyers are members of minority groups. The profession should promote racial inclusivity by striving to produce minority lawyers who enter the profession with full-time positions that require a juris doctor and earn a salary that justifies the cost of tuition.
The quality of outcomes, which differs widely among law graduates, depends on whether graduates obtain jobs in the private or public sector, where the mean starting salaries are $78,653, and $42,000, respectively. (78) The table below shows employment outcomes after nine months for the class of 2012.
Only 16% of recent graduates were either hired at large law firms (those with over 100 attorneys) that offered six-figure starting salaries or obtained federal judicial clerkships that commonly lead to such jobs. (80) Of course, the value of a law degree over the course of a lawyer's career far exceeds the cost of attending law school. (81) Furthermore, data concerning the percentage of lawyers who remain in the profession over a period of five or ten years are not readily available. (82) Although much has been made of producing graduates who serve the public interest, (83) the median income of entry-level legal services positions is $42,000. (84) Such income does not compare to the salaries that their peers receive in the private sector. Furthermore, and as stated above, income-based repayment may help students in the short term, but a hefty tax bill awaits them after their loans are forgiven. (85) Thus, graduates who cannot obtain full-time employment often find themselves staring at a six-figure debt and a future that appears less promising than it was before they even considered attending law school. Indeed, only 57% of the law students graduating in 2013 obtained fulltime employment in positions requiring a juris doctorate and bar passage. (86) At some schools, the percentage is lower.
It is not clear yet whether the recent drop in law school applications is due to cyclical or structural changes or whether advances in technology will have a permanent effect on the provision of and access to legal services. What is clear is that too many law graduates are failing to find jobs.
Additionally, the authors' reliance on the psychology of personnel to design and administer an admissions test fails to consider the practice of law as a separate and learned discipline. Indeed, unlike most professions, the practice of law requires attorneys to interpret and apply complex legal rules in a variety of contexts. Lawyers should be skilled at analyzing and synthesizing precedent, distinguishing unfavorable facts and case law, and making persuasive arguments in the light of unsettled law. Simply stated, the law is, in substantial part, a cognitive profession that rewards outstanding legal analysis.
C. THE AUTHORS DEFINE DIVERSITY TOO NARROWLY
Defining diversity based primarily on race devalues human beings. Race, ethnicity, gender, socioeconomic status, and sexual orientation are crude proxies for more personal evaluations of an applicant's background, including substantial hardships and personal struggles the applicant has overcome. For example, mental illness, abuse, addiction, disability, and trauma are factors evidencing the overcoming of adversity, and reveal more about an applicant's character and intangible qualities than the color of their skin. Indeed, the value of diversity results, at least in part, from environmental and individual experiences, not merely immutable characteristics. (88)
D. THE LSAT SCORE GAP REFLECTS POVERTY, INEQUALITY, AND LACK OF EDUCATIONAL OPPORTUNITY
The authors' argument that law schools "admit students based on standards ... that, while not discriminatory in a legal sense, undeniably favor white applicants" (89) does not address the deeper problem driving the LSAT scoring gap: poverty and inequality. African-Americans and other minority groups have suffered a long and intolerable history of discrimination. This has deprived them of, among other things, political, social, economic, and educational equality. In addition, many African-American families continue to live in poverty, send their children to inadequately funded schools, lack access to legal services, and are targets of law enforcement. (90) Economic inequality is one of the biggest injustices of our time. Law schools cannot solve every problem facing society, but they can and should develop programs that maximize the learning and employment outcomes of graduates who are at risk for failing the bar exam. Part IV discusses several aspects of this approach.
IV. CONNECTING MERIT AND DIVERSITY TO RIGOROUS STANDARDS
What can law schools do to ensure a diverse student body but retain a rigorous program of legal education? The first thing is to avoid adherence to rigid cutoff scores that refuse to admit applicants under a certain GPA or LSAT score, or a combined "index" that takes into account both factors. Instead, law schools should take a holistic approach that considers a variety of tangible and intangible factors. At the same time, law schools should not admit applicants with LSAT scores under 140 and GPAs under 2.0, absent substantial evidence that they possess the ability to succeed in law school and pass the bar exam. If law schools do admit such applicants, they should--from day one-offer comprehensive academic support and bar preparation services, use formative and summative assessments, and eschew grade inflation. If these applicants are dismissed after the first year, a substantial portion (if not all) of their tuition should be refunded.
Depending on the credentials of their entering class, law schools should commit to a rigorous course of legal study that includes:
(1) Dismissing students who do not perform to a minimum level of competency after their first year;
(2) Implementing a robust academic support program;
(3) Offering bar examination preparation courses or workshops;
(4) Adopting policies against grade inflation;
(5) Offering formative and summative assessments;
(6) Lowering tuition for students with marginal credentials;
(7) Creating a hybrid curriculum that allows non-traditional students to take up to twelve credits online, thus reducing costs; and
(8) Emphasizing practical skills training, especially legal writing.
Some might mock the idea that applicants with very low credentials should receive tuition discounts equal to their more qualified peers, and claim that this approach renders the concept of merit non-existent. A substantial number of marginally qualified applicants will be academically dismissed after their first year. Should we simply allow them to walk out the door after two semesters with nothing but non-dischargeable debt that make take years to repay? Perhaps most importantly, should law schools admit applicants when they know, based on their LSAT scores and undergraduate grade point averages, that at least a portion will not make it past the first year? The answer is no. Giving qualified applicants a chance to realize their dream of becoming a lawyer is different than giving unqualified applicants false hopes. And charging full sticker price to these applicants makes law schools seems more like the money-hungry, numbers-driven, and ethically challenged corporate executives that sparked the Occupy Wall Street Movement.
Furthermore, law schools that adopt the authors' approach must maintain, if not increase, academic rigor. The North Carolina Central University School of Law provides an excellent example of this approach. The median GPA and LSAT of their entering class in 2014 was 3.24 and 144, respectively, but the in state tuition is a meager $11,708,91 which is far lower than the average nationally--$40,585 for private schools, and $23,590 for public schools. (92) North Carolina Central's attrition rate is 28.6%, and their bar passage rate is 66%. (93)
North Carolina Central's tuition is among the lowest in the country. Although the school accepts a substantial number of applicants with less impressive credentials, its attrition rate indicates that students are subject to a demanding program of legal education. In other words, North Carolina Central has a program of legal education that balances opportunity with fairness. It identifies students who are at high risk of failing the bar exam, and removes students who do not perform competently after their first year.
If law schools accept marginally qualified applicants, they have an accompanying commitment to dismiss those who do not perform competently (e.g., GPA of 2.0 after the first year). Furthermore, students who perform extremely poorly after their first semester (e.g., GPA of 1.0 and lower) and thus have little or no chance of raising their GPA to the minimum requirement should be dismissed after that semester. Otherwise, the schools are simply taking their money. This is the very action that has sparked criticism of legal education throughout the country: giving people false hope.
The model of North Carolina Central University School of Law would fit the authors' objectives of ensuring more diversity in the profession without focusing solely on achieving equal outcomes without regard to academic rigor. The table below shows the attrition rates among a sample of lower-ranked law schools.
The average first-year attrition rate for all law schools is 2.8%. (94)
B. ACADEMIC SUPPORT AND MENTORING
Law schools that admit students with lower tests scores and GPAs should provide a robust academic support program throughout all three years of law school that focuses on the following: (1) case briefing; (2) legal analysis; (3) exam-taking strategies (essay and multiple choice); and (4) time management. Students should take numerous practice examinations in a variety of subject areas, receive individual feedback, and have opportunities to rewrite assignments. Professors should also serve as academic mentors for all students and offer, among other things, individual instruction where necessary, as well as advice regarding course selection.
C. ASSESSMENT-BASED GRADING
To maximize learning outcomes, law schools should also use formative and summative assessments to identify at-risk students, monitor student progress, and maximize learning outcomes.
D. EMPHASIS ON PRACTICAL SKILLS AND LEGAL WRITING
Reasoning and writing are among the most important skills that law students must acquire before beginning their legal careers. (95) Law skills, particularly those of marginally qualified students, should be taught in courses that include extensive instruction in legal writing, research, and reasoning, both in the doctrinal curriculum and through an extended legal writing curriculum that spans most, if not all, semesters of school. The authors are certainly correct that competent lawyering requires more than just logic and reasoning skills. However, these are essential skills and arguably, the most important of the skills needed to ensure that students are prepared to practice law upon graduation.
E. PREPARATION FOR THE BAR EXAMINATION
Students who enter law school with lower academic credentials are at risk of failing the bar examination. Thus, law schools should require students to attend workshops or take courses that focus on the bar exam. Students should have the opportunity to practice Multi-State Bar Examination style questions in all subject areas and review essay questions administered on prior examinations. (96) Nevertheless, no law school should transform itself into a glorified bar examination review course. The purpose of a legal education is to train students to think, write, and counsel as lawyers, not to be expert test-takers.
F. LOWER TUITION
Some students will not compete for jobs that have high starting salaries, particularly if they fall within the lower half of their law school class, have attended lower-ranked law schools, or have devoted a substantial portion of their careers to public interest work. Thus, schools with low employment outcomes or modest average starting salaries should link tuition costs to those outcomes. Additionally, law schools should offer reduced tuition to students whose entering credentials, such as LSAT scores below 142 and grade point averages below 2.7, suggest that they may be at risk for failing the bar exam or struggling to obtain employment. The worst thing any law school could do is admit an applicant regardless of race when the prospects for meaningful and stable employment are limited--and charge that applicant full tuition. This is not simply a matter of policy. It is one of values, ethics, and fairness. Law schools should decide if their mission is simply to fill seats, or to fill the seats with students who can pass the bar exam and one day look back with gratitude to the alma mater.
In addition, the Shultz-Zedeck test can be an appropriate admissions assessment in alternative legal programs for non-lawyers who work with attorneys or in areas such as a federal agency where legal knowledge is helpful. (97) Along with personality and emotional intelligence assessments, the Shultz-Zedeck test matches the goals of these programs and the expectations of their applicants, which are to acquire and apply legal knowledge in various disciplines. (98) In the law school admissions context, situational judgment tests should, at best, supplement, not replace, the LSAT, because academic success and cognitive ability matter.
Legal educators should search for ways to move away from, not toward, race-conscious policies. Diversity in higher education is an important educational--and societal--goal. Members of different races, ethnicities, and socioeconomic, geographic, and cultural backgrounds bring perspectives into the classroom that homogeneity cannot. (99) These diverse members enrich classroom dialogue and illuminate the complexities of legal and social problems. Diversity also ameliorates the effects of the long history of discrimination against minority groups who did not have equal opportunities in or access to the legal profession. African-Americans and other minority groups have been subject to substantial and pervasive inequality, and affirmative action has afforded African-Americans equal opportunities in education and employment.
Diversifying the legal profession requires a commitment to student-centeredness, not skin color, and to standards, not situational judgment tests. The solution to the crisis facing legal education involves lowering tuition, improving employment outcomes, and being honest with prospective and current students about their ability to succeed in law practice. This requires law schools to maintain rigorous standards-and to recognize that quality, not quantity, is the best guarantor of success.
Adam Lamparello, Assistant Professor of Law, Indiana Tech Law School.
(1.) See Paul Campos, The Law School Scam, ATLANTIC (Aug. 13, 2014), http://www.theatlantic.com/features/archive/2014/08/the-law-school-scam/375069/ (using Frakt's experience at Florida Coastal to attack for-profit law schools); David Frakt, David Frakt on His Shorter Than Expected Presentation at Florida Coastal School of Law, FAc. LOUNGE (Aug. 18, 2014, 9:28 AM), http://www.thefacultylounge. org/2014/08/david-frakt-on-his-shorter-than-expected-presentation-at-floridacoastals chool-of-law.html (responding to the conclusions of Campos's article).
(2.) Frakt, supra note 1.
(3.) See David Frakt, David Frakt Responds to Dean Conison at Charlotte School of Law, FAC. LOUNGE (Dec. 23, 2014, 11:23 PM), http://www.thefacultylounge.org/201 4/12/david-frakt-responds-to-dean-conison-of-charlotte-school-of-law.html.
(5.) See Campos, supra note 1.
(6.) Kirsten Holmquist et al., Measuring Merit: The Shultz-Zedeck Research on Law School Admissions, 63 J. LEGAL EDUC. 565 (2014), available at http://www.swlaw.edu/pdfs/le/jle634holmquist.pdf.
(7.) N.C. Cent. Univ. Sch. of Law, Standard 509 Information Report 1-2 (2014), http://abarequireddisclosures.org (Select "North Carolina Central University" and 2014).
(8.) Nicholas Georgakopoulos, Bar Passage: GPA and LSAT, Not Bar Reviews 10 (Robert H. McKinney Sch. of Law, Legal Studies Research Paper No. 2013-30, 2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=2308341 (analyzing data from two sittings of the bar exam for the graduating class at a law school).
(9.) See David Frakt, Parsing the Bloomberg Businessweek Article on Law School Admissions, FAC. LOUNGE (Jan. 8, 2015, 8:10 AM), http://www.thefacultylounge.org/ 2015/01/parsing-the-bloomberg-businessweek-article-and-the-ncbe-report.html (pointing out that the drop in scores at the twenty-fifth percentile of incoming students for some bottom tier schools is cause for some alarm); Natalie Kitroeff, Getting into Law Schools is Easier Than It Used to Be, and That's Not Good, BLOOMBERG BUSINESSWEEK (Jan. 6, 2015, 4:45 AM), http://www.businessweek.coml articles/2015-01-06/getting-into-law-school-is-easier-than-it-used-to-be-and-thatsnotgood (noting the drop in LSAT scores at the bottom of the class but performing only cursory analysis).
(10.) See Erica Moeser, President's Page, BAR EXAMINER, Dec. 2014, at 4, 7-11, available at http://ncbex.org/assets/media-files/Bar-Examiner/articles/2014/830414- abridged.pdf; see also Frakt, supra note 9 (noting that 24% of the incoming class at a school with a low twenty-fifth percentile LSAT score must have scored even lower).
(11.) See id. (noting that the reported mean LSAT score "dropped a modest amount for those completing the first year (from 157.7 to 157.4))."
(12.) Memorandum from Erica Moeser, President, Nat'l Conf. of Bar Exam'rs, to Law Sch. Deans 1 (Oct. 23, 2014), available at http://online.wsj.com/public/resources/ documents/2014_1110_moesermemo.pdf.
(13.) See Deborah J. Merritt, ExamSoft: New Evidence from NCBE, LAW SCH. CAFE (July 9, 2015), http://www.lawschoolcafe.org/thread/examsoft-new-evidence-fromncbe/.
(14.) Letter from Erica Moeser, President, Nat'l Conf. of Bar Exam'rs, to Kathryn R.L. Rand, Dean, Univ. of N.D. Sch. of Law 1 (Dec. 18, 2014), available at http://taxprof.typepad.com/files/ncbe.pdf.
(15.) See Frakt, supra note 9.
(16.) See Daniel B. Rodriguez, President, Ass'n of Am. Law Schs., Opening Remarks at First Meeting of the AALS House of Representatives (Jan 3, 2015), available at http://www.law.northwestern.edu/about/news/documents/Daniel-Rodrigu ez-2015-AALS-Address.pdf.
(17.) See Letter from Nicholas W. Allard, Dean, Brooklyn Law Sch., to Erica Moeser, President, Nat'l Conf. of Bar Exam'rs 2 (Nov. 10, 2014), available at http://online.wsj.com/public/resources/documents/2014-1110_allardmemo.pdf; see also Letter from Kathryn R.L. Rand, Dean, Univ. of N.D. Sch. of Law, to Erica Moeser, President, Nat'l Conf. of Bar Exam'rs (Nov. 25, 2014), available at http://online.wsj.com/public/resources/documents/2014_1126_randletter.pdf (including a statement signed by seventy-nine law school deans requesting that the NCBE examine the July 2014 test and the MBE in general).
(18.) See, e.g., Gary Rosin, Interpretation 301-6: Low LSATs and High "Cut" Scores, FAC. LOUNGE (May 20, 2011, 3:24 PM), http://www.thefacultylounge.org/2011/05/inte rpretation-301-6-low-lsats-and-high-cut-scores.html.
(19.) See Marni Becker-Avin, Developing Lawyers' "Soft Skills"-A Challenge for the New Era in Legal Services, LAW PRAC. TODAY (May 2014), http://www.americanbar.org/content/newsletter/publications/law-practice today-ho meflptarchives/2014/mayl4/developing-lawyers-soft-skills-a-challenge-for-the-newera- in-legal-services.html (discussing the importance of communication to foster successful client relationships).
(20.) See Vasant M. Kamath, Reports Shows LSAT Scoring Gap, HARV. CRIMSON (Oct. 2, 1998), http://www.thecrimson.com/article/1998/10/2/report-shows-lsat-scoregap- pa/ (reporting a difference of 9.3 points).
(21.) Shawn P. O'Connor, Learn the Five Deciding Factors in Law School Admissions, LAW ADMISSIONS LOWDOWN (Nov. 12, 2012, 10:00 AM), http://www.usnews.com/educationblogs/law-admissions-lowdown/2012/11/12/learnth e-5-deciding-factors-in-law-school-admissions.
(22.) See Law Sch. Admissions Council, Cautionary Policies Concerning LSAT Scores and Related Services 1, LSAC.ORG (July 2014), http://www.lsac.org/docs/defaul t-source/publications-(lsac-resources)/cautionarypolicies.pdf.
(23.) See Georgakopoulos, supra note 8, at 10-12; see also Paul Caron, Law School GPA Trumps LSAT, Undergraduate GPA, and Bar Review Courses as Bar Exam Predictor, TAXPROF BLOG (Sept. 13, 2013), http://taxprof.typepad.com/taxprof blog/2 013/09/law-school-gpa-.html (summarizing the Georgakopoulos article).
(24.) Holmquist et al., supra note 6, at 577, 582-83.
(25.) See Marjorie M. Shultz & Sheldon Zedeck, Twenty-Six Lawyering Effectiveness Factors, GOLDEN GATE UNIV. ALUMNI, http://alumni.ggu.edu/Document .Doc?id=92 (last visited May 19, 2015).
(26.) Holmquist et al., supra note 6, at 577.
(27.) Id. at 579-89.
(28.) Id. at 580.
(29.) Id. at 568, 580; see also LINDA F. WRIGHTMAN, LAW SCH. ADMISSIONS COUNCIL, LSAC NATIONAL BAR PASSAGE LONGITUDINAL STUDY 50 (1998), available at http://www.unc.eduedp/pdf/NLBPS.pdf (revealing an eight-point gap between Caucasian and African-American test-takers under the pre-1991 LSAT scoring system that ranged from ten to forty-eight).
(30.) Holmquist et al., supra note 6, at 584.
(31.) Id. at 565.
(32.) See Georgakopoulos, supra note 8, at 10-11.
(33.) Section of Legal Educ. & Admissions to the Bar, Explanation of Changes, AM. BAR ASS'N 16 (2014), http://www.americanbar.org/content/dam/aba/administrative/le gal-education andadmissions-to the bar/council-reportsandresolutions/201408_ explanation-changes.authcheckdam.pdf (explaining the changes made in the 2014- 2015 ABA Standards for Approval of Law Schools).
(34.) Holmquist, supra note 6, at 582 (emphasis added).
(35.) See Georgakopoulos, supra note 8, at 10.
(36.) WRIGHTMAN, supra note 29, at 37.
(37.) Holmquist et al., supra note 6, at 583.
(38.) Holmquist et al., supra note 6, at 567 (emphasis added).
(39.) Id. at 566.
(40.) Id. at 582 (emphasis added).
(41.) Holmquist et al., supra note 6, at 577 (emphasis added).
(42.) Id. at 584.
(43.) See, e.g., Catherine Rampell, The Lawyer Surplus, State by State, ECONOMIX (June 27, 2011, 11:00 AM), http://economix.blogs.nytimes.comI2011/06/27/the-lawyersurplus- state-by-state/.
(44.) See Law Sch. Admissions Council, supra note 21, at 1.
(45.) Mitch et al., Financial Help Puts Public Interest Careers within Reach, WIs. LAW, Oct. 2008, at 25, 26-27 (2008) (describing public interest loan forgiveness programs and noting that "graduates make 120 monthly student loan payments (ten years of payments) ... while working full-time in a public interest, government, or nonprofit setting, after which time their loans are forgiven").
(46.) See U.S. Dep't of Educ., Income-Driven Repayment Plans for Federal Student Loans, FED. STUDENT AID (July 2014), https://studentaid.ed.gov/sites/default/files/inc ome-driven-repayment.pdf; U.S. Dep't of Educ., Public Service Loan Forgiveness, FED. STUDENT AID, https://studentaid.ed.gov/sa/repay-loans/forgiveness-cancellation public-service (last visited May 19, 2015).
(47.) See Rebecca Coleman, The Unforeseen Downside of Income Based Repayment, LOANS.ORG (Dec. 19, 2012, 2:55 PM), http:/Jloans.org/student/articles/unforeseendownside- income-based-repayment.
(48.) U.S. Dep't of Educ., Income-Driven Plans, FED. STUDENT AID, https://studenta id.ed.gov/sa/repay-loans/understand/plans/income-driven/ (last visited June 13, 2015).
(49.) Coleman, supra note 47.
(50.) Holmquist et al., supra note 6, at 565, 568.
(51.) See Georgakopoulos, supra note 8, at 11.
(52.) See WRIGHTMAN, supra note 29, at 30.
(53.) LSAT Percentiles Table, CAMBRIDGE LSAT, http://www.cambridgelsat.comi resources/data/lsat-percentiles-table/ (last visited June 13, 2015).
(54.) Holmquist et al., supra note 6, at 584.
(55.) Holmquist et al., supra note 6, at 567.
(56.) Id. at 576-77.
(57.) Id. at 579.
(59.) Holmquist et al., supra note 6, at 579.
(60.) Id. at 576.
(61.) Id. at 579.
(62.) Id. at 580.
(64.) Holmquist et al., supra note 6, at 582.
(65.) See Law Sch. Admissions Council, Logical Reasoning Questions, LSAC.ORG, http://www.lsac.org/jd/lsat/prep/logical-reasoning (last visited May 19, 2015).
(66.) Law Sch. Admissions Council, Analytical Reasoning Questions, LSAC.ORG, http://www.lsac.org/jd/lsat/prep/analytical-reasoning (last visited June 12, 2015).
(67.) See Rosin, supra note 18.
(68.) Holmquist et al., supra note 6, at 580.
(69.) Holmquist et al., supra note 6, at 579.
(70.) Law Sch. Admissions Council, supra note 65.
(71.) This is not to say that applicants must score a 150 on the LSAT or that law schools should adhere to an LSAT cutoff score. It is to say that, based on the empirical evidence, when an applicant's score dips below 140, in the absence of other evidence, such as a moderately high grade point average, disability, or history of poor standardized test taking, the applicant may struggle to succeed in law school or pass the bar examination.
(72.) See, e.g., Richard Pogge, A Brief Note About Grade Statistics or How the Curve Is Computed, OHIO ST. U., http://www.astronomy.ohio-state.edu/-pogge/Astl62/Quiz zes/curve.html (last visited Sept. 11, 2015) ("A large spread in a grade curve means that the scores were spread over a large range, making the curve wide and shallow. A large 'tail' of low scores will also result in a larger spread in scores. A tall, narrow curve (small spread) means most people scored pretty close to the mean grade.").
(74.) See, e.g., Ruth Williams, Inherited Intelligence, SCIENTIST (July 10, 2014), http://www.the-scientist.com/?articles.view/articleNo/40459/title/Inherited-Intelligen ce/ (citing W.D. Hopkins et al., Chimpanzee Intelligence Is Heritable, 24 CURRENT BIOLOGY 1649 (2014)).
(75.) See TASK FORCE ON LAW SCH. & THE PROFESSION, AM. BAR ASS'N, LEGAL EDUCATION AND PROFESSIONAL DEVELOPMENT-AN EDUCATIONAL CONTINUUM 135 (1992) (listing the factors), available at http://www.americanbar.org/content/dam/aba /publications/misc/legal education/2013_legaleducation-and professional development_maccrate- report%29.authcheckdam.pdf; see also WILLIAM M. SULLIVAN ET AL., CARNEGIE FOUND. FOR THE ADVANCEMENT OF TEACHING, EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW 13-14 (2007) (identifying the development of legal analysis, practical skill, and professional identity as the three central elements of legal education).
(76.) Holmquist et al., supra note 6, at 582 (emphasis added).
(77.) Id. at 577 (emphasis added).
(78.) See Press Release, Nat'l Ass'n for Law Placement, Median Private Practice Starting Salaries for the Class of 2011 Continue to Plunge as Jobs Continue to Erode (July 12, 2012), available at http://www.nalp.org/classof2011_salpressrel; Nat'l Ass'n for Law Placement, New Findings on Salaries for Public Interest Attorneys, NALP (Sept. 2010), http://www.nalp.org/sept201Opubintsal [hereinafter Nat'l Ass'n for Law Placement, New Findings].
(79.) See Nat'l Ass'n for Law Placement, Class of 2011 Has Lowest Employment Rate Since Class of 1994, NALP (July 2012), http://www.nalp.org/0712research; Nat'l Ass'n for Law Placement, Class of 2011 Law School Grads Face Worst Law School Job Market Yet-Less than Half Find Jobs in Private Practice, NALP (2012), http://www.nalp.org/uploads/Classof2011SelectedFindings.pdf; Nat'l Ass'n for Law Placement, The NALP Salary Curve for the Class of 2011, NALP (July 2012), http://www.nalp.org/salarycurveclassof20ll; The Law School Tuition Crisis One- Pager, NAT'L LAW. GUILD, http://www.nlg.org/sites/default/files/Law%2School%20T uition%20Crisis%200ne%20Pager.pdf (last visited June 13, 2015).
(80.) See Campos, supra note 1. Of course, starting salaries depend on geographic location. In New York, the median starting salary is $160,000, while the median starting salary in Florida is $60,000. Nat'l Ass'n for Law Placement, Reported Salaries by State for Full-Time Jobs in Private Practice Taken by the Class of 2011, NALP (January 2013), http://www.nalp.org/sal-by-state-forj'ftjobs-in-privpract-cla ss of 2011 #all_priv-pract.
(81.) Michael Simkovic & Frank McIntyre, The Economic Value of a Law Degree, 43 J. LEGAL STUD. 249, 280 (2014).
(82.) Simkovic & McIntyre, supra note 81, at 251-52.
(83.) See, e.g., David Hall, The Law School's Role in Cultivating a Commitment to Pro Bono, BOSTON B.J., June 1998, at 19, 19 ("[T]he ideals of pro bono and public service must be instilled within lawyers at a very early stage in their development.").
(84.) Nat'l Ass'n for Law Placement, New Findings, supra note 78.
(85.) See Coleman, supra note 47; Mitch et al., supra note 45, at 25-27 (describing the mechanics of income-driven repayment and public service loan forgiveness programs).
(86.) See Press Release, Am. Bar Ass'n, American Bar Association Releases Class of 2013 Law Graduate Employment Data (Apr. 9, 2014), available at http://www.americanbar.org/news/abanews/aba-news-archives/2014/O4/american-ba r_associa4.html.
(87.) See Employment Summary for 2013 Graduates, BARRY U., https:/Ibarryustor age.blob.core.windows.net/assets/docsflaw/509djdclassof2013emplymentprofile.pdf (last updated Mar. 14, 2014, 3:58 PM); Employment Summary for 2013 Graduates, FLA. COASTAL SCH. L.; https://www.fcsl.edu/sites/fcsl.edu/files/ABA%20Summary%20 -%202013.pdf (last visited May 19, 2015); Employment Summary for 2013 Graduates, PACE U. SCH. L., http://www.law.pace.edulsites/default/files/career development/ABA _emplyment summaryCO13.pdf (last updated Mar. 17, 2014, 2:35 PM); Employment Summary for 2013 Graduates, THOMAS JEFFERSON SCH. L., http://www.tjsl.edu/sites/default/files/files/ABA%2OEmploymentSummaryClass%20of %202013.pdf (last updated Mar. 17, 2014, 3:34 PM); Employment Summary for 2013 Graduates, WHITTIER L. SCH., https://www.law.whittier.edu/resources/pdfs/employm ent-report-class-of-2013.pdf (last updated Apr. 19, 2014, 3:50 PM).
(88.) See Duren & Assocs., What's Diversity? It's More than Race or Gender, U. MICH. HEALTH SYS. (2002), https://www.med.umich.edu/diversity/pdffles/file28.pdf.
(89.) Holmquist et al., supra note 6, at 565.
(90.) See Michael Holzman, The Way Out of the Black Poverty Cycle, ANSWER SHEET (May 31, 2013), http://www.washingtonpost.com/blogs/answer-sheet/wp/ 2013/05/31/the-way-out-of-the-black-poverty-cycle/.
(91.) N.C. Cent. Univ. Sch. of Law, supra note 7, at 1.
(92.) See Debra Cassens Weiss, Tuition and Fees at Private Law Schools Break $40KMark, on Average, A.B.A. J. (Aug. 20, 2012, 10:30 AM), http://www.abajournal.c om/news/article/averagetuition.at-private law-schools.breaks_40k mark/.
(93.) N.C. Cent. Univ. Sch. of Law, supra note 7, at 2.
(94.) The data in table six are available at the following sources: Cal. W. Sch. of Law, Standard 509 Information Report, SECTION LEGAL EDUC.-ABA REQUIRED DISCLOSURES 1-2 (2014), http://abarequireddisclosures.org (Select "California Western School of Law" and "2014"); Capital Univ. Sch. of Law, Standard 509 Information Report, SECTION LEGAL EDUC.-ABA REQUIRED DISCLOSURES 1-2 (2014), http://abarequireddisclosures.org (Select "Capital University" and "2014"); Charlotte Sch. of Law, Standard 509 Information Report, SECTION LEGAL EDUC.-ABA REQUIRED DISCLOSURES 1-2 (2014), http://abarequireddisclosures.org (Select Charlotte School of Law and "2014"); Fla. Agric. & Mech. Univ. Coll. of Law, Standard 509 Information Report, SECTION LEGAL EDUC.-ABA REQUIRED DISCLOSURES 1-2 (2014), http://abarequireddisclosures.org (Select "Florida A&M University" and "2014"); Fla. Coastal Sch. of Law, Standard 509 Information Report, SECTION LEGAL EDUC.-ABA REQUIRED DISCLOSURES 1-2 (2014), http://abarequiredd isclosures.org (Select "Florida A&M University" and "2014"); Golden Gate Univ. Sch. of Law, Standard 509 Information Report, SECTION LEGAL EDUC.-ABA REQUIRED DISCLOSURES 1-2 (2014), http://abarequireddisclosures.org (Select "Golden Gate University" and "2014"); N.C. Cent. Univ. Sch. of Law, supra note 7, at 1-2; Touro Law Ctr., Standard 509 Information Report, SECTION LEGAL EDUC.-ABA REQUIRED DISCLOSURES 1-2 (2014), http://abarequireddisclosures.org (Select "Touro College" and "2014"); Univ. of La Verne Coll. of Law, Standard 509 Information Report, SECTION LEGAL EDUC.-ABA REQUIRED DISCLOSURES 1-2 (2014), http://abarequiredd isclosures.org (Select "University of La Verne" and "2014"); Valparaiso Univ. Law Sch., Standard 509 Information Report, SECTION LEGAL EDUC.-ABA REQUIRED DISCLOSURES 1-2 (2014), http://abarequireddisclosures.org (Select "Valparaiso University" and "2014"); W. Mich. Cooley Law Sch., Standard 509 Information Report, SECTION LEGAL EDUC.-ABA REQUIRED DISCLOSURES 1-2 (2014), http://abarequireddisclosures.org (Select 'Thomas M. Cooley Law School" and 2014); Whittier Law Sch., Standard 509 Information Report, SECTION LEGAL EDUC.-ABA REQUIRED DISCLOSURES 1-2 (2014), http://abarequireddisclosures.org (Select "Whittier Law School" and "2014"); Widener Univ. Sch. of Law--Del., Standard 509 Information Report, SECTION LEGAL EDUC.-ABA REQUIRED DISCLOSURES 1-2 (2014), http://abarequireddisclosures.org (Select 'Widener University-Delaware" and "2014"); see also Gary Rosin, A Tale of Two Law Schools: Academic Attrition, FAC. LOUNGE (July 5, 2011, 7:00 AM), http://www.thefacultyloun ge.org/2011/07/a-tale-of-two-law-schools-academic-attrition.html (analyzing attrition rates for the fall 2008 entering class at two law schools).
(95.) See, e.g., Kristen Robbins Tiscione, Inside Scoop: What Federal Judges Really Think About the Way Lawyers Write, 8 LEGAL WRITING 257 (2002) (presenting detailed criticism by judges of lawyers' writing and advocacy skills).
(96.) Louisiana is the only state that does not require the Multistate Bar Examination. See The Multistate Bar Examination, NAT'L CONF. BAR EXAMINERS, http://www.ncbex.org/about-ncbe-exams/mbe/ (last visited Mar. 12, 2015).
(97.) See, e.g., The Degree of Master of Studies in Law, YALE L. SCH., http://www.law.yale.edulgraduate/msl-program.htm (last visited May 19, 2015) (explaining that journalists who report on legal issues and want to provide informed knowledge to their audiences would be candidates for such a program).
(98.) See id.
(99.) See Holmquist et al., supra note 6, at 568.
TABLE I CORRELATION OF LSAT AND LAW SCHOOL GPA TO BAR PASSAGE GPA (AVERAGE) LSAT PREDICTED BAR PASSAGE RATE 3.47 139 85% 3.47 142 90% 3.15 139 Less than 50% 3.15 154 Over 90% 2.83 139 Less than 14% 2.83 166 Over 90%8 TABLE II DECLINE IN TWENTY-FIFTH PERCENTILE LSAT SCORES (2010-2013) SCHOOL DECLINE IN TWENTY-FIFTH PERCENTILE LSAT SCORES Charlotte 148 to 141 Faulkner 148 to 142 Florida Coastal 146 to 141 Thomas Jefferson 149 to 144 Touro 149 to 145 Valparaiso 147 to 141 University of Dayton 150 to 145 Whittier 150 to 145 Suffolk 152 to 145 (10) TABLE III CORRELATION BETWEEN INDIVIDUAL FACTORS AND BAR PASSAGE Law school grade point average .38 LSAT .30 Undergraduate grade point average .18 Selectivity of undergraduate institution .08 Socioeconomic status .06 Stratum of law school attended -.09 (36) TABLE IV DEBT AND EMPLOYMENT OUTCOMES OF 2011 Average EMPLOYMENT AVERAGE PERCENT Debt * OUTCOMES ** STARTING UNEMPLOYED SALARY $84,600 65.4% (nine $73,984 12.1% (79) (public months, bar schools passage schools); required) $122,158 (private schools) * 2011-2012 ** Class of 2012 (Long- Term Positions Passage Required) TABLE V EMPLOYMENT IN FULL-TIME POSITIONS (J.D. AND BAR PASSAGE REQUIRED) SCHOOL EMPLOYED AT GRADUATION (FULL-TIME, J.D. AND BAR PASSAGE REQUIRED) Whittier 27% Thomas Jefferson 29% Florida Coastal 31% Barry University 40% Pace 41% (87) TABLE VI FIRST YEAR ATTRITION AT ABA-ACCREDITED LAW SCHOOLS BASED ON ACADEMIC PERFORMANCE (2014) School LSAT UNDERGRADUATE ATTRITION (MEDIAN) GPA (MEDIAN) Valparaiso 145 3.10 16.1% Thomas M. Cooley 145 2.90 13.9% Charlotte 142 2.83 32.1% Florida Coastal 143 2.93 20.5% La Verne 147 2.88 20.5% Florida A&M 146 3.03 17.5% Touro 146 3.04 9.7% North Carolina 144 3.24 28.6% Central Capital 148 3.15 16.6% Whittier 146 2.90 33.9% Widener--Delaware 149 3.08 29% California Western 151 3.13 33.6% Golden Gate 149 2.98 21.3%
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|Title Annotation:||response to Kirsten Holmquist and others, Journal of Legal Education, vol. 63, p. 565|
|Publication:||Loyola Law Review|
|Date:||Jun 22, 2015|
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