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Productive Mindset Interventions Mitigate Psychological Friction and Improve Well-Being for Bar Exam Takers
Get PDFBy participating in a brief productive mindset intervention, prospective lawyers improved their wellbeing and performance on the California Bar Exam. Those are the initial results of the research conducted by our interdisciplinary, multi-institutional research team with support from AccessLex Institute and in partnership with the State Bar of California. It did so by mitigating psychological friction and helping test takers reframe stressful experiences. This column discusses our findings and the implications for efforts to make evidence-based gains in bar exam performance, wellbeing, and attorney licensure systems
A Serendipitous Experiment in Percolation of Intellectual Property Doctrine
Get PDFThis Article fills a gap in the literature by providing novel and unique empirical evidence of the impact of percolated intellectual property doctrine versus the impact of isolated doctrine from a specialized court. It relies on the U.S. Supreme Court’s paired decisions in 2014 in Octane Fitness, LLC v. ICON Health & Fitness, Inc.15 and Highmark, Inc. v. Allcare Health Management Systems, Inc.16 to highlight a natural forum for evaluating the effects of percolation on federal legal doctrine. At issue in those cases was the fee-shifting language of Section 285 of the Patent Act: “The court in exceptional cases may award reasonable attorney fees to the prevailing party.”17 Fortuitously, Section 1117(a) of the Lanham Act, enacted twenty-two years after Section 285, contains the identical provision for the trademark and specific types of unfair competition cases that arise under it.18 Moreover, while patent appeals are now heard exclusively by the Federal Circuit, appeals from Lanham Act cases go to the regional circuits.19 The treatment of Lanham Act fee shifting in comparison to Patent Act fee shifting is thus a serendipitous natural experiment that allows a comparison of two forms of doctrinal development.
Using this experimental lens, we engage in a detailed analysis of fee-shifting cases and compare the results under percolation and specialization. Based on the literature, our hypothesis is that percolation is likely to produce doctrine that, while nonuniform, actually adheres more closely to statutory intent. We expect that the percolation blunts the type of judicial hyperactivity20 and activism that mars the decision-making of a specialized court like the Federal Circuit. And indeed, our results bear this out. They demonstrate, for the first time, that lack of percolation led to weaker doctrine in the Federal Circuit than in the regional circuits, despite identical statutory language.
Part I of this Article puts the experiment in context by explaining the role of generalist versus specialized courts in developing legal doctrine and the clear tradeoff between uniformity of doctrine and the advantages of percolation. It provides the theoretical construct that is so in need of empirical validation. Part II begins the empirical study by considering over six decades of Patent Act fee-shifting case law, beginning with the first enactment of a statutory provision in 1946. It describes how, when patent fee-shifting doctrine percolated through the regional circuits from 1946 to 1982, it was relatively stable, and outcomes were noncontroversial and largely congruent with the Supreme Court’s rulings in Octane Fitness and Highmark half a century later. However, with the 1982 introduction of the Federal Circuit as the sole voice in intermediate patent appeals, percolation ceased. Patent fee-shifting doctrine started to harden along rigid and inappropriate lines, eventually taking on the formalistic, inflexible format that was ultimately struck down by the Court in 2014.
In Part III, the paper presents the contrasting case of Lanham Act fee-shifting case law. The Lanham Act fee-shifting provision was adopted in 1974 and has always percolated through the regional circuit courts. Doctrine developed under the Lanham Act provision is less uniform than that found in patent law, as one would expect from percolating doctrine. However, we demonstrate that the Lanham Act fee-shifting doctrine was more consistent with the Supreme Court’s eventual edicts in Octane Fitness and Highmark than was the nonpercolating doctrine of the specialized Federal Circuit. Part IV concludes that percolation does indeed have clear advantages; it is more likely to result in doctrine that preserves the function of the trial court and avoids inappropriate policy making, although at the cost of uniformity in doctrine. Trade-offs indeed must be made when choosing court structures. We discuss our findings and suggest lessons to be learned that may lead to improvements and more informed analysis of the Federal Circuit
Title VII and the Unenvisaged Case: Is Anti-LGBTQ Discrimination Unlawful Sex Discrimination
Get PDFAs discussed herein, courts and individual judges recognizing or not finding actionable Title VII anti-LGBTQ14 claims have offered different rationales in support of their conflicting positions, including three justifications discussed in this project: (1) the meaning of Title VII’s “because of sex” prohibition, (2) the Supreme Court’s and circuit courts’ construction of the “because of sex” provision in the context of sex stereotyping and gender nonconformity discrimination as applied to the anti- LGBTQ question, and (3) associational discrimination theory. Claim-recognizing jurists have looked to Title VII’s text, Supreme Court and circuit court precedent, and the views of the Equal Employment Opportunity Commission (EEOC) in supporting their position. Those rejecting the argument that Title VII covers anti- LGBTQ discrimination have focused on a posited original public meaning of the statute’s text circa 1964 and relied on circuit court precedents holding that sexual orientation and transgender discrimination claims are not cognizable under the statute. Both sides of the debate are catalogued and critiqued herein.
The discussion proceeds as follows. As a prefatory matter, Part I discusses the last-minute addition of the word “sex” to the list of characteristics protected from discrimination in H.R. 7152, the proposed Civil Rights Act, and the path leading to the sex amendment’s inclusion in the legislation signed into law by President Lyndon B. Johnson on July 2, 1964. Part II examines the Supreme Court’s interpretations of the statute’s “because of sex” prohibition, focusing on the Court’s initial sex discrimination decisions and its subsequent recognition of unenvisaged causes of action for workplace sexual harassment, same-sex sexual harassment, and gender nonconformity discrimination. Part III addresses the question of whether sexualorientation discrimination violates Title VII’s sex discrimination ban and examines the justifications supporting and opposing statutory coverage in Hively, Zarda, and Bostock.
Part IV turns to the separate and distinct issue of transgender discrimination and the Sixth and Fifth Circuits’ contrary holdings in G.R. and R.G. Funeral Homes (recognizing the claim) and Wittmer (foreclosing the claim). Part V concludes that the sexual-orientation-and-transgender-discrimination-is-sex-discrimination position is the better, if not best, interpretation and application of Title VII’s “because of sex” proscription. That view best comports with the language of the sex discrimination provision as construed by the Supreme Court, lower courts, and the EEOC and reflects a jurisprudential approach that does not render invisible significant legal and contextual changes occurring in the half century following the enactment of Title VII
Minority Vetoes in Consociational Legislatures: Ultimately Weaponized?
Get PDFIn societies emerging from or at risk for conflict, dividing power among rival groups—called power-sharing—can be an appropriate arrangement to maintaining peace. But how can groups, who are often emerging from violent conflict, trust sharing a government with rival groups that were just recently shooting at them?
A potential solution is the minority veto, which is allows minority groups to block the government from harming those groups’ vital interests. But what sorts of change blocking mechanisms constitute a minority veto? Who gets the veto power, and when can they be used? Do minority vetoes function as effective incentives for ensuring consensus-based support and the protection of minority interests, or are they merely political weapons that logjam governmental actions?
This Paper outlines the advantages and disadvantages of various minority veto design options in the context of consociational power-sharing arrangements, and inspects the formal legislative minority veto mechanisms in Northern Ireland, Belgium, Bosnia-Herzegovina, Kosovo, and Macedonia. Minority vetoes can
In societies emerging from or at risk for conflict, dividing power among rival groups—called power-sharing—can be an appropriate arrangement to maintaining peace. But how can groups, who are often emerging from violent conflict, trust sharing a government with rival groups that were just recently shooting at them?
A potential solution is the minority veto, which is allows minority groups to block the government from harming those groups’ vital interests. But what sorts of change blocking mechanisms constitute a minority veto? Who gets the veto power, and when can they be used? Do minority vetoes function as effective incentives for ensuring consensus-based support and the protection of minority interests, or are they merely political weapons that logjam governmental actions?
This Paper outlines the advantages and disadvantages of various minority veto design options in the context of consociational power-sharing arrangements, and inspects the formal legislative minority veto mechanisms in Northern Ireland, Belgium, Bosnia-Herzegovina, Kosovo, and Macedonia. Minority vetoes can
In societies emerging from or at risk for conflict, dividing power among rival groups—called power-sharing—can be an appropriate arrangement to maintaining peace. But how can groups, who are often emerging from violent conflict, trust sharing a government with rival groups that were just recently shooting at them?
A potential solution is the minority veto, which is allows minority groups to block the government from harming those groups’ vital interests. But what sorts of change blocking mechanisms constitute a minority veto? Who gets the veto power, and when can they be used? Do minority vetoes function as effective incentives for ensuring consensus-based support and the protection of minority interests, or are they merely political weapons that logjam governmental actions?
This Paper outlines the advantages and disadvantages of various minority veto design options in the context of consociational power-sharing arrangements, and inspects the formal legislative minority veto mechanisms in Northern Ireland, Belgium, Bosnia-Herzegovina, Kosovo, and Macedonia. Minority vetoes can
In societies emerging from or at risk for conflict, dividing power among rival groups—called power-sharing—can be an appropriate arrangement to maintaining peace. But how can groups, who are often emerging from violent conflict, trust sharing a government with rival groups that were just recently shooting at them?
A potential solution is the minority veto, which is allows minority groups to block the government from harming those groups’ vital interests. But what sorts of change blocking mechanisms constitute a minority veto? Who gets the veto power, and when can they be used? Do minority vetoes function as effective incentives for ensuring consensus-based support and the protection of minority interests, or are they merely political weapons that logjam governmental actions?
This Paper outlines the advantages and disadvantages of various minority veto design options in the context of consociational power-sharing arrangements, and inspects the formal legislative minority veto mechanisms in Northern Ireland, Belgium, Bosnia-Herzegovina, Kosovo, and Macedonia. Minority vetoes can successfully protect minority groups\u27 vital interests, but vetoes must be designed effectively in the consociational arrangement in order to avoid the veto\u27s weaponization, political deadlock, and increased tension
Mindsets in Legal Education
Get PDFIf you teach 1Ls, you may share the following concern. At the start of each year, we meet enthusiastic and successful students who are passionate about law. They arrive on campus invested in learning, ready to work hard, and eager to participate in class. But trouble brews soon thereafter. Students worry whether they have what it takes to do well, whether they will fit in, and whether they belong in law school. Answering questions in class, many sense (rightly or wrongly) that their professors and peers think that they aren’t smart and that they will not do well. When they encounter difficulty making friends, finding study groups, and connecting with professors in office hours, they worry that “maybe this means that people like me do not belong or cannot succeed here.” Worse yet, discussions in class lead many to lose sight of why they chose to go to law school and the important role that lawyers play in serving the public. These experiences erode confidence in their abilities and their engagement in law school, and they cause distress and undermine well-being. Given the inherent interest of law, our commitment to teaching, and our concern for our students’ well-being, we tell ourselves, there is surely some small change that would allow our promising students to thrive. Yet any solution remains paralyzingly elusive.
This article validates the impulse to treat law students’ engagement, learning, and well-being as interconnected and improvable. Indeed, on this fifteenth anniversary of the Law School Survey of Student Engagement (LSSSE), we applaud LSSSE’s collection of over 350,000 law student responses from 200 law schools forming one of the largest datasets capturing student voices and experiences in law school. We offer a way forward that builds on LSSSE’s rich data and the findings and efforts of legal scholars who have studied law students’ well-being for the past two decades, and we suggest ways in which LSSSE data can be used by researchers who wish to intervene to improve law students’ well-being.
The challenges of legal education during the global pandemic have reinforced what we already knew: law students suffer substantial distress during law school. Even during normal times, law students suffer elevated rates of depression, anxiety, and substance abuse, all of which can depress performance. When law schools suddenly shifted to online education in early 2020 in response to COVID-19, faculties confronted the reality that students face large, variable spikes in mental health challenges, among other problems. Recognizing the strong link between well-being and both academic performance and equity, nearly all law schools temporarily abandoned curved grades.1 However, the challenges to law students’ well-being are not temporary, so other solutions are needed. Indeed, the pandemic will continue to bring stress, illness, and economic pain, among other harms, into law students’ lives for the foreseeable future. More than ever, lasting solutions are needed.
This article proposes one place to start: targeted, psychologically attuned interventions to address the friction that law students experience when transitioning into law school and when preparing for the bar exam. Such interventions promise to transform the recursive cycles produced by interactions between law schools and law students into virtuous ones. The proposal rests on three contentions: psychological friction plays a role in all aspects of the law school experience; problems in legal education can be defined in part as psychological problems amenable to psychological solutions; and such solutions can (and should) be subjected to rigorous, empirical testing.
We break no new ground in suggesting that law schools could benefit by drawing from social psychological insights. As Part I describes, numerous scholars have made this argument over the past two decades. Recognizing the severity of the distress that law students face, the profession and the academy have shown enthusiasm for change along the proposed lines. Yet law schools have not followed their advice—even when presented with promising, concrete proposals. The cause and consequence of this inaction are few effective, empirically measured interventions in legal education.
Our contribution is to explain why such psychologically attuned interventions are becoming ever more feasible, how to pursue them, and why doing so could transform legal education. As we detail in Part II, social psychology has developed several models that provide promising explanations for why law students’ subjective well-being drops so precipitously after matriculation. Part III proffers solutions, with a focus on small-footprint, psychologically attuned interventions that have dramatic results. In passing, we briefly discuss how our own interdisciplinary, multi-institution collaboration used LSSSE data in building a program to mitigate the psychological friction law students experience when preparing for the bar exam. Part IV ends with a call to action. It reviews prior obstacles to improving law students’ well-being, but observes that some have already eroded and identifies opportunities to overcome the remainder
Bringing Informed Consent to the 21st Century: The Impact of an Online Resource and Consent Process on Fertility Patient Perceptions
Get PDFTo determine if the use of a multimedia electronic (e)-learning resource and e-consent process influences patients’ perception of their treatment team and eases the administrative burden
Jost Delbrück: My Friend
No full textA profile and tribute to the international legal scholar Jost Delbrück (1935-2020), written by his good friend and colleague Roger Dworkin. Delbrück was not only a graduate of the Indiana University School of Law, but was also a Maurer faculty member
Safeguard or Barrier: An Empirical Examination of Bar Exam Cut Scores
Get PDFIn 2019, nearly 70,000 people took the bar exam. More than forty percent failed. Given the existing scores required to pass those exams (the “cut score”), nearly 30,000 test-takers otherwise qualified to practice law were lost to the profession. Had the cut score been lower, many would now be lawyers. So it goes every year, with staggering costs. Legal educators devote substantial resources to teaching tens of thousands of people legal skills that never get put to use in law practice. A national crisis in access to justice grows more entrenched. Applicants invest three years and countless thousands of dollars in legal education, then hit a roadblock on the path they had charted to upward mobility and a professional career. The exclusion disproportionately affects the members of underrepresented and disadvantaged groups who stand to benefit most from entry. Concurrently, the profession’s dire need to diversify goes unaddressed, perpetuating the lack of representation and inclusion for broad swaths of the public.
The reasons that the legal profession advances for refusing to lower bar exam cut scores do it little credit. Legal regulators typically defend cut scores as measures of minimum competence, disparate racial impacts notwithstanding. But the bar exam has never been job-validated and fails to meet the substantive antidiscrimination standards imposed on most employment tests. This anomaly leads some critics to suggest that racism and anticompetition are the true drivers of heightened cut scores. More should be expected from the profession entrusted with the rules for reducing discrimination, promoting equity, and ensuring fairness. A common defense for retaining or raising cut scores is that doing so prevents lawyer malfeasance. But the bar exam is not designed to weed out unethical people. Even if it accidentally predicted discipline, it could be inappropriate to use it for that purpose. And either way, use of the exam distracts attention from more effective, less discriminatory approaches, such as behavioral systems and regulations for practicing lawyers.
This paper enters this scholarly and regulatory conversation by testing whether lawyers’ bar exam scores predict misconduct. If they do not, this would weaken the case against lowering bar exam cut scores to promote diversity and access to the legal profession. Importantly, the paper’s aim is not to identify the best way to prevent lawyer misconduct; many better alternatives exist. It is instead a paper about bar exams, lawyer discipline, and the fundamental flaws of a particular strategy that limits diversity
