Author: TSA Press

PENTAGON: The Pentagon’s top lawyer has ordered the collection of all documents related to the Ukraine military aid at the center of the House impeachment investigation.

In a letter sent across the Pentagon, General Counsel Paul Nay directed officials to “preserve all documents, records, and writings, and any associated attachments, in any format,” that relate to the Ukraine Security Assistance Initiative, and direct any requests from outside the department Office of Information Counsel. The letter was made public today. 

DoD spokesman Jonathan Hoffman told reporters Thursday that gathering the relevant materials is meant “to ensure that all appropriate department information is available on this matter,” adding that “DoD offices should provide any pertinent documents and records to the Office of General Counsel for cataloguing and review.”

House Democrats launched an impeachment investigation after a White House whistleblower flagged a July 25 conversation between Trump and new Ukrainian President Volodymyr Zelensky, in which Trump asked for a “favor,” suggesting an investigation by Ukraine of former Vice President Joe Biden and his son, Hunter. Biden is the Democratic front-runner to challenge Trump in next year’s presidential election. The administration had ordered a last-minute review of Ukrainian military aid, holding up its release for several months. Following the call and whistleblower complaint, the House Intelligence Committee’s chairman, Adam Schiff, asked for a copy of the Intelligence Community’s whistleblower’s complaint on Sept. 10. Congress was notified that the Ukrainian aid was released by the administration the next day.

Hoffman was unable to provide details on when Pentagon leaders were first made aware that the $250 million aid package had been frozen, or why. Some Republican lawmakers like Lindsey Graham have suggested the hold came at the behest of the Pentagon, which allegedly considered Zelensky an unknown quantity. However, DoD had certified in May that Ukraine had made enough progress on addressing corruption to allow the assistance to flow without worry.

The July 25 call came several days after Defense Secretary Mark Esper was confirmed for the job. Hoffman said Esper was not on the call, in which Trump asked Zelensky for “a favor” after Zelensky bought up the delivery of Javelin anti-tank missiles.

Hoffman downplayed the significance of the document scrub, calling it “a fairly standard practice that when there’s a significant level of congressional or [inspector general] interest in a matter.”

The type of paper and electronic files that will be swept up in the General Counsel’s effort include records and conversations held inside the building and with other agencies centered on the aid delay.

Asked why Esper was not on the Ukraine call, Hoffman brushed off the need for Esper’s involvement. “The secretary has an incredibly busy schedule, he doesn’t spend most of his days sitting in on other people’s phone calls,” he said.

Asked about the Ukraine situation late last month, the SecDef responded, “I’m not going to get into any of that right now. I’m trying to keep DoD out of politics.” Esper pledged at his first news conference to keep the Defense Department apolitical.

European Command chief Gen. Tod Wolters, speaking to reporters at the Pentagon on Thursday, said he has had “zero conversations” with foreign counterparts about military funding for Ukraine. “I haven’t had any conversations with my mil-to-mil counterparts or with anybody, about concerns over investments in the Ukraine,” he said.

One of the key pieces of equipment the Ukrainian government has been eager to receive, as evidenced by Zelensky’s comments during the call, are Javelin anti-armor missiles. Wolters said “you see a little bit of a bounce in the step of a Ukrainian soldier when he or she has had the opportunity to embrace this system that allows them to better defend their turf.” 

Just hours after Wolters sang the praises of the Javelin, the State Department announced it had approved the sale to Ukraine of another 150 of the missiles along with related equipment worth up to $39.2 million. The weapon, State said in a release, will help Ukraine “build its long-term defense capacity to defend its sovereignty and territorial integrity in order to meet its national defense requirements.”

It’s rare in a murder case for the family of the victim to show mercy toward the convicted assailant.

Even though many people profess values of “turning the other cheek,” few of them, when confronted with the murder of their child, sibling, parent, or friend, ever reach a point when they can say, “I forgive you.”

Calls for “justice” for the person killed often become a rallying cry at trial and are mirrored by newspaper headlines.   But “justice” is often synonymous with “revenge,” when there’s no room for considering the assailant as a human being with his own tortured story, who’s often sorry for what he did and will carry the burden the rest of his life.

That’s why what happened at the sentencing of former police office Amber Guyger last week in Texas was so surprising.

Guyger was found guilty of killing Botham Jean, her upstairs neighbor.  After returning from a long shift on the job, Guyger parked on the wrong level of her complex and mistakenly entered Jean’s apartment rather than her own.  Believing him to be an intruder, she shot him. (I wrote about this last week and predicted, because of how well she did testifying, that she would be convicted of manslaughter rather than murder. But I was wrong. What I didn’t know was that in her testimony, she admitted she intended to kill Jean when she shot him.  Jurors read this as an admission of guilt.)

Texas is among a handful of southern states that permits the jury (as opposed to the judge alone) to determine what sentence the defendant should receive.  In many cases, it makes sense for a jury to decide the sentence in keeping with what the community feels at the time, as opposed to mandatory-minimum sentencing thought up by legislators sometimes decades earlier. In this case, the prosecutor wanted Guyger to receive a 28-year sentence.  The jury, however, decided 10 was enough and the judge agreed.

Sentencing included impromptu testimony given by the deceased’s 18-year-old brother, Brandt Jean.  During a victim-impact statement, Brandt took the stand and detailed how he felt about his brother’s death and what he thought of the defendant. Surprisingly, he called for mercy and not revenge.  He said he wanted the “best” for Guyger and, in a dramatic moment that left even the judge teary-eyed, asked if he could come down from the witness stand and hug Guyger in open court.  He was permitted to do so, and the ensuing video became a news and social media sensation.

The jurors, who’d already decided that 10 years was a fair sentence, felt vindicated in their decision.

According to the Jean family lawyer, Brandt never intended to say anything at the sentencing but was moved at the last moment to state his position. It was unexpected, heartfelt, and showed a remarkable amount of courage to recognize the suffering of the defendant in the midst of his own suffering.  (The judge, also, did something unusual.  Following sentencing, she left the bench, hugged the defendant, and handed her a bible. I can’t imagine that ever happening in New York.)

Outside the courthouse, protestors denounced the 10-year sentence as too short and imposed only because the victim was black and the assailant white, but Brandt stuck to his position — putting Guyger in jail wouldn’t bring his brother back.

Out of the mouth of babes.

Hating the person who killed a sibling and carrying that hate forever doesn’t make anyone better or lessen the grief.  Closure is important, and for those few with the compassion to forgive, perhaps closure comes quicker with forgiveness.

I have my own high-profile sentencing this week in the murder of “Junior” Lesandro Guzman Feliz.  My client, Manuel Rivera, was 18 years old at the time, and although on the scene and pictured in a video of the event, he never intended that “Junior” be killed.  His story and Junior’s intersected in one horrible moment of violence a little over one year ago.  It will now result in each family losing their son as my client will be sentenced to a minimum of 20 years to life, potentially without the possibility of parole.

I had another murder case where my client’s mother and the victim’s mother were in court the same day, sitting just a bench apart.  The victim’s mom wore a T-shirt with her son pictured on it.  The two women didn’t know each other, but I introduced them.  I didn’t know what would happen.

Within seconds, they stood, hugged, and cried, mourning the shared loss of their children.

Somehow it felt more humane, even in the midst of the tragedy, to do that rather than ignoring or hating each other forever.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

Now its 12th year, The Law Department Operations Survey, presented by the Blickstein Group, has been the definitive resource for benchmarking and building understanding around the profession since well before the concept of “legal operations” even entered the general industry parlance.

The LDO Survey provides law departments with a consistent platform to benchmark themselves against their counterparts and industry peers. This survey is intended for the top person in legal ops organizations and addresses subjects ranging from ALSPs, Artificial Intelligence, Technology Effectiveness, Alternative Fee Arrangements, and more than 100 additional data points.

If you are your organization’s operations head, please participate in this year’s survey and receive exclusive access to the complete results, an unparalleled resource of insight into KPIs and reporting, eDiscovery best practices, legal spend, law department management strategy, and more. (A publicly available report on the survey’s findings will be published later in the year.)

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Suppose you produce documents to a regulator.

The regulator writes back, asking you to identify specific documents by Bates number.

Outside counsel said that you’d provide the Bates numbers by Monday.

On Tuesday, you weren’t sure if the Bates numbers had yet been provided.  So you sent an email to outside counsel:

“I haven’t yet seen a note transmitting the Bates numbers.  Have you sent the information?”

The phone rang:  “I haven’t sent the regulator the Bates numbers yet.  This is harder than I expected.”

“Okay.  Did you send a note to the regulator saying that you weren’t sending the Bates numbers, as you had promised, apologizing for this, and telling the regulator when you’d actually be producing the numbers?”

“No.”

“Why not?  What do you suppose the regulator is thinking?”

“I don’t know what he’s thinking.  Maybe he’s thinking, ‘I have the damn documents.  It’s my job to look through them.  I have no right to ask BigCo to specify Bates numbers, and I should just do my job.’”

I understand the frustration of outside counsel.  Identifying Bates numbers is no fun — even for the associate who’s actually doing the work.  But I guarantee you that the regulator is not thinking, “Gee, I suppose this problem is my fault.”  People don’t think that way.  The regulator is thinking, “You promised the information on Monday.  You didn’t get it to me on Monday.  You’re irresponsible, and I’m going to hold this against you.”

So you can either prompt this reaction — by your silence — or write a note to prevent this reaction.

Which do you suppose is better?

It’s just common sense.

Here’s another example:  Last year, you got settlement authority of $450,000 in a case.  It turns out the case will settle for $457,000.  Two choices:  Put in the computer system that, “We need $457,000 to settle a case.”  Or enter into the computer system, “Last year, you approved $450,000 to settle a case.  It turns out that we need slightly more than that to make the case go away.  I’m submitting a request for an extra $7,000, for a cumulative total of $457,000 to settle the case.  The current request for approval relates only to the incremental $7,000.”

Which is right?

One causes the reader to curse:  “This is a big request for settlement authority!  How come I haven’t heard about it before?  Why are these things always being thrown on my desk without warning?”  The reader will then flip through the computer, figure out what’s really happening, and curse again:  “Why didn’t they tell me it was just a $7,000 increase?  This is nothing; I could have approved it in my sleep.  What idiots for not explaining the situation to me!”

You didn’t get any credit for this having been an insignificant request.  Rather, you were mentally cursed once for the appearance of it having been significant and were then cursed a second time for not having explained the situation.

Try to avoid having your boss curse you twice. 

I know what you’re thinking:  “Herrmann, you’re such an idiot!  Why are you writing about two discrete situations?  They won’t occur in my life.  Why waste time with this?”

Of course these precise situations won’t occur in your life.  You’re supposed to reason by analogy.  Consider how the other person will react, and then preempt the negative reaction.

The potential client receives an email from outside counsel prospecting for business:

“You were just sued in my local federal court.  I thought you might appreciate the notice.  I’ve attached a link.”

What does in-house counsel think?  Two choices:  “I really must hire this person.  That email contains truly thoughtful analysis of the new case.”  Or:  “What an idiot.  He sent me the link without any explanation of what’s behind it.  He’s a fool, and he surely doesn’t deserve to get retained.”

In terms of business development, sending the email was worse than nothing.  You affirmatively decreased your chances of being hired.

Or suppose you must send some task to your boss, a computer illiterate, through the computer system.  How do you follow up?  Two choices:  Not at all.  The computer will nudge your boss, and your boss will figure out what to do.  Or:  Send an email.  “The computer will soon nudge you to do X.  This relates to the case of Y.  You must go into the computer system and approve what we’ve done.  I’ve attached a link to the relevant page of the computer system below.  If you approve of our action (and, in my opinion, you should), please click on the link and indicate your approval.”

See?

It’s a pain in the neck.  But the truth is that no one cares about you.  People care about themselves.  So, be loved:  Make life easy for the other guy.

It’s the golden rule.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

The ethics rules that govern Federal judges are kinda a mess, and Elizabeth Warren has a plan to fix it (natch). Yesterday was the anniversary of the confirmation of Brett Kavanaugh, arguably a nadir for judicial ethics, and so, today Elizabeth Warren unveiled her latest plan, this one to revamp the judicial ethics rules.

The problem of ethical inquiries being stymied by judges leaving their current jobs has reached a crescendo. The inquiry into Kavanaugh’s behavior disappeared because he left the D.C. Circuit when he got elevated to the Supreme Court. The inquiry into allegations of sexual harassment in the chambers of once-prominent Ninth Circuit judge Alex Kozinski were halted, mid-controversy, when Kozinski handed in his retirement papers. Judge Maryanne Trump Barry pulled a similar move when she retired from the Third Circuit, ending all hope that an ethics inquiry would reveal whether the judge was involved in tax evasion.

Warren’s plan would allow these inquiries to continue, as reported by Huffington Post:

“My plan extends the authority of the Judicial Conference to former judges so that individuals under investigation cannot simply resign from the bench to avoid accountability,” Warren said. “This provision would allow the judiciary to reopen the investigations into Alex Kozinski, Maryanne Trump-Barry, Brett Kavanaugh, and any other judge who benefited from this loophole.”

And what about the lack of accountability for the Supreme Court? Does the fact that the Code of Conduct for United States Judges does not extend to the Supreme Court rile you up? Warren too. Her judicial ethics plan would extend the Code’s reach to the high court

“Because the Supreme Court is not covered by a Code of Conduct, no procedure exists to file new complaints” against Kavanaugh, Warren said.

She added that “questions are often raised about the behavior of Supreme Court Justices, such as Justice Thomas’s 13 years of financial disclosures that failed to list $690,000 in payments to his wife from the Heritage Foundation, a right-wing judicial activist group ― but these actions are beyond the scope of current rules.”

Such lack of oversight, Warren said, has gone on for long enough.

“These changes will not only allow us to ensure accountability for bad actors, including reopening inquiries into the conduct of offenders like Brett Kavanaugh,” she wrote. “They will also hold the vast majority of judges who act in good faith to the highest ethical standards, and in the process, begin to restore accountability and trust in a fair and impartial federal judiciary.”

Warren’s plan would also take recusal decisions out of the hands of the judge involved, require SCOTUS to give a written decision when a party asks for a recusal, and give disciplinary tools — such as revoking nonvested pensions — to judicial ethics watchdogs.

Sounds a lot better than just crossing our fingers and hoping judges and justices will act ethically.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Kinney Recruiting is assisting an AmLaw 100 firm on its search for a Trusts and Estates attorney to join it’s thriving Chicago practice. This firm is renowned for its outstanding culture and it does not hire an associate without a plan for the attorney to become a partner. We are seeking a T&E attorney with at least four years’ experience to work closely with two of the firm’s leading T&E partners and to make a career with the firm. The hired associate will also assist other partners in the group but most of the work will come from the two leaders.

The practice that you would join includes business succession and philanthropic planning, tax, wealth preservation, family office management, trust administration, creation of estate plans, and the management and protection of wealth. Additionally, the groups advises financial professionals, and clients on the funding, creation, and maintenance of business entities and trusts.

This firm is offering top compensation, a long career, and the opportunity to work with its best T&E partners. If you are interested in learning more, please apply through this posting or submit your resume to jobs@kinneyrecruiting.com.

Delivering Efficient and Effective Box Reviews: 2 Powerful Case Studies

Environmental and Construction Litigation

A public entity involved in environmental and construction litigation, engaged Hire Counsel to locate specific documents in 1,500 boxes containing files dating back up to 100 years. The project management team set up facilities, identified processes, oversaw quality control and managed the communication flow between the contract team and attorney supervisors.

Outcome: Project delivered successfully and the next review is on the horizon.

Product Liability Litigation

A National Healthcare Organization was facing product liability litigation which necessitated a review of thousands of boxes of documents at five storage facilities around the country. A team of 100 document review professionals was mobilized to index, code and scan the contents.

Outcome: Review was completed on time and under budget, client has re-engaged for additional projects.

Hire Counsel employs the people, the process and the fortitude to get it done right.

They have the resources and processes to provide the right solution to meet even your most formidable document review needs – anywhere, anytime. All of their services are aimed at reducing risk to clients and increasing review team output while also providing a defensible process on time and on budget.

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Proprietary Candidate Database & Search Methods

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When you need the right legal talent, in the right place, at the right time, you need Hire Counsel.

A few years back, the Second Circuit told BakerHostetler that, no, they can’t represent an alleged fraudster when they’d previously been representing the victim. It seemed straightforward enough and frankly it was a little shocking that the firm thought they could get away with it. But not as shocking as new emails out there suggesting that after being ordered off the case, BakerHostetler continued acting as shadow counsel for Prevezon, a company at the heart of the Russian influence campaign that ensnared the Trump campaign.

It was the brouhaha over the Magnitsky Act that brought Natalia Veselnitskaya to Trump Tower during the campaign. That law was named after Sergei Magnitsky, the attorney who inspired U.S. sanctions on Russia after dying in Russian custody for exposing… the fraud Prevezon was charged with.

After the courts benchslapped BakerHostetler for trying to perform an endrun around basic professional responsibility, it seemed as though this was over. But new documents acquired by the Dossier Center and reported by the Daily Beast indicate that BakerHostetler took this order and promptly wiped its proverbial ass with it.

Emails apparently sent to and from lawyers at BakerHostetler, however, suggest that the law firm continued to serve Prevezon as a kind of shadow counsel even after the disqualification.

Once that ruling had been handed down, leaked emails indicate that in November 2016 Cymrot at BakerHostetler suggested an alternative lawyer who could be hired by Veselnitskaya to work for Prevezon. In an email sent five months later, Cymrot said BakerHostetler had still discussed the case “on a regular basis” and would continue to hold “team” meetings with the new counsel.

Despite being disqualified from taking part in the case, the emails suggest BakerHostetler helped draft the settlement with the U.S. government in May 2017 and even acted as a go-between, passing on messages and an invoice from the new lawyer, Mike Hess. Hess did not respond to questions from The Daily Beast. BakerHostetler was asked about this and other allegations, but did not respond.

Oh, and the documents say that Faith Gay, then of Quinn Emanuel and now of Selendy & Gay, was also publicly representing Prevezon while coordinating with BakerHostetler behind the scenes. Apparently there’s an email from a Quinn associate in 2017 flagging the “question” that could be raised if people learned that BakerHostetler was still working on the case.

If you’re thinking that the work BakerHostetler was doing for Prevezon sounds like the sort of work Skadden was doing in Ukraine — work that probably should have triggered registering as a foreign lobbyist — well, that’s an issue too!

At the end of April 2016, emails suggest a BakerHostetler invoice addressed to HRAGIF described professional services at a cost of $111,387.45, including issues relating to the Magnitsky list, which named the sanctioned individuals, for “review and markup materials regarding issues with Magnitsky Act” and “materials for Congressional committee.” It also included numerous line items on time spent discussing “lobbying registration requirements” and “review of… FARA requirements,” as well as drafting the “certificate of incorporation” to set up HRAGIF in the first place.

According to a leaked email dated July 14, 2016, [Mark] Cymrot wrote to Veselnitskaya to explain the invoices. “Natalia: I am attaching the HRAGIF and Prevezon matter,” the email says. “It now contains 5 months of Baker time, which is largely support for the public relations effort.”

“It seems that the purpose in creating this nonprofit was to avoid registration under FARA, and they would not be the first law firm to try and use that tactic to avoid registration,” Fischer, from the Campaign Legal Center, told The Daily Beast. “That’s what Manafort did on behalf of the Ukrainian political party and it’s also what helped lead to the charges against him because the evidence showed—and he knew—that the beneficiary of his activities was actually the Ukrainian political party not this innocuously named sham nonprofit.”

The Daily Beast quotes former prosecutor Cristy Phillips delivering the best summary of what BakerHostetler’s actions mean if all of this turns out to be true:

“The integrity of our judicial system depends on lawyers upholding their obligations as officers of the court. Most fundamentally, if a court issues an order, lawyers have to follow it and make sure that others on their side follow it. There were numerous senior lawyers on these emails and they all clearly violated a Second Circuit court order. And these were not inexperienced lawyers, several of them are former Department of Justice attorneys,” she told The Daily Beast.

“We’re talking about a case where witnesses had died and other witnesses’ lives and safety had been threatened. These were not low-stakes decisions.”

Email Leak Exposes Trump Tower Russian’s Dirty Lobbying Operations [Daily Beast]

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Listen, we all know the Supreme Court clerkship club is one of, if not the, most exclusive clubs in the entirety of the legal profession. And Above the Law has certainly done our part in perpetuating that belief, what with breathlessly reporting on each hiring decision. But what if maybe, just maybe, Supreme Court clerkships weren’t the gold seal of excellence in the legal profession many believe it to be?

Cue the chant.

At an event last week hosted by the National Constitution Center marking 100 years of clerkships on the Supreme Court, former SCOTUS clerks appearing on the panel thought there was too much importance placed on the job. As reported by Big Law Business:

“Do I think Supreme Court clerks are untalented? No. I think that hiring somebody who has worked at the court does give you an inside perspective,” said Rory Little, a visiting professor at Yale Law School. Little is an experienced high court clerk who worked for Justices William Brennan, John Paul Stevens, and Potter Stewart.

“But there is certainly a ton of people who are amazingly talented at whatever they’re doing who didn’t clerk there,” said Little

Little went on to note that the emphasis Biglaw firms place on their SCOTUS clerk hires in their pitch materials to clients is overblown. And Little wasn’t alone in his assessment of clerkships as the golden ticket of lawyering:

John Elwood, head of the appellate and Supreme Court practice at Arnold & Porter in Washington and a clerk for former Justice Anthony Kennedy, agreed.

“I know Supreme Court clerks who are not very good lawyers and who are not very good writers,” Elwood said. “And I know people who have never clerked on the Supreme Court who are vastly more talented.”

So remember, while having a clerkship on your résumé might be a nice feather in your cap, it is far from the only thing that makes a great lawyer.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

As has been reported in a number of venues (including on ATL last week by Kathryn Rubino), bar-passage rates in many states are looking better this fall than last fall.  Although large jurisdictions like California, New York, and Texas have yet to report their results, an aggregate national improvement in passage rates this year is likely given that we already know that 2019 average national performance on the multistate, multiple-choice component of the bar exam (a component which is used across the country and which in many states also serves as the baseline to which the essay or performance-exam scores are scaled) improved compared to 2018.  And results so far from large states — small states with a fewer takers are less likely to representative of national trends — like Illinois and Florida seem to bear out these expectations.

Indeed, in some ways, the bar-passage percentages being reported by states so far this year may actually understate the true improvement in bar outcomes, since in the 30 or so states that have adopted the Uniform Bar Exam (UBE) a taker is reported as having failed if his score doesn’t meet the passing threshold in the state in which he physically took the UBE, even if he plans to and does successfully transfer his UBE score to another state with a lower UBE-passing threshold.

For example, if someone sits for the UBE in Illinois and gets a 263, she is listed by Illinois as having failed because Illinois’ UBE cut score is 266, even if her plan had all along been to use her UBE score to be admitted in Minnesota, where the cut score is 260, and she took the UBE in Chicago rather than Minneapolis simply for reasons of convenience.  Indeed, because it should not matter where one takes the UBE — that’s the whole point of the UBE — the ABA reports on bar passage at each school, the data for which is not collected until February of the next year (by which time we can know if someone actually did transfer a UBE score to a state other than the one where the UBE was taken), should list such a person as having passed rather than failed.  This is especially true now (since this summer) that the ABA’s bar-passage standard for law school accreditation does not look to “first-time” success at all, but rather to “ultimate” success (that is, passage within two years of law school graduation).  First-time pass numbers have no regulatory relevance, but are publicly reported simply for consumer benefit.  And since where people take the UBE may be irrelevant to where they seek to practice, consumers may be misled rather than informed if the hypothetical Chicago UBE taker described above is listed as having failed rather than passed.  Since I’m talking about the May 2019 changes in ABA bar-passage standards, let me mention another underdiscussed aspect — the apparent requirement that law schools disclose bar-passage statistics by race, ethnicity, and gender as well as in the aggregate.  Some states have historically made public bar-pass rata on an ethnicity-by-ethnicity basis statewide, but not for each law school.  In interpreting such school-specific data, consumers should be careful to realize that at some law schools, the number of exam takers in some underrepresented ethnic or racial groups may be too small over a one- or two-year period to generate any statistically significant inferences.

Even though results at the national level this year will be better than for the July 2018 exam, I would not go so far as Ms. Rubino did when she wrote that this year’s results so far “actually look impressive.”  July 2018 results were abysmal, and July 2019 results may take us back, roughly speaking, to where we were nationally in 2017, which itself was quite a poor year by historical standards.  I am speaking here in broad generalities — many law schools have had bar pass rates that have held up quite well; indeed, at the University of Illinois, we have been lucky enough over the past four years to see pass rates higher than our (already strong) historical averages.  But if we are looking at all law schools throughout the country, and if the baseline is not 2018, but rather 2012 or 2013, then we are still far away from “normalcy.”

Still, any improvement is to be welcomed, and it behooves us to think about what accounts for (what I hope is the beginning of a sustained) national improvement in pass rates.  A number of factors might be responsible for this year’s uptick.  First, the reduction in law school class size might mean fewer people are graduating law schools who lack the academic skills to pass a bar exam.  Certainly a decrease in the size of graduating law school classes seems to be the biggest factor driving the improved job placement statistics we have seen for the classes graduating in 2017 and 2018.  (Again, I am speaking in the national aggregate here; a particular law school’s dramatic improvement or small decline in placement success might be attributed to school-specific factors.)  That is to say, a right-sizing between supply and demand for new lawyers has helped boost employment rates.

With regard to bar passage, it might be that law schools (for better or worse) are taking fewer chances on admitting people who might lack the academic preparation for law school and bar passage success (or perhaps schools are more actively ushering such students out after the 1L year so that these students never graduate.)  It is hard to know how powerful this explanation is, since even if we can observe that law schools have improved the LSAT scores and college GPAs recorded at the 25^th percentile of their entering classes (and students with scores and grades in the bottom quartile are thought to be most academically at risk within any law school), the 25^th percentile numbers don’t tell us what the distributional tail — that is, the makeup of the people within the bottom quartile — looks like.

A second explanation is that law schools are doing a better job, whether by tweaking their first-year curricula, adding remedial classes for students most at risk of bar failure, or (even more simply) by incorporating more multiple-choice or closed-book (or both) components into their assessment practices.

My guess is that both of these factors are playing a role.  But it might also be that the lion’s share of the credit goes to the 2019 graduates themselves, and the seriousness with which they studied for the bar exam.  While law school grades can be a significant predictor of bar success at many law schools, even people who did not fare well on law school exams can very often study hard for and succeed on the bar exam itself.  Indeed, my anecdotal sense is that, for many good law schools at least, bar-prep ethic more than any other single variable might help explain who happens to fail the exam.

Let’s hope the improvement trend around the country continues in 2020 and a year from now we are trying to figure out what explains the upswing rather than trying to understand any backslide.

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Vikram Amar is the Dean of the University of Illinois College of Law, where he also serves the Iwan Foundation Professor of Law. His primary fields of teaching and study are constitutional law, federal courts, and civil and criminal procedure. A fuller bio and CV can be found at https://www.law.illinois.edu/faculty/profile/VikramAmar, and he can be reached at amar@illinois.edu.