The following message was sent to the students, faculty, and staff of the University of Richmond School of Law.

The recent events in Charlottesville are a harsh reminder that white supremacist ideology is not a historical relic. It’s an ideology that persists, and one that cannot be ignored.

The constitutional right of free speech allows all ideas to be spoken, no matter how hateful they may be. We should claim that same right to voice our rejection of such ideas and vehemently oppose racism and bigotry. Moreover, as lawyers, we have a unique responsibility to promote the values of equality that underlie our legal system.

As white supremacists try to sow dissension, it is my hope that the Richmond Law community will instead use this as an opportunity to unite. Unite behind an opposition to racism. Unite behind the principles of civil, non-violent discourse. And unite behind a strong commitment to establishing justice for all.

It is no secret that the last six years have been difficult ones for law schools, with student enrollment down significantly. Fewer students means less tuition revenue, and as a result schools have had to either find other sources of revenue or cut costs. For regulators, bar examiners, and those who care about the quality of legal education, a core concern is (or should be) whether these revenue enhancements or cost cutting measures adversely affect the quality of the education.

On the revenue side, the ABA has always been attentive to impact on quality. The ABA does not accredit or regulate non-J.D. programs, but any ABA accredited school that wants to add a non-J.D. program must complete a detailed questionnaire which is designed to demonstrate that the new degree program will not divert necessary resources from the J.D. program.

However, a recent proposed rule change to Standard 403 suggests that the ABA is less concerned about quality impacts on the cost-cutting side. Currently, the accreditation rules require that full-time faculty teach substantially all of the first-year classes and at least half of all credit hours offered by the school. A proposed rule change would eliminate any requirement concerning full-time faculty in the upper class curriculum. In other words, the entire upper-class curriculum could be taught solely by part-time adjuncts.

Nearly every law school uses practicing lawyers and judges to teach skills and specialty courses, and their presence enriches the curriculum. Indeed, for certain specialized courses, adjuncts are undoubtedly better teachers than full-time faculty. But as valuable as part-time adjuncts can be, they are no substitute for full-time faculty, for whom teaching, mentoring of students, and curriculum review and assessment are a full-time job, and require a full-time focus of attention.

Teaching core foundational subjects requires more than a practitioner’s knowledge of the area. When I moved from practicing antitrust law to teaching it, I needed to spend many, many hours preparing in order to be able to provide the appropriate conceptual framework. The problem is not that practicing lawyers lack the ability – it is that they lack the time. Full-time faculty keep up not only with their subject area but also with pedagogical innovations. For example, here at Richmond Law, over the past several years our full-time faculty members have participated in multiple workshops, presentations, and discussions about teaching, adult learners, implicit bias, feedback, and assessments. And that doesn’t include the hours that colleagues have spent in each other’s offices offering feedback and ideas. We do hold training programs for our part-time faculty, but they are much shorter and attendance is much lighter.

I don’t mean to suggest that no part-time teacher could ever adequately teach a foundational course, but I don’t think it is likely that a school could appropriately staff an entire upper-class curriculum with only part-time teachers. And unlike the rules on adding new programs, this proposed rule change has no requirement that a school demonstrates that it has systems in place to assure that an entire upper-class curriculum taught only by part-time teachers will be adequate.

Beyond their work in the classroom, full-time faculty are essential to the governance and oversight of law schools. They set standards of assessment and review the curriculum, along with making decisions about hiring new faculty, and they function as advisors to student co-curricular activities and as personal mentors to students. A school with only enough full-time faculty to teach the first-year curriculum will be very thinly staffed.

The current rule already allows schools to have half of its credit hours taught by part-time adjuncts. This gives schools a great deal of flexibility. But allowing schools to eliminate full-time faculty from the entire upper-class curriculum without any demonstration that the school has in place the necessary safeguards to assure quality is a dangerous nod to financial exigency.

Visitors to Arlington National Cemetery typically focus on the tomb of the unknowns and the Kennedy graves. But off the main path, at the top of a hill, behind the nurse’s memorial, you will find the grave of Chief Justice Earl Warren, located next to his former colleague, Arthur Goldberg. Inscribed on the back of Justice’s Warren’s tombstone is the following:

“Where there is injustice, we should correct it; where there is poverty, we should eliminate it; where there is corruption, we should stamp it out; where there is violence, we should punish it; where there is neglect, we should provide care; where there is war, we should restore peace; and wherever corrections are achieved, we should add them permanently to our storehouse of treasures.”

Like so many of women and men buried at Arlington, Earl Warren strove to make the world better. We should celebrate their endeavors, forgive them their errors, and hold permanently their memories in our storehouse of treasures.

Today is one of those “holidays” that not many people know about, but that we take pretty seriously here at Richmond Law. It’s Law Day, the day we celebrate the role of law in our society. And there’s no better way to celebrate the role that Richmond Law lawyers play in society than by taking a look back at a few stand-out members of the Richmond Law community. These women and men have made significant contributions: to their communities, to the legal profession, and even to legal education. To us, these are just a few examples of what we like to call hero-lawyers – and they make us pretty proud to be Spiders!

As you can see, we have a lot to celebrate on Law Day – and this is just the tip of the iceberg! We’re grateful for – and proud of – the members of our Richmond Law community.

In 1963, the Supreme Court decided the landmark case of Gideon v. Wainwright, holding that states are required to provide counsel for criminal defendants who are unable to afford to hire their own lawyer. Three years later in Miranda v. Arizona, the right to counsel was embedded in the ubiquitous “Miranda warnings” that anyone who has ever watched a TV cop show now knows.

As important as those two decisions are, many Americans do not understand that there is no right to a lawyer in civil cases. You can lose your home, your job, and even your children under circumstances that violate the law, but you have no right to a lawyer to assist you in protecting your rights. You can, of course, hire a lawyer – if you have the money. But for millions of Americans struggling to make ends meet, there is no way they can afford to hire a private attorney.

For over 40 years, the Legal Services Corporation (LSC) has played a critical role in filling this gap in access to justice by funding legal aid organizations throughout the country. Created during the Nixon administration with bipartisan support, LSC is the largest single funder of civil legal aid in the country. The organizations that LSC funds handle critical civil legal needs of low-income people such as assisting military families and victims of domestic violence, representing parties in guardianship proceedings, and helping with housing matters such as evictions and foreclosures.

The dollars invested in LSC are a minuscule portion of the federal budget, but President Trump has proposed eliminating all funding for LSC. What a tragedy that would be. One of the features of this country that makes it great is the aspiration of “Equal Justice Under Law.” Denying access to justice for the most vulnerable takes us a step away from greatness. I’m proud to add my name to a letter signed by over 160 law deans urging our congressional leaders to continue to support the LSC. Learn more here.

 

From the Winter 2017 issue of  Richmond Law Magazine

“Why Law Matters” is this year’s theme of the Association of American Law Schools, and it is a subject on which I have been reflecting recently. Law is the invisible infrastructure that holds society together, and lawyers are the architects and engineers of that structure. At a personal level, I am proud to be a lawyer and proud, as well, to be associated with the enterprise of educating the next generation of lawyers.

Here at the University of Richmond School of Law, we educate that next great generation of lawyers who will make a difference and support our greater system of justice. Earlier this year, our students took part in our first-ever Celebrate Civic Engagement Week. They engaged in open forums and conversations on public policy; explored careers in the public sector; discussed inclusivity inside and outside the walls of the law school; and participated in outreach projects to benefit our community.

What’s exciting to me is that these activities aren’t limited to a weeklong celebration. Throughout the year, I see our students engaging in the world around them in thoughtful and substantive ways, from organizing panel discussions on timely social topics to organizing pro bono opportunities to serve those in need. At Richmond Law, our students become more than profession-ready; they become world-ready. I take great pride in that knowledge, and I hope you do, too.

The Ides of March is approaching, and that means one thing for law schools: It is time for career services offices to turn into sleuths and archivists. All law schools must report very detailed employment data on their recently graduated class, and March 15 is the magic date to which this data is keyed. How detailed? Law schools must report, as a separate data entry, each student, the name and address of the employer, and the nature of the position, and they must keep careful records of how they came to have learned all this information.

So how does the school get this information? Well, first it reaches out to each of its graduates and asks them to provide the information. Now remember, these are graduates who left school 10 months ago. They have generally moved out of their student accommodations and are not necessarily regularly checking emails from their law school. Of course, in today’s internet age, people can be tracked through LinkedIn or Facebook, and if that doesn’t work, there is the old-fashioned detective work of asking faculty, staff, and other students. But all of this is time intensive – and once you locate your grads, you have to get them to give you the necessary information. Graduates have no obligation to share information about their employment status, and some are not inclined to do so. And because only direct information from the graduate, direct information from the employer, or publicly available information is considered reliable, the sleuthing does not always end with locating the students.

But finding out where every graduate is employed is only half the job – the other half is documentation. Schools are expected to be meticulous because their records may be audited. So suppose a student tells the career office that she is employed at a particular firm, then what? If the information came by email, the email must be uploaded to the student’s file. If the information was communicated orally, the staff person must document that conversation and put that in the file. Suppose the graduate provides the employer’s name but not the address of the firm: The career office must have someone go to the web, find the address, take a screen shot that shows the address, and upload that to the student’s file.

All of this takes a lot of time and staff resources. Between mid-January and mid-March, one of our full time career counselors spends about two-thirds of her time on data collection and reporting. This is for a graduating class of about 150. The time she spends on data and reporting is time she will not spend with our students and graduates helping them identify job opportunities, reviewing their resumes and cover letters, or preparing them for their interviews.

Of course, prospective students care about employment outcomes and should have reliable information about this. But the level of detail and documentation far exceeds the level of detail we must provide about any other aspect of our operation, and it is time to restore some balance.

Last week, in a moment of commendable candor, Elizabeth Parker, executive director of the California Bar, told law makers that “there is no good answer” for why California has set its bar exam cut score at the level it has. What should California do? One approach would be to simply lower its cut score to, say, the median cut score for all other states, and in the short run, that might be an appropriate response.  But let’s remember that California is not alone in having “no good answer” for why it set its cut score at the level it did.  One can hope that the focus on California may bring much needed attention to the broader issues surrounding the bar exam.

Last week, the ABA House of Delegates rejected a proposal that would have imposed on all law schools a requirement that 75 percent of their graduates pass a bar within two years of graduation. Of course law schools should adequately prepare their graduates to become licensed lawyers, so why would anyone object to this rule?

At least a part of the answer is that there is growing frustration with the lack of transparency in the bar exam and the failure of state bar examiners to explain and justify both the nature of the exam and what is set as a passing score.

There are a couple of oddities about the bar exam. First, although the Multistate Bar Exam (MBE) is a national test – uniform throughout the country, except in Louisiana– what constitutes a passing grade on this pass/fail test is not uniform, but is set separately by each state. The MBE is scored on a 200 point scale and the passing scores (or “cut scores” as they are sometimes called) range from 129 in Wisconsin to 145 in Delaware. Recently, there was much coverage of California’s low bar passage rate – but this was largely a function of its high cut score of 144.  Indeed, the graduates of California’s ABA schools performed better than the national average on the MBE: For the July 2016 bar exam, nationally, the mean MBE score was 140.3, while in California the mean for ABA accredited scores was 145.7.

Second, notwithstanding the assertion of the National Conference of Bar Examiners (NCBE) that the bar exam “should not be designed primarily to test information, memory, or experience,” there is little doubt that information and memory are at the center of the test. For example, when civil procedure was added as an MBE subject, one of the sample civil procedure questions provided by the NCBE turned on remembering the number of days one had under Rule 38(a) to request a jury trial. Of course, a competent lawyer should probably know that this is a subject that is specifically covered by the Federal Rules of Civil Procedure, but a competent and careful lawyer should also check the rule itself and should never rely on her memory as to how many days one has to request a jury.

If anyone believes the bar exam does not depend primarily on information and memory, then I offer the following challenge. The next time the exam is given, let’s randomly select a group of licensed lawyers whom everyone agrees is competent and have them take the bar exam without spending eight weeks cramming. If the bar examiners are correct that this is not about memory and information, then any group of competent lawyers ought to be able to perform well on the exam. Indeed, maybe we could use the score of this randomly selected group of lawyers as the basis for establishing an appropriate cut score, since that would at least link the cut score to some demonstration of competence.

Finally, the Code of Recommended Standards for Bar Examiners of the NCBE provides that the purpose of the bar exam “is to protect the public, not to limit the number of licensed lawyers admitted to practice.”  That is the aspiration, but we have to recognize that the bar exam, like all licensing requirements, is a barrier to entry. And when we see the wide variation in cut scores that exists among the states, we ought to at least ask whether the practice of law is so very different among the states to warrant that differential level of exclusion from the profession.

Of course, the solution is not to dispense with all criteria for lawyer licensing or law school accreditation. But particularly in light of the California example, we have an obligation to take a more comprehensive look at the bar exam and ways of assuring that all licensed lawyers meet the necessary standards of competence without unnecessarily excluding those who can make a valuable contribution to our profession.