Friday, July 17, 2020

Announced Approach to Bar Exam 'Is Not Practical'

This response originally appeared in the July 17, 2020 edition of The Recorder. 

The California Supreme Court’s announcement instructs the State Bar and law schools to do the impossible during ordinary times. To suggest these changes in the midst of a global pandemic is thoughtless at best and dangerous at worst. The Court claims to have sought “the safest, most humane and practical options.” It has failed on all fronts.

Without knowing how the temporary licensing provisions will operate, it is impossible for recent graduates to make an informed decision about taking the October exam. Yet the only guidance the Supreme Court provides the Bar is that the temporary licensing must last two years and include a 15 day public comment period. This is not “practical.”

A remote exam is unfair. Certainly some graduates will be able to plan two days of exam conditions in their homes. However, not all graduates have the wealth or family support required. Many more graduates face home situations in shared spaces with family members who will be attending school or working remotely in the same space. The California Supreme Court simply does not understand the pandemic and its ramifications. This is not “humane.”

Nor are the Court’s plans “safe.” The Court’s suggestion that law schools should provide “facilities and equipment” as they did to help students finish the semester at the beginning of the pandemic is unworkable. To equate a two-day, high stakes licensing exam with attending classes on video conferencing demonstrates a failure to understand what is involved. To provide a student a loaner laptop is a far cry from providing what is needed to take a two day high stakes exam in proper conditions. A student who missed a few minutes of class because of technology problems did not suffer any permanent harm to their legal education. Technology or equipment issues now may prevent graduates from passing a remote bar exam. More importantly, law schools are currently shuttered due to public health orders. It is not possible to provide “safe” options.

While a short, multiple choice style examination might be possible in a remote online setting, a two day exam with written components is not. Presumably bar exam takers will not be allowed actual scratch paper. To require a written exam, without being able to make any notes while reading the exam will potentially benefit those who are more adept with technology or have better computer equipment that more easily allows virtual note taking. No justification exists to take the risk that an exam taker who can afford better computer equipment will have an advantage on the bar exam. The Supreme Court likely does not work on the smaller and older laptops that many of today’s graduates will be forced to use on the examination. This is not “practical.”

Thursday, July 16, 2020

It's Time to Replace the California Bar Exam

This op-ed originally appeared in the July 16, 2020 edition of The Recorder. Read the entire published op-ed here.

By Professor Susan Smith Bakhshian

A fair bar exam cannot be administered today. The State Bar and the California Supreme Court have spent months unsuccessfully searching for a way to offer the bar exam. This must stop. When all of the options are carefully evaluated and no workable solutions exist, it is time to move into the modern age and chart a new path -- one without an exam. The focus on an exam to the exclusion of all other solutions has left California with no plan at all.

Law schools and their graduates have waited patiently hoping for an announcement that would be more thoughtful and workable than some of the jurisdictions who rushed their plans and later had to change course. But the delays continue and no plan emerges for California. Meanwhile, graduates do not have unlimited money to support themselves, or unlimited time to wait for their licensing process to be complete.

The lack of leadership by the California Supreme Court and the California State Bar is an embarrassment. To insist upon a licensing exam that has been under attack for years is indefensible as a pandemic rages on. No one has produced any data to support the notion that somehow a high stakes licensing exam leads to better attorneys. No one has suggested a way to offer an exam without serious health risks. Yet the State Bar and the Supreme Court remain steadfast in their commitment to an exam.

The bar exam is antiquated. The California Bar Exam has not been thoughtfully evaluated or assessed for decades. Yet much has changed for attorneys during that time. While the State Bar is currently analyzing survey data it collected from practicing lawyers, the middle of a pandemic is not the time for subtle changes. The bar exam needs major surgery, not a Band-Aid.

The bar exam promises much and delivers little. A licensing exam does nothing to ferret out the corrupt or impaired attorneys who cannot serve their clients. A robust moral character process, effective diversion programs, and a fair discipline system are better solutions for those problems.

The bar exam is effective at keeping attorneys out for no good reason. It is time to replace it with something that works. Today is a time of great social change. That should include a fair process to license lawyers without clinging to an exam that cannot be administered safely or fairly. The California Bar Examination needs to be replaced.

Friday, April 24, 2020

Honoring Armenian Genocide Remembrance Day

By Rajika Shah, Deputy Director, Center for the Study of Law & Genocide

Today marks Armenian Genocide Remembrance Day. Our thoughts are with the victims of the Armenian Genocide and every genocide. They lost lives and livelihoods, families and friends, and every basic sense of security in this world—yet the survivors find ways to live again and thrive. The difficulties and disruptions they faced inspire us to persevere through our own challenges.

We are also concerned for all the fragile populations around the world who are at greatest risk of humanitarian catastrophe due to the global Covid-19 pandemic: those who live in conditions of violence, conflict, and political instability; those living in refugee camps and shelters; and those without the resources to care for themselves and their families.

You can view information on our Armenian Genocide Remembrance events and all our past events, including links to videos of the presentations, here.

Monday, January 27, 2020

Reflecting on International Holocaust Remembrance Day

By Rajika Shah, Deputy Director, Center for the Study of Law & Genocide

Today, on International Holocaust Remembrance Day, we remember and honor all the victims and survivors of the Holocaust. We particularly mourn those who lost their lives at the Auschwitz concentration camp, which was liberated 75 years ago today.

We also celebrate an important step in the modern struggle to end genocide. Last Thursday, January 23, 2020, the International Court of Justice unanimously indicated binding provisional measures designed to preserve the rights protected by the 1948 Genocide Convention. Those rights were asserted by The Gambia against Myanmar and arose out of the egregious human rights abuses committed from October 2016 onwards against members of the Rohingya ethnic and religious minority group, hundreds of thousands of whom were forced to flee their homes in Myanmar’s northern Rakhine state amid conditions of abject terror. The Gambia claimed protections for all members of the Rohingya who remain in the territory of Myanmar, as members of a protected group under the Genocide Convention. The Gambia also asserted its own rights under the Genocide Convention to seek compliance by Myanmar with its obligations as a signatory state to prevent genocide, to punish perpetrators, and of course to refrain from committing genocide itself.

Specifically, the Court ordered Myanmar to (1) take all measures within its power to prevent the commission of acts of genocide within the scope of Article II of the Convention in relation to members of the Rohingya within its territory; (2) ensure that the Myanmar military, including any irregular armed units directed or supported by it and any organizations or persons subject to its control, direction, or influence, do not commit any acts of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, or complicity in genocide, in relation to members of the Rohingya within its territory; and (3) take effective measures to preserve evidence relating to allegations of genocidal acts within the scope of the Genocide Convention. Within four months, Myanmar must report to the Court on the measures taken to give effect to the order.

Friday, December 20, 2019

Sen. McConnell's Actions Could Make Him Trump's Accomplice

The implementation of Senator Mitch McConnell’s apparent decision to not allow witnesses during the Senate’s impeachment “trial” of President Trump would be tantamount to his becoming an accomplice and arguably co-conspirator to “Obstruction of Congress” charged in Article2 of the Impeachment itself.   

Article 2, similar to an allegation once raised against Richard Nixon, alleges that the sitting president, in addition to refusing to provide properly subpoenaed documents, intentionally discouraged and obstructed witnesses from providing material information and testimony to a legitimate congressional investigation of whether that president attempted to extort (and sought to bribe) a foreign government in order to obtain their assistance in defaming a potential presidential opponent.  

Senator McConnell's refusal to allow material witnesses to be called in the Senate trial, while at the same time supporting a position that grounds for removal have not been established in the absence of information the very information these witnesses would testify to, would constitute aiding in the furtherance of the president’s obstruction of Congress. House Speaker Nancy Pelosi, in the face of Senator McConnell's continuing refusal allow witnesses to testify during a Senate trial, is simply refusing to cooperate in a continuing and unpresented and impeachable effort by the president to obstruct congress from properly investigating that president’s criminal abuse of his office.

Wednesday, October 30, 2019

Visual Aids Can Compliment a Law Professor's Teaching Strategy

By Professor Aaron Caplan

Visual aids are not the most important thing a law teacher does in the classroom. They can never substitute for well-chosen material, clear organization, thoughtfully chosen in-class activities, being a good explainer or being a good listener. With that said, good visual aids can help students learn more effectively – and bad visual aids make learning harder.

A series of videos based on a presentation I gave at the AALS New Law Teachers Workshop in June 2019 explores what makes successful visual aids work. The first segment explores the psychology of multi-media learning, providing a theory for preparing visual aids that complement one’s lesson plan and not detract from it. The following segments provide examples of visual aids that I have used with success in various classes, including illustrations, visual renderings of legal texts, visualizations of concepts, and more.

The videos can be reached here:

Tuesday, October 15, 2019

Wealth, Philanthropy and Politics — Considering 'Wealth Tax' Proposals

By Professor Ellen P. Aprill

This op-ed originally appeared in the Tuesday, October 15, 2019 edition of The Hill.

The impact of private wealth on public policy through tax-exempt organizations has garnered much attention of late, with recent scandals involving the Sacklers, Jeffrey Epstein, and a number of prestigious universities. Recent critiques, however, fail to emphasize sufficiently the role of wealth in campaign finance. Citizens United and the rise, in its wake, of Super PACS able to solicit and spend unlimited amounts make such consideration crucial. Today more than ever, political power of the wealthy means that government spending, like charitable spending, is likely to reflect the interests of the wealthy.

Current proposals for a wealth tax also need to confront this issue. On Sept. 5, as part of the Brookings Papers on Economic Activity, Emmanuel Saez and Gabriel Zucman presented an important new paper on progressive wealth taxation. The Saez-Zucman paper describes a wealth tax as a means of reducing wealth concentration needed because of such concentration’s effect on democratic institutions and policy-making. (The paper notes that political contributions are extremely concentrated, with 1.01 percent of the population accounting for over a quarter of all such contributions.) According to those present, discussion at the session included whether a wealth tax would reduce billionaires’ political influence.

To prevent abuses of a wealth tax, the Saez-Zucman paper proposes that donor advised funds — accounts at public charities for which donors can make recommendations as to the distribution or investment of amounts in the accounts — and funds in private foundations controlled by funders “should be subject to the wealth tax until the time such funds have been spent or moved fully out of the control of the donor.” (The paper leaves to another day the question about how to treat private foundations no longer controlled by the original funder and how to avoid gaming of “control.”)