Boshkoff, Douglass G.

English

Indiana University Bloomington Maurer School of Law

Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 1976 Indiana's Rule 13: The Killy-Loo Bird of the Legal World Douglass G. Boshkoff Indiana University School of Law Follow this and additional works at: https://www.repository.law.indiana.edu/facpub  Part of the Legal Education Commons, and the Legal Profession Commons Recommended Citation Boshkoff, Douglass G., "Indiana's Rule 13: The Killy-Loo Bird of the Legal World" (1976). Articles by Maurer Faculty. 2132. https://www.repository.law.indiana.edu/facpub/2132 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact rvaughan@indiana.edu. INDIAINI'S RULE 13'THE KILLY-100BIRD OF THELCGI L WORLDRule 13 is an Indiana development having relativelylittle to do with the improvement of professionalskills. Because it contains little to commend it to otherjurisdictions, there is good reason to believe that itwill not spread beyond the borders of Indiana.Defensive in origin and negative in outlook, Rule 13confuses useful information with essential knowledge.Too much that is important is omitted from the rule.'The de facto specialization of a substantial portionof the organized bar is ignored. Progress in legaleducation is inhibited and there are certain heavyBY DOUGLSSG.DOSIROFFProfessor and former Dean, Indiana UniversitySchool of Law, BloomingtonfNINETEENcosts associated with the rule that will become pain-fully apparent as the years pass.Rule 13 was instituted following substantial criti-cism by the State Board of Law Examiners for a passrate of 75 percent on the July 1973 bar examination.Indiana had traditionally had a high pass rate, oftenaround 90 percent. Students and bar examinerssought an explanation for the drastic change. Bothgroups blamed course selection. This rationale offeredstudents an excuse which did not reflect on theirintellectual skills and gave the bar examiners anexplanation other than the unpopular one that stan-dards had been raised.Rule 13 was formulated without any systematicstudy of student bar examination performance. Inan article published in the Journal of Legal Educa-tion, we have argued that the bar examiners had nojustification for concluding that the failure to takecertain courses had an adverse effect on bar exam-ination performance. Even if this argument is notpersuasive, it must be recognized that Rule 13 equatesprofessional competence with bar examination per-formance. It is likely that many other jurisdictions willlook further in seeking a definition of professionaldistinction.The most disturbing characteristic of Rule 13 isits terrible negativism. One usually thinks of educa-tional reform proposals in a positive sense: there arenew needs to be met. Rule 13 does not have this af-firmative element. It directs us to go back in time, tostop changing. It has attracted widespread supportin Indiana because it prevents progress and controlsthe supposedly radical element in legal education.Prescribing two thirds of the law school curriculum,it has had an adverse effect on student course selec-tion. Many important subject matter areas and prac-tice skills (including a course thought important bythe Clare Committee) are not found in Rule 13. Whatis omitted is just as significant as what is included. Ex-periment and incremental change in legal educationare inhibited. Development of clinical legal educa-tion opportunities becomes much more difficult underthe Indiana rule. Nobody has ever suggested that mostof the prescribed courses are not important. But soare many other courses which Rule 13 excludes.Rule 13 confuses important information with es-sential knowledge. Any fragment of legal knowledgeis absolutely essential to the lawyer who needs to useit. Law schools attempt to meet such situational needsby offering a wide variety of electives. There is rela-tively little we teach which must be mastered by everystudent who wishes to become a competent practi-tioner. I believe that prior to the adoption of Rule 13law schools were doing a good job of conveying tostudents those items of universally essential informa-tion which do not derive importance from specificpractice opportunities. The Rule now directs lawschools to concentrate on information which onegroup of lawyers believes is important.Once the practicing bar grasps the distinction be-tween important and essential information, the philo-sophical weakness of the Indiana rule is revealed. Ipredict a rapid development of practitioner sophis-tication as proposals for mandatory continuing legaleducation proliferate. Minnesota recently adoptedMCLE.We are told, however, that: "The Minnesota rulerequires no specific subjects in which courses mustbe taken. The matter was discussed, but the finalconclusion was that individuals will normally enrollin subjects that have the greatest appeal and valueto them which, in most instances, will also be thoseareas of the law in which most of their practice occurs.There was also recognition of the fact that the vari-eties of practice are so great that it would be virtuallyimpossible to identify a core of essentials that every-one ought to have."These are exactly the same arguments that havebeen advanced by law professors favoring a morecomprehensive elective legal education program. iCOMPCTCNCY(Continued from page 16)He began by asking two questions: why had severalpersons failed the bar examination and written withlittle competency? Why had some of those personsexpressed to him great bitterness at the law schoolsfrom which they had graduated?He found, after analyzing the results of 200 barexamination papers, that many of the examinees hadnot taken courses in the subjects in which they werebeing tested. If they had, the courses were all too oftennon-courses. The result was a kind of charade: coursetitles might be familiar (e.g., evidence, procedure orcontracts), but course content bore small resemblanceto reality.When the court's attention was directed to thisdevelopment by the board and its president, membersof the court began their own exploration into thematter. We discovered that a student, who can ex-press himself rather well on a written examination,may indeed pass the bar examination without takingsome subjects in law school, because cumulativegrading is used in the examination, i.e., failure is notcontingent on passing all sections of the examina-tion.Due to this discovery, it was clear that our courtmight be certifying persons to practice law in Indianaand for the federal judiciary in Indiana, who were not,in fact, prepared to give the effective legal assistanceto which their clients were entitled-whether in civilor criminal matters or cases.ASSURING CITIZENS OF GOOD COUNSELOur breadth of concern covered not only trial andappellate advocacy but reached to every level of thelaw practice. One graduate, when asked why he didTWENTY

Indiana\u27s Rule 13: The Killy-Loo Bird of the Legal World

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Indiana\u27s Rule 13: The Killy-Loo Bird of the Legal World

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