Thursday, March 05, 2009

Portrait of the Street Strategist as Bar Examiner Part 7

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Portrait of the Street Strategist as Bar Examiner - 7 -

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his is the continuing pseudo-treatise on the portrait of the Street Strategist as a bar examiner on how to maximize the effectiveness of the bar examinations as the only reference performance metric (RPM) of the candidate, and how to minimize its inherent shortcomings.

In Part 1, we discussed the oblique ratio decidendi establishing the reason why a person who is not even qualified as an examiner should possess the wisdom to conjure up this treatise.

In Part 2, we discussed the basic operations of the bar examinations.

In Part 3, we discussed the species of bar examiners, their positives and negatives.

In Part 4, we discussed the ego of the bar examiners and reviewed a few idiosyncratic bar questions.

In Part 5, we discussed more questionable aspects of test construction as practiced by the examiners over the years.

In Part 6, we discussed the benefits of converting an enumeration question into a problem-type question.

In this part we shall discuss the bar reforms promulgated by the Supreme Court a couple of weeks ago.

Preemptive coincidence

Talk of preemptive coincidence. Five years ago, in “Lessons from Strategy Myopia,” my very first column for BusinessWorld, there’s a section about the “gift of perfect timing.”

In it, I recounted that the chief executive officer of the largest corporation in the country resigned exactly one month after I wrote “Strategy Myopia,” the classic that spawned the genesis of the Street Strategist.

I wrote Strategy Myopia out of a whim, for no particular reason, except that I was in a writing mood at the particular time; finally, I possessed the power drive to write down the idea that the flagship companies which could have catapulted our country as a major world-class competitor suffered from strategy myopia.

Indeed, the essay “Lessons” itself, was another opus with perfect timing. I wrote Lessons without any intention of having it published because of the very awkward character of the essay. It was unfit for reader consumption; after all, it was an essay about an essay that was just as long.

Yet, in a perfect twist of irony, just as I was giving it the finishing brushstrokes, what I considered as the most unpublishable essay I have ever written became the singular perfect solution to my dilemma – my inaugural column. (By the way, if there’s no such word as “unpublishable,” I hereby coin it.)

Over the years, I have mentioned several instances where articles I wrote with no apparent reason somehow become relevant soon thereafter.

Proactive

This series - Portrait of the Street Strategist as Bar Examiner - is one such coincidence. One day, I was in a writing mood for a legal topic and I realized it was a very long time since I had one.

Aside from being predictable for kilometric discourses, I am also predictable in being unpredictable. I mean, I find it amusing to jump from one field of discipline to another.

I lose some of my cult members, while gaining some, in the process of changing topics. Win some, lose some.

After all, who is the reader who can maintain equal interest in ADHD, traffic analysis, prime numbers, ice trays, bank closures, the Modigliani-Miller proposition, financial evangelism, and now the bar examinations?

And don’t forget the dog and the tower problem.

Anyway, I was just saying that I was in the mood for a legal topic, and out of sheer chutzpah, I applied my genius and wisdom to the design of bar examinations.

Now, if you are a regular follower of the Street Strategist, you may have forced yourself to read the first few parts of this series, and made a mental note: “Oh no, not another irrelevant series.”

Yes, an irrelevant essay would have been surmountable, but an entire series on an irrelevant topic for two months? That’s insufferable.

And so it came to pass, that out of the blue, the Street Strategist embarked on yet another irrelevant series.

But then, in another amusing gift of perfect timing, the irrelevant has suddenly become relevant; the obscure has suddenly become the focused; the immaterial has suddenly become material.

Lawyers and even law professors have requested for copies of this series once finished.

Why?

Some of them want to examine the arguments in this series and see if they can use some of them for a petition to be submitted to the Supreme Court in the coming weeks. Again, why?

As an exemplification of preemptive synchronicity, barely five days after the Part 1 was published, the Supreme Court promulgated new bar guidelines and reforms.

Of course, it was released to the public only by the time Part 4 was published.

What’s so momentous about these new guidelines?

The proposed reforms are extremely radical and revolutionary. In almost a hundred years in the history of the bar examinations no such similar reforms have created instant controversy.

The deans of law schools and other legal organizations are murmuring their reactions, which they shall soon formalize.

Suddenly, what I myself thought as irrelevant, even to the members of the bar and the bench when I started it, instantly gained currency in this particular field of discipline.

Not so much for the wisdom of the arguments but for the roots of the arguments themselves.

The Street Strategist has prepared the groundwork for the debate by providing his own arguments, long before the bench and the bar realized there was going to be a debate in the first place.

The Street Strategist has been demolishing the arguments of his antagonists long before the latter had organized their thoughts, in a game of debate long before the latter knew that there was a game to be organized.

But you are familiar with this style. In my article the “Strategic Stratification of Stocks” I wrote: “Instead elevate the competition to a battle of the minds. You have a headstart. You can set the rules. All the moves are in your head. Since you were the one who elevated the game, then you are the one with the vision to control game. You created the game. It’s a game of strategy. It’s not an analysis war, it’s a strategy war. There’s battle outside it’s raging and it’s not about research anymore. It’s all about marketing your strategy.”

Now, isn’t it amusing to ride on in this journey of ours - full of preemptive coincidences, proactive debates, and anticipatory synchronicity?

Reforms

The reforms promulgated by the Supreme Court are classified by scheduled implementation. These are Group A (within 1-2 years), Group B (within 2-5 years), and Group C (after 5 years) and Group D covering other issues.

Within 1-2 years

1. Initial determination by the Chairman of admission to the bar examinations of candidates (on the merits of the each case) to be passed upon by the Court en banc.

2. Submission by law deans of a certification that a candidate has no derogatory record in school and, if any, the details and status thereof.

3. Disqualification of a candidate after failing in three(3) examinations, provided, that he may take a fourth and fifth examination if he successful completes a one (1) year refresher course for each examination; provided, further, that upon the effectivity of this Resolution, those who have already failed in five(5) or more bar examinations shall be allowed to take only one (1) more bar examination after completing (1) year refresher course.

4. Promulgation of disciplinary measures for those involved in (a) attempts to violate or vitiate the integrity and confidentiality of the bar examination process; (b) improper conduct during the bar examination; and (c) improper conduct of "bar examinations."

5. Disqualification of a Bar Examination Chairperson:

kinship with an examinee who if his or her spouse or relative within the third civil degree of consanguinity; having a member of his or her office staff as an examinee, or when the spouse or child of such staff member is an examinee; and being a member of the governing board, faculty or administration of a law school.

6. Desirable qualifications of Examiners: membership in good standing in the Philippine Bar; competence in the assigned subject;

a teacher of the subject or familiarity with the principles of test construction; and

commitment to check test papers personally and promptly pending the creation and organization of the readership panels provided for in item B(6) below

7. Disqualifications of Examiners: kinship with an examinee who is his or her spouse or relative within the third civil degree of consanguinity or affinity; having a member of his or her office staff as an examinee; or when the spouse or child of such staff member is an examinee; being a member of the governing board, faculty or administration of a law school teaching or lecturing in any law school, institution or review center during the particular semester following the bar examinations; having any interest or involvement in any law school, bar review center or group; and suspension or disbarment from the practice of law or the imposition of any other serious disciplinary sanction.

8. Personal preparation, by handwriting or using a typewriter, of fifty (50) main questions, excluding subdivisions, and their submission to the Chairperson in sealed envelope at least forty-five (45) days before the schedule examination on any particular subject; examiners should not use computers in preparing questions;

9. Apportionment of examination questions among the various topics covered by the subject;

10. Burning and shredding of rough drafts and carbon papers used in the preparation of questions or in any other act connected with such preparation;

11. Publication of names candidates admitted to take the bar examinations;

12. Disqualification of a candidate who obtains a grade below 50% in any subject;

13. Fixing at June 30 of the immediately preceding year as the cut-off date for laws and Supreme Court decisions and resolutions to be included in the bar examinations; and

14. Consideration of suggested answers to bar examinations questions prepared by the U.P. Law Center and submitted to the Chairperson.

Within 2-5 years

1. Adoption of objective multiple-choice questions for 30% to 40% of the total number of questions;

2. Formulation of essay test questions and "model answers" as part of the calibration of test papers;

3. Introduction of performance testing by way of revising and improving the essay examination;

4. Designation of two (2) examiners per subject depending on the number of examinees ;

5. Appointment of a tenured Board of Examiners with an incumbent Supreme Court Justice as Chairperson;

6. Creation and organization of readership panels for each subject area to address the issue of bias or subjectivity and facilitate the formulation of test questions and the correction of examination booklets; and

7. Adoption of the calibration method in the corrections of essay questions to correct variations in the level of test standards.

Within 5 years

Further computerization or automation of the bar examinations to facilitate application, testing, and reporting procedures.

Other issues

Items not covered by the resolution, such as those that pertain to a possible review of the coverage and relative weights of the subjects of the bar examinations, are maintained.

For referral to the Legal education Boards:

1. Accreditation and supervision of law schools.

2. Inclusion of a subject on clinical legal education in the law curriculum, including an apprenticeship program in the Judiciary, prosecution service, and law offices.

3. Imposition of sanctions on law schools that fail to meet the standards as may be prescribed by the Legal Education Board.

4. Mandatory Law School Admission Test.

Comments on Group A

The only items that are critical under the Group A reforms are integrity of the bar (no. 4), the ego of the examiner (no. 8), the judicious apportionment of the questions over the coverage (no. 9).

Coincidentally, I have fully addressed these issues in the earlier part of these series, and therefore my reflections on these issues are public.

However, the most revolutionary of the all the ideas set forth in this Supreme Court resolution is the five-failure rule.

Five-Failure Rule

The five-failure rule (FFR) has taken center stage and is the center of a cacophonous raging controversy in the bench and the bar today.

First issue: Does the Supreme Court have the authority to mandate the FFR, and can Congress pass a law to repeal such mandate in an act of legislative fiat? Unfortunately, in a long line of landmark cases decided long time ago, the Supreme Court has the sole power to qualify candidates into the practice of law.

Second issue: Is there wisdom in the FFR? This is the raging controversy.

Will the Supreme Court yield to requests for the dropping or relaxation of the FFR? I don’t think so. Why? The Supreme Court manifested its wisdom in the cases of DECS vs. San Diego and Tablarin vs. Gutierrez that a student who fails thrice in the National Medical Admission Test (NMAT) loses his right to education to study in a medical school as a medical doctor.

Note that there is a big difference between a mere admission test and the actual board examination for doctors.

If the Supreme Court upheld the validity of the three-failure rule of a mere admission test to medical school, how do you think it will decide on any petition to remove their new FFR for candidates, not admission into law school, but into the actual practice of law?

Actually, when I learned of the San Diego and Tablarin cases recently, although it was decided in 1997 yet, instantly, I thought: “Uh, uh, I hope the Supreme Court will not think devilish ideas with respect to the bar.”

That is now moot and academic. In less than two months since I began to think about the frightening scenario, the Supreme Court did just that.

Indeed, it had devilish ideas.

FFR: Good or bad?

Is the FFR good or bad?

Let the other camp raise their arguments why the FFR is bad.

Here are the arguments why the FFR is good:

1. Moral hazard. The lack of limitation in the number of attempts is actually a moral hazard situation. It is actually an insurance contract where the candidate is insured by no less than the Supreme Court itself, to become a lawyer, even without serious preparation. It’s a certain event that will happen, sooner or later.

2. Removal of the wagering aspect of the bar. I have a friend who is a clerk of court in a Municipal Trial Court and she plans to take her eight bar this year. I have another friend who has a cousin who works in the Supreme Court itself, and has failed the bar five times. These are candidates who are working with the law on a daily basis. Is the bar that tough? Or is the bar exams a mere wager between the candidate and the examiner? Unprepared candidates relying on the wagering aspect of the bar, take the examinations just as if they are wagering in the lottery. After all, it is a mathematical theorem that given infinite number of attempts, the probability of success is unity. As long as there is no limit to the bar, the candidates will take the examinations even without preparation hoping that in due time, the law of statistics descends on them.

3. Focus on preparation. As a consequence of the FFR, the wagering aspect is removed, and the candidate will then rightly focus on preparation. Currently, without the limit, I know candidates who cannot even distinguish if a contract of lease for over one year over a real property can be perfected by mere consent or by delivery, whether it is a consensual contract or a real contract. Yet, they are taking the bar for the third time. And they are asked this question on an open discussion, open book basis. They really have a weak understanding of basic knowledge despite three bar attempts.

4. Getting serious in law school. A common attitude among law students is not to study hard in law school. They reason out that they’ll do the hard work in the bar review. Then in the bar review, they reason out that sooner or later they will pass the bar, anyway, given a sufficient number of attempts. The lack of limitation engenders a moral hazard with respect to their studies. After all, the bar is there forever. After ten times, the student hopes and thinks that he will learn the law.

5. Minimize cost and sacrifice. Given the new limit, only the prepared candidates will take the bar, thus avoiding the multiple costs and sacrifice shouldered by their families. The candidates being forced to take only up to five times, will limit his cost up to the same multiple. Or even lesser because he will not waste his bar opportunities.

6. More first time passers. By limiting the attempts, it is a natural consequence that there will be more first time passers. Why? The logic is simple. A candidate will not waste any opportunity or attempt. He will try to save on his number of lives by making certain each and every bar attempt is done with great preparation. Consequently, given that frame of mind, he may become a lawyer is his first attempt.

7. Few good men. Why is it that only 20% (1 out every 5) pass the bar? Surprisingly, the logic is the moral hazard situation I mentioned earlier. Maybe the bar is tough, or maybe only 20% really deserve to become lawyers. Why lower the quality of lawyers? However, I predict that given the current limits, this percentage will increase because only those who really are prepared will make the attempt. And if they still fail after five attempts, may be they don’t deserve to be the same quality of lawyers who get hired by drug lords, corrupt officials, and abusive greedy wealthy men. And you know what, probably those who will not become lawyers will easily enter into heaven. After all, what is lawyering but the only profession in the world that legally allows you to shield the truth and frustrate justice by defending a guilty criminal?

Comment on Group B

Regarding the creation of Board of Examiners, I am against it, and I have fully reasoned out my apprehensions in the first parts of this series.

Having two examiners for one subject will raise the issue of uniformity of appreciation of the answers. This should be discouraged.

However, given the new limit of attempts, I expect the number of examinees to drop by at least a quarter.

Are you going to wager your remaining balance of attempts by taking the bar without preparation?

I will tackle the issue of objective type of questions in the next edition, but I think the previous few installments reveal my sentiments on this issue.

(Thads Bentulan, July 15, 2004)

streetstrategist@gmail.com

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