NCBE Conference reflections: the hot and the cool

by Paul Maharg on 22/04/2012

First of all, a big thanks to Erica Moeser for the invitation to speak, and to Deb Martin & colleagues for all their helpful admin support.  Having just finished hosting the BILETA conference it’s fresh in my mind just how complex & time-consuming conference design & admin is.

This conference has been so instructive for me.  To say that, as a professor of legal education, I have concerns about the purpose, structure and content of the Bar Exam is really just to say what many educationalists think about the construction of an evaluation of professional knowledge, skills and values that pre-dates and is quite separate from, professional experience.   What I learned over the past three days, though, was how painstaking and well-organized the whole process is, how much thought and careful assessment design goes into the Bar Exam.

I was impressed that the whole character & fitness debate is taken VERY seriously not just by Bar Exam staff but by law school admissions staff as well.  It is something that was raised in the Scottish regulatory context in the Law Society of Scotland’s recent consultation process (and I’ve written about that elsewhere); but I think that in Scotland we could learn a lot from the systems that I heard about at this conference.  As a general point it’s pretty clear to me that we can’t really just appoint staff to positions on Discipline Boards or the like without some form of appropriate training on mental health development, as well as training in situationist ethics.  There are issues for regulators here in England & Wales and Scotland, not just frontline regulators but also the Legal Services Board.

It’s also striking how the range of evaluations differ in the Bar Exam ecology, not just from state to state.  I’ve been involved with one Bar Exam exemption project, namely the Daniel Webster Honors Scholar Program at UNH (where they use Standardized Clients & SIMPLE), so I was aware of the varied ecology.  What’s interesting, though, is the basic format of the assessment itself.  There is the cool, objective world of the Bar Exam itself, expressed in numbers and grades (mirroring the LSAT).  There is the darker, indeterminate, hot world of the Character & Fitness narratives (whose problems mirror law school Admission Board issues).  Variation in forms of assessment can be a good thing, but when assessment separates out what is generally in professional practice an integrated way of working, then it can make for problematics in assessment design.

Is there a way of converging these two types of evaluations, the cool and the hot?  It’s kind of a Levi-Straussian structuralist construct — raw & cooked, etc., but representing it like that does open up some of the cultural issues and taboos surrounding the different forms of assessment.  But should they be different?  Should we be working, in the UK’s jurisdictions, on forms of evaluation that can link the two worlds?  I think this is pretty important work.  The QLTS goes some way towards this, but we’re really only adapting medical educational approaches there, and it may be that we can do more on legal professionalism, ethics and situational judgment.  Is there a uniquely legal pedagogy, based upon the forms of practice that lawyers use in the world, and which can be developed for high-stakes evaluation?  This is precisely what our ambition was in developing transactional learning in the GGSL.  It seems to me that lawyers and regulators and legal educators in all common law jurisdictions need to develop something like this.  In the sessions on content analysis and some other forward-looking projects in the Bar Exam ecology I could see movement there.  As Susan Case said, slow movement; but it’s happening.

I stayed over till Sunday — cost of flights back to the UK, etc.  The evening the conference ended the hotel was filled with OTC uniforms and ball-gowns, from Southern GA U, on some anniversary do.  Next morning, it looked like a convention of theatrical costumiers — mannequins, wigs, costumes.  Made me think…  OTC is definitely costume drama.  But then the uncomfortable thought: to what extent is legal assessment costume theatre?  How much of it is earnest drama played to an audience of students, consumers, regulators, the profession, other professions?  Unless we seek constant improvement, that’s what it’s reduced to; but the Bar Conference showed me that this community was indeed moving forward in sophistication of assessment design and practice.

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