COVID-19 Response from The Colleges of Law:

A Pride Month Warning

Recent attacks by politicians on the LGBTQ+ community echo a dark past.

Pride Month is celebrated in June to honor the 1969 Stonewall Uprising, the birth of the modern-day gay rights movement in the United States. In recent years, it has been a time to celebrate the movement’s successes, the slow but steady march to legal equality and social acceptance. This story of progress fits the comfortable narrative of American exceptionalism, but it ignores the rise of stochastic terrorism against the LGBTQ+ community and the historical echoes from Nazi Germany.

Before 1933, Germany was a center of LGBTQ+ community and culture. Berlin was home to nearly 100 gay and lesbian bars and cafes. It hosted the world-renowned Institute of Sexology, an academic foundation devoted to research and the advocacy of LGBTQ+ rights. The Institute was a pioneer in gender-affirming care and coined the term transsexual. It promoted “justice through science” and championed equal rights across the Weimer Republic.

In May 1933, just three months after Hitler took office, the Institute was raided, and all the books in the library were emptied onto the street and burned. At the book burning, Joseph Goebbels, chief propagandist for the Nazi Party, announced, “No to decadence and moral corruption! Yes to decency and morality in family and state!” What began as a project of “protecting” German youth from the perceived immorality of homosexuality would become a mechanism for genocide. The Nazi ideal was of white, heterosexual masculinity masquerading as genetic superiority. Anyone who strayed from that norm was deemed immoral and worthy of total eradication.

We hear echoes in 2023 America of the Nazi Party’s propaganda and the violence it wrought. Politicians have used the same mantra of protecting children to justify anti-LGBTQ+ legislation, including banning books with LGBTQ+ characters or themes. The marriage of white supremacy and homophobia was clear in 2017 when hundreds of avowed white nationalist marched in Charlottesville waving Confederate and Nazi flags while yelling antisemitic, racist and homophobic slurs.

When Adolph Hitler took power, he described a country in crisis due to moral decay and an opposing party with a “totally destructive ideology”. Similar messages have emerged in the United States. In a 2022 campaign ad, Senator Marco Rubio said about a children’s story hour hosted by drag queens, “The radical left will destroy America if we don’t stop them. They indoctrinate children and try to turn boys into girls.” Florida Governor Ron DeSantis tweeted that anyone who opposes a bill dubbed the “Don’t Say Gay” law is “probably a groomer or at least you don’t denounce” it. His use of the term “groomer” reflects an age-old homophobic trope equating homosexuality with pedophilia.

Beyond inflammatory rhetoric, another tactic of Nazi Germany has surfaced: deputizing citizens to police the moral behavior of their neighbors. In 1933, the Gestapo encouraged tips or “denunciations” from the public about immoral behavior that violated the law. Today, in the U.S., some states are introducing bills to allow for criminal prosecution of librarians and educators for distributing “material that is harmful to minors,” thus allowing individual parents  to impose their moral code on all children. A middle school teacher in Illinois was placed on leave and ultimately resigned after parents called the police claiming that she was “grooming students” with access to young adult novels with LGBTQ+ characters. In Missouri, parents called the police about the availability of “sexually explicit” books at the library.

Not surprisingly, the codification of anti-LGBTQ+ sentiment and the use of inflammatory language has resulted in an increase in violence against the LGBTQ+ community.  The U.S. Department of Homeland Security issued a warning about domestic terrorism, citing among other things the November 2022 mass shooting at Club Q, an LGBTQ+ bar in Colorado Springs. GLADD found 191 incidents of anti-LGBTQ+ threats since Pride Season 2022. These threats have taken the form of seemingly benign actions such as product and store boycotts to more menacing actions such as bomb threats.

Although there is no direct comparison nor moral equivalence between Nazi Germany and current events, the early parallels are difficult and dangerous to ignore. Hitler moved slowly, escalating his policies over years, aided by the silence and indifference around him. Elie Wiesel, a Nobel Peace Prize winner and Holocaust survivor, said, “We must always take a side. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented.” Take a side this June. Attend a Pride event, and do not allow the seeds of intolerance and bullying to sprout.


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Exploring Alternative Pathways to Licensure

Given the changing landscape of the legal profession, Dean Jackie Gardina, Ed.D., J.D., calls on the California Supreme Court to explore alternatives to determining readiness to practice law. 

In May of 2023, The Blue Ribbon Commission on the Future of the California Bar Exam (BRC) released its final report and recommendations to the State Bar of California Board of Trustees. The commission, a joint effort between the California Supreme Court and the state bar, was tasked with developing recommendations concerning changes to the California bar exam and whether to adopt alternative pathways, additional testing, or tools to ensure minimum competence to practice law.

This charge was to follow up on the findings of the California Attorney Practice Analysis Working Group (CAPA), which identified the knowledge, skills, and abilities (KSAs) needed by entry-level attorneys in California to practice law ethically and competently. Under consideration were two separate paths to licensure—a bar exam and an alternative pathway. Ultimately, the commission did not reach a consensus on exploring an alternative pathway to licensure that does not involve a bar exam.

However, the Board of Trustees of the State Bar of California Board of Trustees continues to recognize the importance of starting an alternative pathway to licensure. On May 19, 2023, the Trustees directed members who supported an alternative pathway to submit a proposal for consideration.

As noted throughout the work of the BRC, such alternatives could include requiring law graduates to practice under the supervision of an experienced lawyer or requiring specific coursework in law school. This presents a critical opportunity to increase the focus on assessment of knowledge, skills, and abilities for entry-level practice, deemphasizing the need for memorization of doctrinal law.

Knowledge, Skills, and Abilities in Law

Currently, the California bar exam does not reflect the KSAs necessary for new attorneys. Indeed, until 2018, California had never even assessed whether the content of the bar exam reflected what new attorneys did in practice. Even more astounding, California had chosen the 1440 passing score without any evidence to support that it was the score necessary to establish minimal competence. Thousands of bar applicants were failing to meet the standard of minimal competence when minimal competence in California had never been established through any studies.

The ability of standardized exams to measure skills or concepts is dubious. For example, the National Conference of Bar Examiners’ job analysis study found that legal research is the most important skill for new attorneys. Yet, it is not tested. Additionally, a standardized test cannot measure negotiation skills or assess work produced for clients.

Moreover, the legal profession is in flux. What lawyers need to know and what skills and abilities they need to have will change rapidly. There is a mismatch between an exam designed to meet the needs of an industrial economy and a test of competency necessary to meet the needs of a rapidly evolving knowledge economy. Using the same examination format introduced 100 years ago is inadequate to assess the competency of a 21st century attorney.

It’s time to consider alternatives to a standardized exam that has limited value in determining who is prepared to enter the profession as a skilled, competent, and ethical attorney. Even if an exam is necessary to establish foundational knowledge, it is ill-suited to assess many other skills and abilities.

In 2018, the California Practice Analysis Working Group (CAPA) surveyed California attorneys to discover the KSAs needed by new attorneys, defined as those in their first three years of practice. Any alternative pathway must assess the bar applicants on the knowledge, skills, and abilities necessary for new attorneys as identified by the CAPA Working Group.

Jim Henderson, Ph.D., who served as a consultant to help design the surveys for CAPA and later was invited to join the BRC, stated that a supervised pathway to practice alone may be insufficient to assess breadth of knowledge, although sufficient to assess general skills and abilities. Thus, an alternative pathway to licensure may need to include an exam or other assessment of knowledge. Questions regarding the adequate assessment of the KSAs will need to be addressed in any exploration of an alternative pathway to licensure.

It is important to acknowledge that California has already implemented a temporary alternative pathway to licensure.

In 2020, in response to the COVID-19 pandemic, the Supreme Court directed the State Bar to create a Provisional Licensure Program (PLL) for 2020 that granted law graduates a limited license to practice law under the supervision of fully licensed attorneys. To become fully licensed, however, they must pass the bar. The following year, this provisional program was expanded to a pathway programs for individuals who scored between 1390 and 1439 on the bar to become licensed through supervised practice. While both of these provisions have been extended to December, 2025, they are not permanent and still rely on law graduates either taking or passing the bar to ultimately become fully licensed.

The BRC heard from both the provisionally-licensed attorneys and their supervisors during our discussions. While the State Bar has begun to study the PLL program and its participants, the BRC did not have access to the data during its deliberations. The PLL data will be relevant to any exploration of an alternative pathway to licensure.

To be sure, many questions and concerns need to be addressed such as the validity, reliability, and fairness of any measure of competency, as well as concerns about equity. But these issues, and others raised throughout the debate, can be vetted during the next stage in the process. Any proposals for an alternative pathway would need to be submitted for further review and approval.

In the end, advancing the exploration of an alternative pathway is low risk and high reward and should be pursued without delay for California to keep pace with the evolving landscape of the legal profession.


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Law schools and the 21st century lawyer

Legal education, like many sectors in higher education, is facing an existential crisis: how to remain relevant in a rapidly evolving ecosystem.  

For more than a decade the legal services market has gone through significant transformation driven primarily by technology. Yet legal education has failed to adjust. Law schools continue to prepare graduates for careers in a market where the traditional practice of law is shrinking, the business of delivering legal services is expanding, and states—hungry to address access to justice gaps—are considering allowing professionals other than lawyers to provide legal services. Legal education, like many sectors in higher education, is facing an existential crisis: how to remain relevant in a rapidly evolving ecosystem.  

Since 2007, the legal services market has steadily declined, shrinking by more than 10%. According to the U.S. Bureau of Labor Statistics, the legal sector lost 60,000 jobs during the recession, and as of 2017 it had recovered only 10,000. To adjust to the new labor market realities, law graduates are turning to emerging job opportunities in business and compliance where a J.D. is an advantage but not required. In addition, an increasing number of lawyers are working in the so-called “gig economy,” using platforms such as the Lawyer Exchange or AdviseHub to find short-term legal projects. 

While the traditional legal services market is shrinking, the business of delivering legal services is expanding. Rapid advances to technology, including artificial intelligence, allows for the automation of many routine legal tasks. The “other legal services” market, primarily dominated by technology companies, completes tasks that once consumed the billable hours of new attorneys, including document retrieval, e-discovery, full-service patent and literature search, and the filing of court documents. This new market will continue to chip away at every part of the practice of law that is not the pure provision of legal advice.  

Technology is also affecting how consumers seek legal advice. Law is moving from a pervasive one-to-one consultative legal service to one where technology enables one-to-many legal solutions. Platforms such as Rocket Lawyer and Legal Zoom allow consumers to find lawyers and legal solutions at a significantly lower cost. Other technology companies have created solutions for consumers who don’t know if they need an attorney, such as Legal Risk Detector, or who can’t afford an attorney, such as Law Help Interactive. These tools are advancing the democratization of legal knowledge, allowing consumers direct access. 

Despite these advances, a significant access to justice gap still exists in the United States. In a 2017 study, the Legal Services Corporation found that 86% of low-income Americans with a civil legal problem received no or inadequate legal help. The National Center for State Courts echoed this finding when it reported that 76% of civil cases in the state courts had at least one self-represented party. These statistics expose a fundamental failure of our legal system. Access to justice is one of its defining features. In Marbury v. Madison, the Supreme Court case that laid the foundation of the federal judiciary’s power, Chief Justice John Marshall said, “the essence of civil liberty certainly consists of the right of every individual to claim the protection of the laws.”  

Law schools have indirectly contributed to this growing gap. For decades, law school tuition has outpaced inflation. After adjusting for such, public law school is five times as expensive in 2019 as it was in 1985. According to the National Center of Education Statistics, law students graduate with an average debt of $145,500 and an average monthly loan payment of $1,656. Entry level attorneys who work for public service organizations that seek to help underserved communities have a median salary of $50,800. The low salary creates a nearly insurmountable debt to income ratio, making it difficult if not impossible for new graduates to help the underserved. 

States seeking solutions to the access to justice gap are starting to explore alternatives to the traditional legal services model. Technology and market forces are undermining the premise that lawyers, and lawyers alone, can provide suitable legal services. Current laws and regulatory rules, however, hobble the innovation of lower costs means to provide legal help to underserved communities. While laws criminalizing the “unlicensed practice of law” and ethical rules that bar attorneys from working easily across disciplines are intended to protect the public, they also hinder creative solutions to the current crisis.  

Washington was the first state to look to alternative legal service providers. It created a limited license legal technician, also known as a legal technician or an LLLT. An LLLT is licensed by the Washington Supreme Court to advise and assist people going through divorce, child custody disputes, and other family law matters in Washington. LLLTs provide many of the same services as an attorney, consulting with and advising clients, completing and filing necessary court documents, and advising and participating in mediation, arbitration, and settlement conferences. They also help with court scheduling and support clients in navigating the legal system. While LLLTs must complete a defined educational program, it is significantly shorter and less expensive than a traditional J.D. 

Utah, New Mexico, Oregon, and California are also exploring changes to the legal and regulatory framework that governs the practice of law, opening the door to other professionals to provide legal services. The Utah Working Group on Regulatory Reform asked and answered the question “should room be made for people other than lawyers and organizations other than law firms to provide certain legal services?” with an unequivocal “yes.”  The California State Bar created the Task Force on Access Through Innovation of Legal Services specifically to explore how the public interest could be better served by regulatory approaches that encourage innovation in the one-to-many legal solutions created by professionals from multiple disciplines. 

In this environment, law schools have an exciting opportunity to reimagine legal education, a task that hasn’t been done in 150 years. In 1870, Christopher Langdell, the dean of Harvard Law School, introduced the case method of instruction and a first-year curriculum of Contracts, Property, Torts, Criminal Law, and Civil Procedure. At the time, no other law school in the country used that method or taught that foundational curriculum. Now it is standard in every American law school. While law schools have nibbled around the edges of innovation, introducing clinics, externships, and skills-based courses and creating upper-level electives in emerging fields of law, the core curriculum remains unchanged. Law schools continue to teach a 20th century curriculum to students entering a 21st century legal services market. 

Legal education reform takes equal parts courage, imagination, and deliberation. It requires legal educators to eschew precedent, an almost heretical statement in the field of law. It requires them to take risks, an action counter to their training. It requires them to rethink a business model that creates significant student debt with long-term consequences for their graduates. But by embracing this opportunity, law schools can help shape the future of the legal profession and legal services in the United States rather than simply reacting to the changes imposed. They can lead, rather than follow. 

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America’s “Access to Justice” Crisis: Does Cuba Hold the Answer?

While President Trump has proposed a budget that completely eliminates federal funding for a program that provides legal services to people who can’t afford it, Cuba continues to make legal representation available to all of its citizens.  Is it possible for the U.S. to borrow ideas from the Cuban system to address the access to justice crisis?

Exploring Cuba

During the summer session, the faculty at the Colleges of Law are leading a study abroad course to Cuba. Culminating in a one-week trip to Havana, students will be introduced to the Cuban law and legal system—examining their constitutional framework, electoral system, court system, and government structure.

In preparation for the course, I visited Havana in early March. There I learned about Cuba’s approach—making legal representation available to all of its citizens regardless of income level. After I returned home, I wondered if the U.S. could adopt some lessons from the Cuban system.

The “Access to Justice” Crisis Defined

For many that live in the U.S., affording adequate legal representation is difficult if not completely out of reach. And the number of people and populations that are affected by this lack of access is quickly growing—creating an “access to justice” crisis.

President Trump’s proposed 2018 budget will only deepen this crisis. It also shines an important light on the growing access to justice gap in our country and highlights a distinction between how Cuba and the U.S. approach legal services for its citizens.

Legal Services Corp. (LSC)—an independent nonprofit established by Congress in 1974 to provide financial support for civil legal aid to low-income Americans—is among the 19 programs in line for total elimination of federal funding. LSC regularly provides free legal services to 1.9 million individuals every year who live in households with incomes at or below 125 percent of the federal poverty guidelines (or about $591 per week for a family of four).

In addition, LSC also:

  • Helps veterans secure housing
  • Protects seniors from fraud
  • Delivers legal services to rural areas
  • Protects victims of domestic abuse
  • Helps disaster survivors

Due to the rising costs of legal services, dependency on the LSC has increased significantly in recent years.

Here are a few statistics:

  • One in five Americans qualify for civil legal assistance funded by LSC
  • In the last decade, the number of people qualifying for civil legal aid has increased by more than 10 million
  • Even with LSC in place, 80 percent of low and moderate-income Americans have struggled to afford basic legal services

All of this points to a legal system that does not address the need for all of its citizens to have access to affordable legal representation. Cuba, on the other hand, has found a different way.

The Cuban Approach

There are no private attorneys in Cuba.

Instead, they transformed legal services from a market-based privilege for the wealthy to a public right. All Cuban citizens have access to legal services through offices of “La Organización Nacional de Bufetes Colectivos” (ONBC) or “National Organization of Collective Law Offices.”

Informally, the bufetes colectivos started shortly after the Cuban Revolution by lawyers who were sympathetic to the egalitarian goals of the revolution. Their goal was to ensure public access to legal services. More than a decade after the revolution, the National Assembly codified the informal collectives into the ONBC.

The Ministry of Justice sets the fees that the bufetes colectivos can charge based on the complexity of the case, the level of court hierarchy, and number of appeals.

The fees are incredibly low—ranging from 50 cents to $40. Further, if an individual is unable to afford even these low fees, legal services are provided for free. The lawyers receive a flat salary from the government and, at the end of the year, a percentage of the fees collected by the bufetes colectivos.

Can the Cuban System Translate to the U.S.?

The American legal market is changing, albeit slowly. An increasing number of lawyers are already experimenting with innovative alternative fee and service delivery models in an effort to make legal services more accessible and affordable.

Here are just a few examples:

  • Open Legal Services, a Utah-based nonprofit, was built to “bridge the justice gap by providing affordable legal services to low- and moderate-income people.” It charges a sliding scale fee based on income.
  • Janelle Orsi, an Oakland-based attorney, has developed an entire practice dedicated to the sharing economy and uses a flat fee scale based on complexity. Her law firm is a worker-owned cooperative.
  • Avvo.com allows individuals to consult with an attorney for just $39 and then obtain an attorney at a “fixed price.”
  • Rocket Lawyer allows people to download standard legal forms and receive “quick answers from qualified attorneys” on relevant issues.
  • Likewise, Legal Zoom provides a fast and efficient way to find a vetted attorney with flat-fee pricing.

While these groups are making a significant impact, there are still several questions that need to be answered:

  1. Can we combine the market-based innovation of the U.S. with the egalitarian legal services model of Cuba to create community-based “lawyer cooperatives” here?
  2. Can the American system pivot to a system that provides legal services to everyone regardless of income; to a system where quality legal representation is a right rather than a privilege?

These are not easy questions. And the solutions are even more difficult to implement and will take many passionate people to execute. This summer, as students and local attorneys from the Colleges of Law explore Cuba and its legal system, we can at least begin the conversation. Let’s see where we can go from here.

Prop. 63 and the 2nd Amendment: The facts

On March 14, the Colleges of Law will host a debate on whether Proposition 63’s complete ban on magazines with a capacity of more than ten rounds violates the Second Amendment. A microcosm of a much larger national issue, California’s proposition has energized people on all sides of the debate over the individual right to own firearms.

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Building the Next Gen J.D.

The Santa Barbara & Ventura Colleges of Law (COL) is in a position to rethink legal education. To do so, COL is hosting an event Jan. 27-29, 2017, with a lofty goal: to design the next generation J.D. program.

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Executive Action: Time Limited Progress

Last week, the Colleges of Law hosted a forum entitled “New President, New Policies: What Is the Future of Immigration in the US?” Catherine Tactaquin, Executive Director of the National Network for Immigrant and Refugee Rights, discussed President-Elect Trump’s campaign rhetoric and proposed immigration policies.

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