Welcome to Fall '23.
The ASP community had a busy summer on the scholarship front, so I have my work cut out for me over these next few weeks. Congrats to all with recent publications.
1. Marsha Griggs (St. Louis), Outsourcing Self-Regulation, __ Wash. and Lee L. Rev. __ (forthcoming 2023).
From the abstract:
Answerable only to the courts that have the sole authority to grant or withhold the right to practice law, lawyers operate under a system of self-regulation. The self-regulated legal profession staunchly resists external interference from the legislative and administrative branches of government. Such resistance allows lawyers the functional independence to challenge laws, policies, and practices in service to the public and the profession. Yet, with the same fervor that the legal profession defies non-judicial oversight, it has subordinated itself to the controlling influence of private corporate interests. By outsourcing the mechanisms that control admission to the bar, the legal profession has all but surrendered the most crucial component of its gatekeeping function to an industry that profits at the expense of those seeking entry. The judicial outsourcing of the bar exam has privatized bar admission in ways that can be detrimental to the goal of public protection and damaging to those seeking licensure. Outsourced self-regulation is a costly and potentially dangerous phenomenon that has left a vulnerable component of our society without remedy to redress harms suffered through the regulatory process and has deprived the public of the procedural protections of transparent governance. This article applies the lenses of multiple political-economic theories to the normative framework of attorney self-regulation and bar admission. In so doing, it seeks to identify justifications for outsourcing a judicial regulatory function that is essential to the goals of self-regulation. This article ultimately questions whether the legal profession has lost, or will soon lose, the ability to regulate itself.
2. Colin M. Black (Suffolk), The Rise and Fall of the Mental Health Inquiry for Bar Admission, 50 Cap. U. L. Rev. 537 (2022).
From the abstract:
For millennia, legal advocates have been expected to have good moral character. There can be no doubt that effective lawyering requires honesty and integrity. Over the years, how character is defined for practitioners has changed. In the 1970’s, the American Bar Association began evaluating bar applicant mental health as part of the good character evaluation. Ostensibly, this was done to protect the public and the administration of justice. In 2017, the American Bar Association recommended the elimination of the mental health questions on the character and fitness portion of the application to the bar. Notwithstanding, many jurisdictions continue to inquire into an applicant’s mental health status as a prerequisite to admission. Recently, however, the growing concern for lawyer well-being has highlighted the criticisms of this prophylactic inquiry. There is little evidence of a causal connection between mental health issues and unethical lawyering. Additionally, meritorious disability discrimination claims have warranted a reexamination of the practice of inquiring about the mental health of bar applicants. To be sure, the American Bar Association, bar authorities, law schools, and local bar organizations have all implemented various programs addressing the symptoms of the profession’s mental health crisis, including changes, and in some cases, the complete elimination of the mental health inquiry of the character and fitness evaluation portion of the bar application. All of these actions lead the author to conclude that the practice of inquiring about a bar applicant’s mental health serves no apt purpose nor predicts the ultimate elimination of the inquiry completely.
[H/t: TaxProf Blog]
3. Carolyn Williams (North Dakota), Brace for Impact: Revising Legal Writing Assessments Ahead of the Collision of Generative AI and the NextGen Bar Exam, 28 L. Writing __ (forthcoming 2024).
From the abstract:
Generative AI chatbots like ChatGPT generate human-like text to interact with users in a conversational way. Most significantly for legal education, users can prompt it to draft legal documents and AI detectors struggle to detect AI-generated content. GenAI products that have been trained on legal databases are not far behind and will not fabricate legal sources, will be able to draw from more current and relevant legal information, and will provide citations to relevant legal sources. Concurrently, the NextGen bar exam, which will be administered beginning in July 2026, will explicitly test legal writing and require students to both draft original legal documents and revise others.
Legal writing professors should choose a mix of assessments to help prepare students for the NextGen bar exam while simultaneously reducing the odds that students are relying too heavily on GenAI to produce a written product without using critical reading, critical thinking, and legal analysis. This article explores how GenAI works, its strengths and weaknesses, its use among students, its ability to produce legal documents, the shortcomings of GenAI detectors, and the skills students need to pass the NextGen bar. It discourages assessment of document drafts as the sole assessment method in legal writing courses, and instead explores a wide range of assessments and adaptations that legal writing professors can use to properly measure student learning in light of GenAI and the skills needed to pass the NextGen bar exam.
[Posted by Louis Schulze, FIU Law]
