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Why Was Former Stanford Law School Dean Kathleen Sullivan Failed on the California Experienced Attorney Bar Exam?

Notwithstanding that the California licensing test for experienced attorneys is graded in an assembly line and not a valid or reliable test, and two out of three experienced attorneys are routinely failed on the July bar exam, (see previous post), the question naturally arises: How could former Stanford Law School Dean Kathleen Sullivan, the author of a textbook on Constitutional Law and one of the most skilled advocates in America, be failed on this entry level licensing test? The answer lies in what scientists have termed “inattentional blindness.” A taped study at Harvard University demonstrates “inattentional blindness.” There were two teams of basketball players, one wearing blue and one white, throwing the ball to each other. Participants were asked to count the passes from team members to each other. A man in a gorilla costume walked into the middle of the action, brushing shoulders with the players, turned directly toward the camera, beat his chest, and slowly walked off the Court. The study showed that more than fifty percent of the participants in the study were so absorbed in counting the passes they did not see the gorilla in their midst. Afterwards, when the participants watched the tape again, they were so surprised when the gorilla was pointed out to them that many of them accused the experimenters of having doctored the tape between viewings.1 The bar exam graders are paying attention to entry level signs, and experienced attorneys, like former Stanford Law School Dean Kathleen Sullivan who was failed on the exam, is a gorilla in their midst.


Kathleen Sullivan

Permanent Link: Why Was Former Stanford Law School Dean Kathleen Sullivan Failed on the California Experienced Attorney Bar Exam?


Bar Examiners on Steroids: Five Nationally Respected Testing Experts Conclude the California Experienced Attorney Licensing Test Fails to Satisfy Testing Standards

Five nationally respected testing experts have concluded that California’s 100% subjective high-stakes licensing tests given to experienced sister-state attorneys does not meet testing Standards.
The ABA, in addition to endorsing admission on motion, adopted a first-time bar passage rate of at least 75%, or its member schools risk losing their accreditation.1 The first-time pass percentage pass rate on the July 2008 bar exam was 83%.2 The chart below reflects the statistics on the California July experienced attorneys’ examination, and the experienced attorney pass percentage in the minority of states still requiring experienced attorneys to reinvent the wheel, and take another bar exam.3
*             2004              2005              2006
Jurisd    Passing           Passing          Passing
*        Percentage       Percentage    Percentage

CA        39%                  28%                36%

GA        87%                  87%                87%

ME        90%                  100%              80%

MD       92%                   88%               96%

MS       100%                 100%              67%

RI         80%                  100%              94%

UT        100%                 89%               50%

total      57%                  52%                59%

The disparate impact of this licensing exam raises red flags that warrant further investigation. Statistics, in general, dictate that most populations will have a Bell Curve shaped distribution, with 2/3 of the population within one standard deviation from the mean. According to California State licensing officials, two out of three attorneys already licensed in other states, are threats to the public and cannot be safely trusted to practice law.

There are standard statistical indices for the reliability of test scores. The most basic of these is the standard error of measurement. A reliability coefficient can be defined in terms of the average magnitude of the standard error. A fairly high reliability (above 0.8; preferably above 0.9) is expected for testing programs that are used to make high-stakes decisions about individuals.4 For example, if two graders agree on the score, the correlation coefficient is 1.00 and if there is no agreement the correlation coefficient is zero. Bar examinations are high-stakes licensing examinations because they have serious consequences.5

The State Bar of California prepares a report on each bar exam for the California Supreme Court. Standard 14.15 provides that “estimates of the reliability of test-based credentialing decisions should be provided.” In light of Standard 14.15, deeply buried so as to be unnoticeable, the State Bar provides an estimate of the reliability by way of a correlation coefficient. That is, the degree by which the graders on the subjective test sections agree with themselves. The measurement error is another way of referencing the correlation coefficient. The Report(s) to the California Supreme Court on the California Bar Examination documents the reader correlation on the 100% subjective eight-question subjective tests given to experienced attorneys as follows:

February 2001 reader correlation .41
July 2001 reader correlation .48
February 2002 reader correlation .38
July 2002 reader correlation .40
February 2003 reader correlation .48
February 2004 reader correlation .39
July 2004 reader correlation .41

These experienced attorney reliability results confirm Dr. Norman’s conclusion that getting bar graders to agree on subjective scores is virtually impossible.

First, Dr. Phillip L. Ackerman is a Professor of Psychology at Georgia Institute of Technology; the Editor, Journal of Experimental Psychology: Applied; a Fellow of the American Psychological Association and a member of the American Educational Research Association and the National Council on Measurement in Education (these are the three organizations that generate the Standards on Psychological and Educational Testing). Dr. Ackerman wrote the chapter on testing in K. Anders Ericsson, Ed., The Cambridge Handbook of Expertise and Expert Performance, supra, and he is one of the leading testing experts in the world.6 Dr. Ackerman has reviewed the State Bar’s Report to the California Supreme Court on the California Bar Examination and other material he deemed necessary to form an expert opinion.

Dr. Ackerman’s professional opinion is that the Attorney’s Examination for experienced sister-state attorneys fails to meet the Standards for Educational and Psychological Testing. Multiple Standards have not been met. More particularly, Dr. Ackerman declares, under oath:
“The scores on the Attorney’s Examination are determined in a manner that is not consistent with professional standards. The reliability of the test scoring procedures fails to reach a level that would be acceptable for high-stakes testing. (Specifically, inter-rater agreement is quite low, a correlation of .48 between raters indicates only 23% shared variance among ratings; source: Klein & Bolus; Gansk & Associates 2003.) An acceptable level of reliability for such high-stakes testing would be shared variance in the neighborhood of 70% or higher (corresponding to reliability of about .84 or higher). (Emphasis added) (Exhibit A ¶ 4c)

When the goal of inter-rater reliability is preferably in the range of .8 to .9 as noted by Dr. Kane, and the inter-rater reliability of the California Attorney’s Examination is consistently reported to be below .5, there can be little doubt that the reliability of the decisions made on the basis of the scores is extremely low, and not acceptable. (Exhibit A ¶ 9)

Dr. Ackerman further concludes the “Attorney’s Examination lacks content-related validity” (Exhibit A ¶ 4a), and it “has never been demonstrated to have criterion related validation, (Emphasis added) in terms of evaluating the scores on the test and comparing them to performance of practicing attorneys. (Exhibit A ¶ 4b).

Second, Dr. Gary H. McClelland, a professor at the University of Colorado at Boulder is also an expert on statistics and measurement. Dr. McClelland previously studied the Colorado bar examination and based on that study wrote “Assessing Bias in Professional Licensing Examinations by Checking Internal Consistency,” 9 Law and Human Behavior, No. 3, p. 305 (1985). Dr. McClelland declares, under oath:

I have reviewed Dr. Phillip L. Ackerman’s “Evaluation of the Psychometric Adequacy of the California Attorney’s Examination” dated February 15, 2008, and generally agree with it. Dr. Ackerman is a credible psychometrician as well. In my opinion, the lack of an explicit equating procedure for the Essay and Performance Test sections is a fatal flaw. The degree of inter-rater agreement is dreadful. I do not believe any scientist would ever publish data based on such low inter-rater agreement. (Emphasis added).

Third, Dr. Susan Case, the Director of Testing for the NCBE, avows that non-multiple choice format tests, such as essay and performance tests “because of their limitations, such as low reliability, lack of anonymity, and lack of standardization, should not be used in isolation.” See Susan M. Case, “Licensure In My Ideal World,” The Bar Examiner, p. 27 November 2005. The California Bar exam for experienced attorneys is a 100% subjective test used in isolation.

Fourth, the NCBE’s Dr. Kane opines, “If it were feasible to evaluate performance in practice directly, this would be the preferred approach.” Michael T. Kane, “The Role of Licensure Tests,” The Bar Examiner, p. 34 (February 2005). According to the ABA and the NCBE, nationally respected peer groups, the preferred approach is to evaluate practice directly based on the attorney’s experience. Dr. Kane, as noted above, states the industry standard for reliability is preferably .9 for bar examinations.

Fifth, Dr. Stephen P. Klein prepares the report for the California Supreme Court on each bar exam noted. Dr. Klein is paid handsomely to provide the California Supreme Court with full and fair disclosure. Dr. Klein in other writings, however, emphasizes the danger caused by using 100% subjective high-stakes tests in isolation. See Stephen P. Klein, “What Do Test Scores in Texas Tell Us?” (Published 2000 by RAND) Dr. Klein admits:
“Our research results illustrate the danger of relying on statewide test scores as the sole measure of student achievement when these scores are used to make high-stakes decisions about teachers and schools as well as students. We anticipate that our findings will be of interest to local, state, and national educational policymakers, legislators, educators, and fellow researchers and measurement specialists.” 7

This Dr. Klein evidentiary admission proves the California bar exam for experienced attorneys is fundamentally flawed because it is used as the sole measure of experienced attorney competence.

Dr. Klein also admits, “While many bar exam graders believe they can recognize a passing answer when they see one, there is strong empirical evidence to the contrary.” See Stephen P. Klein, “Essay Grading: Fictions, Facts and Forecasts,” The Bar Examiner p. 23, 25 (August 1985).
Clear and compelling evidence shows the California bar exam for experienced attorneys, the putative gold standard, fails to satisfy testing Standards.

1 “ABA Votes on Bar Passage Journal” Daily Journal February 13, 2008 p. 3.
2 Los Angeles Daily Journal November 25, 2008 p.1
3 From the NCBE web page http://www.ncbex.org/bar-admissions/stats/
4 Id. at p 9.
5 Id. at 9. 
6 Over the past 15 years, Dr. Ackerman has published 12 reviews in the Mental Measurements Yearbook (which is generally regarded as the “bible” for critical reviews of commercial, educational, psychological, and organizational tests). Over the past 25 years, he has consulted on educational and occupational testing for the following organizations: U.S. Air Force, U.S. Army, U.S. Navy, Personnel Research and Development Center, U.S. Department of Education, Minnesota Air Traffic Control Center (FAA), The College Board, Educational Testing Service (ETS), and General Motors. 

7 http://www.rand.org/pubs/issue_papers/IP202/index2.html;

Permanent Link: Bar Examiners on Steroids: Five Nationally Respected Testing Experts Conclude the California Experienced Attorney Licensing Test Fails to Satisfy Testing Standards


CANADIAN CROSS-BORDER LEGAL PRACTICE: ONE BAR IS SUFFICIENT

Canada has made a concerted effort to provide its lawyers with inter-province mobility, allowing them to practice law outside of their legal training and licensing jurisdiction. Specifically, Canada enacted the National Mobility Agreement and Territorial Mobility Agreement. Under these rules, an attorney licensed in one Canadian province may practice law in another jurisdiction, as long as he or she is entitled to practice in their home jurisdiction (i.e. they are in good standing). Further, an applicant attempting to practice in another jurisdiction need not pass that jurisdiction’s legal licensing examinations; they must simply certify that they understand the materials and rules reasonably required in that to practice in that jurisdiction. These rules allow Canadian attorneys to freely follow their clients and practice law where they so please. In Canada, one bar examination is sufficient.

Permanent Link: CANADIAN CROSS-BORDER LEGAL PRACTICE: ONE BAR IS SUFFICIENT


ONE BAR EXAM IS MORE THAN ENOUGH IN THE EU

The European Union has concluded that one bar exam is more than enough. In the EU there are 40 countries, one million lawyers, and 23 official languages. In stark contrast to the American system, there is a unified goal of homogeny and mutual reciprocation amongst the European Union countries. Entry into the practice of law is regulated to be in the best interest of the citizens represented by attorneys. A lawyer licensed in one country can open an office temporarily or permanently in any country in the EU. Once practicing for three years in that country he becomes a member of his new country’s profession in addition to his initial licensing country. Further, law students and other people in the middle of legal training may transfer to other EU countries to compete their legal training and licensing. This allows people engaged in legal training to choose their country of practice, without fear of being pigeonholed in their “home” country.

Permanent Link: ONE BAR EXAM IS MORE THAN ENOUGH IN THE EU


NAAMJP files lawsuit challenging U.S. District Court "Local" Rules in the Ninth Circuit

NAAMJP files lawsuit challenging U.S. District Court “Local” Rules in the Ninth Circuit that Deny General Admission Privileges to Non-Forum State Attorneys. Blye et. al. v Kozinski et. al. c 10-02014.  See Pending Litigation Page.

Permanent Link: NAAMJP files lawsuit challenging U.S. District Court "Local" Rules in the Ninth Circuit


NAAMJP Asks 9th Circuit Judicial Council to Follow the ABA and Adopt Reciprocal Bar Admission for All Sister-State Attorneys

The NAAMJP has petitioned the Ninth Circuit Judicial Council on October 12, 2009 to review all federal district court “local” rules, and to follow the ABA’s recommendation for reciprocity.
This Honorable Judicial Council has a mandatory duty to periodically review the District Court “local” rules; and it is authorized to abrogate any “local” rule in its circuit that contradicts 28 U.S.C. §§ 2071 or 2072. 28 U.S.C. § 332 (d)(4) provides:

Each judicial council shall periodically review the rules which
are prescribed under section 2071 of this title by district courts within its
circuit for consistency with rules prescribed under section 2072 of this title.
Each council may modify or abrogate any such rule found inconsistent in the
course of such a review.

The Reporter comments specify there is no such thing as a rule becoming sacrosanct from passing prior review.

Below is a graphic representation of bar admission based on either national rules [FRAP 46, Supreme Court Rule (5)] or laws enacted by Congress [5 U.S.C. § 500]. All sister-state attorneys are entitled to practice before these federal courts. The national Rules are approved by Congress.

admission on motion

Below is a graphic representation of the federal district court “local” bar admission Rules.

admission on motion

District Court “local” rules in Pennsylvania, Ohio, Tennessee, and Missouri are divided. Some mandating forum State bar membership and others provide full reciprocity. This federal inconsistency demonstrates forum State bar membership is not necessary.

Below is a graphic representation of the federal district court “local” bar admission rules when the U.S. government is representing itself.

admission on motion

28 U.S.C. § 2071. Rule-Making Power Generally, in pertinent part provides:

(a) …Such (local) rules shall be consistent with Acts of Congress and rules of
practice and procedure prescribed under section 2072 of this title.

28 U.S.C. § 2072. Rules of procedure and evidence; power to prescribe, provides:

(b) Such (local) rules shall not abridge, enlarge or modify any substantive
right.

These U.S. District Court “local” general bar admission rules violate both of these statutory standards. First, the “local” attorney admission rules are not consistent with the national attorney admission rules as is required by 28 U.S.C. § 2071(a). Rules prescribed under 28 U.S.C. § 2072 are approved by Congress. Congress has authorized every State-licensed attorney to obtain reciprocal bar admission and practice before the U.S. Courts of Appeals (FRAP 46), federal administrative agencies (5 U.S.C. § 500), and in the U.S. Supreme Court (Rule 5) there is only a three year experience requirement. All sister-state attorneys are presumed equal.

Second, the local rules further trespass 28 U.S.C. § 2072(b) because they enlarge the privileges of forum State attorneys and they modify and abridge the rights of non-forum State attorneys.

The Judicial Council standard of review of these local rules is not rational basis. The Judicial Council heightened scrutiny standard of review is set forth in 28 U.S.C. § 2071(a) and § 2072(b). Congress, in revising the Rules Enabling Act in 1988, has decreed local Rules shall not favor any person or group.

Case law from over twenty years ago concludes forum State admission is necessary because the federal district court does not have discipline apparatus, and thus must rely on the forum State. This rationale, however, has been rejected by the Supreme Court. It has repeatedly held it will not presume that any attorney will violate his professional obligations, or not familiarize himself or herself with local law. Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985); Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1987)(holding admission on motion is a constitutionally protected privilege and immunity). The High Court has further squarely held difficulties in policing a nation-wide bar does not justify discrimination in bar admission. Barnard v. Thorstenn, 489 U.S. 546, 556-57 (1989). More specifically, there is also no reason to speculate any State will shirk its duty to investigate and discipline its attorneys. States today generally claim jurisdiction to discipline any attorney living or working in the State regardless of where he or she is licensed.

According to the ABA, experienced attorneys should not have to take another Sate bar exam to practice in the federal district courts. Federal practice and procedure are supposed to be uniform and guided by federal law. U.S. District Courts have exclusive jurisdiction over many areas of federal practice, such as patents, trademarks, copyright, securities, and bankruptcy. As implied in the ABA’s MacCrate report, bar exams do not measure nine out of 10 fundamental lawyering skills. As to the one skill it does test, Dr. Geoff Norman has written it is almost impossible to get essay graders to agree with each other. If federal district courts grant general bar admission privileges to novice forum State attorneys then general bar admission should be granted to experienced sister-state attorneys.

Permanent Link: NAAMJP Asks 9th Circuit Judicial Council to Follow the ABA and Adopt Reciprocal Bar Admission for All Sister-State Attorneys


7th Circuit Holds Wisconsin Supreme Court's Diploma Privilege May Violate Commerce Clause

The plaintiffs, and the certified class they represent are graduates of accredited out-of-state law schools who want to practice law in Wisconsin. The Wisconsin Supreme Court admits newly minted graduates of state law schools to practice without requiring them to take the bar exam. Wisconsin is also among the 38 States that provide admission on motion to experienced attorneys. Plaintiffs argued Wisconsin’s “diploma privilege” discriminates against graduates of out-of-state law schools who would like to practice law in Wisconsin. The 7th Circuit published decision written by Judge Posner remanded the case for a determination of whether the challenged favoritism for Wisconsin law school graduates violates the Commerce Clause. See PDF http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=rss_sho&shofile=08-2527_004.pdf
The case was remanded to allow plaintiffs an opportunity to prove their claims.

Hat tip: Inside Higher Ed. and ABA Journal Daily Newsletter [abajournalereport@abanet.org]

Permanent Link: 7th Circuit Holds Wisconsin Supreme Court's Diploma Privilege May Violate Commerce Clause


Oregon Bar Examiners Propose Rule Change: Request Reciprocity Admission

The Chair of the Oregon Committee of Bar Examiners, the Hon. Jill Tanner, writes: “One of the primary duties of a lawyer is to protect the public interest – to ensure that justice is served and that laws are followed. But how can a lawyer effectively protect the common good in a world of change? Oregon’s current rule allows reciprocal admission only with Alaska, Idaho, Utah and Washington. Each of those states is one of the qualifying jurisdictions in the proposed rule. If the rule is enacted, Oregon attorneys could seek admission in 37 qualifying jurisdictions without taking another bar examination. In addition, attorneys licensed in those same qualifying jurisdictions would be allowed to be licensed in Oregon without taking the Oregon bar examination. California is not one of the qualifying jurisdictions because it does not grant reciprocal admission on motion. Judge Hatter writes: “economic protectionism created by barriers to entry may invite constitutional challenges, and it shows little concern for those whom attorneys should serve. Finally, there is no evidence that a disproportionate number of disciplinary matters arise when attorneys are admitted without taking another bar examination.” All written comments should be directed to the Oregon Supreme Court in care of the Board of Bar Examiners to admission-on-motion@osbar.org. Written comments must be received no later than 5 p.m, Thursday, Oct. 1. http://www.osbar.org/publications/bulletin/09jun/member.html

Permanent Link: Oregon Bar Examiners Propose Rule Change: Request Reciprocity Admission


Bar Exams for Experienced Attorneys: Time to Connect the Dots and Disconnect the Code of Silence

The practice of law has become nationwide and global. Unfortunately, the licensing process for U.S. attorneys has not caught up with today’s reality. The mental model that requires experienced attorneys to re-invent the wheel and take another bar exam to obtain licensing in another state is as outdated as the separate but equal era in the 21st century.

A bar exam, like driver’s license testing, is predictive in nature and designed to measure entry level skills. The purpose of the exam is to model what a beginning attorney would confront in practice and thus to provide a measure of comfort that the public will not be injured. The fact that an attorney is already licensed and practicing successfully in another jurisdiction is the best evidence of competence – the proof is in the pudding. The United States Supreme Court has held that there is no reason to presume that an out-of-state attorney will not become familiar with local law or disserve the public. Thus, the mere fact experienced attorneys are required to take another licensing exam illustrates the exam is suspect.

Digging deeper into the licensing function, Robert MacCrate, Esq., was the chair of the ABA’s Task Force on Law Schools and the Profession. The “MacCrate Report” identifies 10 fundamental lawyering skills: (1) problem solving, (2) legal analysis and reasoning, (3) legal research, (4) factual investigation, (5) communication, (6) counseling, (7) negotiation, (8) litigation and alternative dispute resolution, (9) organization and management of legal work, and (10) professional self-development.

A pen and paper bar examination cannot and does not test nine of the ten skills identified by the MacCrate Report as fundamental to the successful practice of law. The only identified skill that can be tested is legal analysis and reasoning. Dr. Geoff Norman is a well known and highly respected psychometric expert who has 30 years of experience in the field and has written numerous articles for The Bar Examiner. Dr. Norman reports, “Study after study has shown that it is almost impossible to get judges to agree on scores for essay answers.” For example, California’s licensing exam for experienced attorneys is 100 percent subjective. The RAND Corporation reports a 23 percent or less agreement among graders of the exam. Deborah Rhode, a Stanford law professor, reports that there has never been a study proving a correlation between passing a bar exam and competently practicing law. Yet, two out of three already licensed attorneys are disqualified for California licensing based on a high-stakes licensing test that has no other purpose other than to limit supply and increase demand.

Imagine, if you took an AIDS test, and the test results 23% of the time were the same, and there was no proof the test had any correlation with having the virus? This putative re-testing scheme is a cancer that needs to be removed by any and every means necessary.

Many bar examiners at the state and national level know these indisputable facts. They have a code of silence that permits each of them to make money off the profession by selling additional bar exams. They are by silence perpetuating the status quo long after the quo has lost its status.

Join the NAAMJP www.mjplaw.org. Let’s connect the dots and disconnect this code of silence.

Permanent Link: Bar Exams for Experienced Attorneys: Time to Connect the Dots and Disconnect the Code of Silence


Ninety percent of the population needs a new model for legal services

The Los Angeles Times on June 2, 2009 reported that Harvard Law School graduate Luz Herrera stated: “Ninety percent of the population needs a new model for legal services.” Herrera said: “There’s only a system [of legal representation] for the well off, and for the very, very poor.” Herrera hung up her shingle in Compton, California, home to 50,000 Latinos, and took on the kinds of cases that typically are the bread and butter of small-town attorneys — divorce and child custody, bankruptcy, probate and real-estate transactions. Herrera said, “I learned to think like a lawyer there (Harvard)… I learned how to be a lawyer here. That’s what Compton gave me.”

Chief Justices, Others, Consider Ideas On Regulating Lawyers in Global Setting

The ABA/BNA Lawyers’ Manual on Professional Conduct, 25 Law. Man. Prof. Conduct 300, reports an invitation only event, “The Future Is Here: Globalization and the Regulation of the Legal Profession” was held on May 27, 2009 in Chicago. Some conference participants expressed concern about tackling internationalization when the United States has yet to implement a driver’s-license approach to domestic multijurisdictional practice. ABA President-Elect Carolyn B. Lamm told the audience that this country simply does not have the luxury of avoiding the issues. Panelist Anthony Davis of Hinshaw & Culbertson in New York cited what he sees as the absurdity of state-by-state regulation of lawyers favors national, uniform regulation of the legal profession. It makes no sense for a team of lawyers to be working under multiple sets of rules, Davis said.

The NJ Supreme Court Lightens Up on In-House-Counsel Licensure by a Micron for Unemployed Lawyers

Charles Toutant, of the New Jersey Law Journal on June 8, 2009 reported the Court said an in-house lawyer whose employment is terminated need not re-apply for a license if the Court is notified of new employment within one year, rather than the prior 90 day period. The Court also said registered in-house who are terminated may continue to work on a contract or per diem basis for his or her former employer, without having to get a plenary license, and provide pro bono if other hoops are swished from the three point line. These micrometer (millionth of a meter) were made in consideration of the plight of lawyers laid off from their corporate jobs.

See http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202431313861

Permanent Link: Ninety percent of the population needs a new model for legal services


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