Monday, March 02, 2009

Portrait of the Street Strategist as Bar Examiner Part 10

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Portrait of the Street Strategist as Bar Examiner 
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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 Part 7, we discussed the bar reforms coincidentally promulgated by the Supreme Court just after we started this series. 

In Part 8, I proposed the implementation of the fully computerized Pre-Bar Qualification (PBQ) exam to screen out those incompetent to take the bar. The PBQ can also be used in the prejudicature and the mandatory continuing legal education (MCLE) programs. 

In Part 9, we discussed the possibilities that the bar examiner’s answer may be different from the candidate’s answer, and the latter may be correct.

In this concluding part, the Street Strategist offers an integrating philosophy on learning, teaching, and analysis.

Throughout this series, you may have discovered that the Street Strategist has specific comments on specific issues in test construction. They may be scattered all over the place but in his mind, they are neatly and perfectly arranged based on his philosophy.
You may have discovered as well that he feels strongly about certain issues to the point that he completely disagrees with the Supreme Court in its decision to increase objective-type of questions up to 40%. You may think that he has an unjustifiable abhorrence against objective questions.
On the other hand, he thinks that the Supreme Court’s decision was anchored on a well-meaning but backfiring philosophy.
It is therefore, a clash of philosophies: The Supreme Court’s philosophy favors increased objective questions.; the Street Strategist’s philosophy abhors them – zero objective.
Much of his scattered thoughts and strong sentiments about the different facets of the conduct of the bar examinations, or any other examination for that matter, may come across to you as random, disorganized, and haphazard expressions of emotional sentiments.
But they’re not that at all. They are based on the foundations of his philosophy on learning, teaching, and analysis. Whenever he notices a statement or procedure that sticks out against this philosophy, immediately, he points out the inherent weaknesses of such statements.
Thus, throughout this series, what may appear as potshots and reactionary sentiments on his part with respect the bar examinations are actually implementations of his personal philosophy.
Now is the time to integrate all those comments, reactions, and concepts under one sweeping philosophy.
However, being a personal philosophy, you may completely disagree with it.

The Street Strategist calls his philosophy Kennen und Wissen (KW) which is German for “to know” and “to understand,” respectively. He first mentioned this philosophy in his article “The Tobin Tax: a strategy against currency speculation” written in 1999 and is part of his book, Strategy Myopia (2002). He has since mentioned KW in subsequent articles.
It was his humanities professor in college, who emphasized that to learn is to know and to understand. The professor wrote: x = a + b. To learn = to know + to understand.
If you only perform the “to know” part of the equation without doing the “to understand” part, then the equation is not complete. Your education is half-baked.
The Street Strategist has since adopted this philosophy and transformed it into the KW philosophy with some implementing and operational ideas.
The flow-on benefits of KW are tremendous. Given this philosophy, a student or a teacher would immediately recognize any statement or procedure or activity that runs counter to it. Consequently, one will not pursue such countermanding activities or statements.
Whenever you break down your study of law or mathematics into the “knowledge” portion and the “understanding” portion, instantly, you will realize where the weakness in your learning lies. It is some kind of a self-critical analysis.
Without the KW philosophy, you will have no honest self-evaluation of your education. With the KW philosophy, your self-evaluation is truthful.

It works like magic. Before KW, you are confused. After KW, it becomes crystal clear: you will know that you’re confused, and identify exactly where the confusion lies.
In other words, KW works as a dissecting instrument; it will cut through all the morass of confusion and will map out for you exactly where you are confused. Thus, instead of merely in a state of “I don’t know” you will be elevated to a state of “Now, I know why I do not know.” The difference between these two sets of realization is tremendous.

With KW, your attitude towards learning will be changed.
For instance, if somebody asks you. “Do you know what is a certiorari?”
Then your answer would be: “As of the moment, I don’t know what it is. But once I know what it is, I am sure I will understand it better than you do.” That’s the attitude.
Let’s apply this principle to some situations.
Stranger: “Do you know something about bonds?”
SS: “Not yet, but once I know about it, I am sure I can explain it better than anybody can.” The result is the article The Century Bond.
Stranger: “If you find a cellphone, should you return it?”
SS: “I don’t know. Let me find out, then I will even give you more insights into theft.” The result are two articles, Theft and Forced Reward, which came out with very unexpected conclusions regarding the issue of rewards.
Stranger: “Do you know traffic engineering?”
SS: “Not yet, but once I know about it, I can understand the causes of traffic and will propose solutions to the problem.” The result is the five-part article Traffic Wizard.
Stranger: “Do you know the size of A4 bond paper?”
SS: “Not yet, but after knowing it, I will go further by understanding why its dimensions are like that.” The result is the article A4.
Stranger: “When wristwatches are advertised what time do they usually display?”
SS: “I don’t know, but I’ll find out and will even try to understand why they choose that particular time.” The result is the article 10:09:36.
Anyway, what I’m trying to say is that given the attitude that “learning does not stop with knowing but ends in understanding,” we can solve time travel, split quarks, and sort out the certiorari conundrum.
The Street Strategist thinks that his greatest personal experience was with debit and credit. Usually, the problem is that one knows about a certain topic but does not understand it. In his case, it was worse: Both knowledge and understanding were lacking. He did not know what were debit and credit, and worse, he did not understand them.
It took him a decade “to know” and finally “to understand” debit and credit, but it was worth it. The Street Strategist has formulated six codes and three rules that he claims as the world’s most effective and most efficient method to learn debit and credit with perfect accuracy and no room for mistake. This method has already liberated thousands of students, professionals, engineers, lawyers, and doctors from the shackles of the debit/credit confusion.

In the context of the bar exams, since there are only 20 main questions, the examiner has only 20 concepts to dwell on. Therefore, the probative value of each question must be commensurate to the importance of each question within the context of the lifetime career of the candidate. Each of the 20 questions has the potential to create or destroy a man’s life.
Many candidates write in their booklets, “Please let me die a lawyer.” That’s how important the bar is to them. As such, the examiner should also realize such importance. This he can do so by avoiding the Wasted Question (WQ).
What is WQ? Anybody under the influence of the KW philosophy will never ever think of giving a WQ in the bar. Why? Because these questions do not pass the “understanding clause” of the KW philosophy.
Again, this emphasizes the fact that those examiners who have not adopted any integrating philosophy in the construction of the bar questions are the most oppressive and most unpredictable element of the bar exams.
A WQ is a waste in opportunity. An examiner has only twenty chances to test not only the knowledge but also the understanding of the candidate, yet, he wastes one of them by asking a question that does not meet the KW philosophy.
Examples of WQ are:
1991 Bar: “Discuss any five of the following and explain each, using examples: a) Reprisal b) Retorsion c) Declaratory Theory of Recognition Principle d) Recognition of Belligerency e) Continental Shelf f: Exequatur g) Principle of Double Criminality h) Protective Personality i) Innocent Passage j) Jus cogens in International Law”
1996 Bar: “Define Securities.”
1991 Bar: “What is the foundation of the agrarian reform program under the 1987 Constitution? Who are the direct beneficiaries of the program?”
To summarize, under the KW philosophy, each question should test both the knowledge and understanding of the candidate, otherwise it will be a wasted question.

Given only 20 main questions, one of the methods of implementing the KW philosophy is Single Question (SQ).
The SQ implementation is very simple. “You are the examiner and the candidate is before you in person. If you are allowed only a single question regarding the topic of appeals, and given the condition that if he can answer it, he instantly becomes a lawyer, right there and then, what would it be?”
That is the SQ. If there are 20 major topics in civil law, then the examiner should construct an SQ on each of those topics. Since there are 50 questions to be prepared, then the examiner can create two SQ’s per major topic.
If the SQ is implemented for each major topic in the bar coverage, then you can be assured that the quality of the question is excellent, and that the SQ will not be a WQ.

In the foregoing analysis, I was actually establishing the predicate for one ultimate concept in test construction which I’m introducing for the first time. The Street Strategist’s ultimate concept in Kennen und Wissen philosophy is the Discriminant Question (DQ).
First, recall that we have excluded WQ because Wasted Questions are an anathema to the KW philosophy. Second, we have emphasized that all bar problems should be an SQ. Now, we will discuss the DQ.
What is the Discriminant Question (DQ)? In statistics, there is a branch called Discriminant Analysis. It is a statistical method used to place an item that could belong to any of two or more sets of variables in the correct set, with a minimal probability of error.
In other words, if you have a person who could either be “lawyer” (set A) or “non-lawyer” (set B), where would you place him with minimal error in making that decision?
I will adopt this concept of Discriminant Analysis from statistics to the legal profession. Well, at least, you couldn’t fault me for not trying all tricks in the book, including statistics, to justify that the Street Strategist will make a good bar examiner.
The bar is about basic knowledge of the law, not a test of narrow specialization based on exceptions to the exceptions. The bar is also about analysis, not memory work. And the bar should be about selecting a new lawyer from a non-lawyer.
Under the KW philosophy, virtually all objective-type of questions are ruled out. This is the reason it was so easy for me to disagree with the new Supreme Court guidelines; right there and then. I recognized the guidelines as anti-KW.
This is the reason one must adopt his own philosophy so as to instantly recognize situations, and then one can instantly provide his comments on the issue; thinking one one’s feet.

Confusing definition
Going back, what is a DQ? Let’s answer this in a roundabout way because if I told you the answer, you’ll be confused instantly.
Suppose, you have formulated one question. Two candidates answer this same particular question correctly. Note, that I emphasized that their answers are both correct. Based on their answers to your single question, it is possible for you to discriminate whether one candidate is of lawyer quality while the other is not?
In other words, is your question able to discriminate one from the other assuming they both gave the same correct answer?
Right now, you are confused, aren’t you? This is the reason I said I’m going to explain DQ in a roundabout way. And this is also the reason why only a few bar examiners would ever think of a question in terms of being a DQ or not. But don’t worry, once you will understand what is a DQ, then you will realize that all bar questions should be DQ.

DQ illustrated
1984 Bar: “Who are citizens of the Philippines?”
Given this question, two persons, Gauss and Dylan, were able to give the correct answer. The third person, Fourier, failed.
Now focus your attention on the two correct candidates. We will focus on the third person later. Between Gauss and Dylan, both having given the correct answer, which of them is a better candidate for admission into the bar? Who deserves to be a new lawyer?
But then, that’s a crazy question, right? Who would ever think of a question like that? Of course, both of them having given the same correct answer, in fact, in toto, from the Constitution, have the same equal rank and deserve to be admitted to the bar. Under the equal protection clause of the Constitution, both candidates, having given the same correct answer deserve to become new lawyers.
In other words, we should not discriminate Gauss from Dylan. Both of them have the same score.
By the way, discrimination is actually allowed under the Constitution but such discrimination must have a legal basis such as laws applicable only to women or children.
Anyway, going back to the bar problem, we have no criterion for discriminating one from the other because they have give the same correct answer. We cannot discriminate between Gauss and Dylan.
Indeed, why did this concept of discriminating one from the other enter into our minds in the first place? Crazy.
Before, I proceed any further, I would like you to carefully understand the above logic because it is very important in context with what I have to say next. It must be crystal clear in your mind: We cannot discriminate one candidate from the other if they answered the same correct answer. Understood? Perfectly clear? Crystal clear?
In fact, the candidates’ names are not found in their answer booklets, therefore, the only sole basis by the examiner for discriminating between the two candidates are their answers. Same answer, same score, same qualification; both new lawyers.

Now listen very carefully. Actually, Gauss is a law school graduate.
On the other hand, Dylan is actually only a brilliant high school graduate who had studied the Constitution in school and memorized the entire Constitution.
I will throw the question at you once more: Which between Gauss and Dylan is better suited to become a lawyer?
Given this additional information as to their backgrounds, your answer changes, right? The answer is now Gauss.
You are now in favor of Gauss. You are now convinced that Gauss is better suited because he has a law degree while Dylan only has a high-school degree.
But the problem is that based on the answer booklet alone, and based on their perfect replies, you couldn’t have discriminated one from the other.
In other words, there was a failure in the selection or discrimination of the candidates. Where is the fault?
The fault, my dear Brutus, is not in the candidates but in the examiners. The examiner did not construct a question that could discriminate one from the other. The question is not a Discriminant Question. If a question is not discriminant, it provides zero insight into the quality of the candidate.

DQ defined
Therefore, a DQ is one that when answered correctly by a candidate, the bar examiner will be able to discriminate him, conclusively, from other ordinary mortals, and that the candidate is qualified to practice the profession, but not the business, of law.
Thus, with the advent of the DQ, we again eliminate almost entirely any possibility of enumeration or definition questions.
Given the same concept of testing the candidate’s knowledge how should the question be reconstructed? Here a thought:
Reconstructed: “In 2005, war broke out between China and the Philippines over the Yamashita gold. China occupied Philippines and overpowered the latter’s weak military defenses. But the USA came to the rescue and soon evicted China out of the Philippines. After the war, Harry, a Filipino citizen, was accused of aiding and abetting China, an enemy during the war. He was accused of treason, as well. In his defense, Harry claimed that during the war, he renounced his Filipino citizenship and became a citizen of China, therefore he could not be accused of aiding and abetting the enemy, or for treason, because he was not a Filipino citizen when he committed said acts. Decide.”
Now, this problem is a DQ. No high school student could answer that. The candidate will probably use the doctrines in Laurel vs. Misa and People vs Manayo in his answer.
By the way, remember the third person, Fourier? The reason he failed is that when asked who are citizens of the Philippines, he wrote: “There are 80 million citizens of the Philippines, and I cannot possibly name them all. This question is preposterous.”

In this series, we started out with several scattered ideas on the different aspects in the conduct of the bar examinations. Not being an expert, the Street Strategist infused certain insights, that definitely cannot be classified as in-breeding. These ideas are integrated under one philosophy. This philosophy automatically rules out certain types of question formats and automatically induces certain approaches to test construction.
Among the operational implementation of KW are the WQ, SQ, and DQ implementations.
By adopting the KW philosophy, we eliminated many undesirable and ambiguous test constructions and their tyrannical effects.
At the same time we reinforced and accentuated the analytical aspect of the bar examinations by emphasizing that any question must meet both the “knowledge clause” and the “understanding clause” of the KW philosophy. To learn is to know and to understand.
Did the Street Strategist invent something new? Not exactly. What I did was to summarize all the problems. Then I attempted to eliminate them. Then I summarized all the positives and reinforced them by adopting KW and DQ. I did not change things. I changed the way we think about these things. We subjugated and integrated them under one concept, doctrine and strategy. I changed the perspective.
You may say, it’s all the same and that I said nothing new. Yet, it is no longer the same. By integrating them, we have achieved a sense of direction, vision, mission, and strategy. Our ideas are clearer because we have an integrated conceptual approach.
In the process, not only did we attack the bar examinations but all other examinations as well, inside and outside the classroom. We saw the importance of analysis over memory work.
In real practice, you can open books for the enumerations but you cannot fake your talent for analysis. Remember that dog and tower problem? That’s an example of an open-book, open-time problem. I received more than a hundred solutions from engineers, professors, and executives. Yet, out of the many responses, only one of them had the correct insight. It’s not as simple as it seems.
Going back, we changed our perspective with respect to the bar. The Street Strategist did this by seeing what everybody else and thinking what nobody else has thought. He did not allow his lack of expertise on the subject matter to dissuade him from formulating his own ideas – whether right or wrong.
We all have the ideas but in separate, isolated, vessels. By providing my own insights into the bar exams, I hope that the overall wisdom with respect to the bar is increased positively. With my ideas, your ideas, and their ideas, we can integrate them as a better whole than scattered fragments. That’s what I do – generalization and integration. I can integrate the parts and make them whole.
Only this time, in sum, the whole is greater than the sum of its parts because of the Street Strategist’s generalization and integration. And this ability to integrate is the wisdom and the justification of the portrait of Street Strategist as bar examiner.
(Thads Bentulan, August 5, 2004)
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