Bar Exam Federalism During The COVID-19 Pandemic

Following up on my previous post, Utah To Let Grads Skip Bar Exam Due To COVID-19, But Only From Schools With 86%+ Bar Pass Rate; Grads Of Just 4 Of California's 21 Law Schools Would Qualify:  

Dan Rodriguez (Northwestern), Utah Emergency Bar Order, and the High Costs Of Our Bar Federalism:

This Utah result flags a larger phenomenon, and that is the rather wide diversity in bar cut scores and the resulting difficulty of reaching any defensible equilibrium on what is a good enough score on which to settle.  If other states are going to go down the path of Utah in requiring a bar passage threshold, they are going to face this same conundrum.  Some of my dean friends in California might, rightly, see this as another illustration of the particular disadvantage their students confront because of California's high cut rate.  Where I would point to is somewhere different, and that is the extremely vexing situation that exists and persists in a world in which all fifty states have their unique rules, rules which at least balkanize legal practice and, at worst, raise the spectre of protectionism.  Something for our state supreme courts to think about, now in this period of crisis and emergency.

Derek Muller (Pepperdine), Some Thoughts About "Bar Exam Federalism":

[W]hile Professor Rodriguez laments that many schools are left out of Utah’s proposal, I see Utah’s proposal as exceedingly generous, increasing the diploma privilege opportunity from two in-state schools to around 65 schools, about 1/3 of all ABA-accredited schools! I suppose it all depends on one’s perspective. ...

I don’t think an 86% bar passage rates is a great way of measuring schools with a sufficient quantity of “good” graduates such that the Utah state bar feels comfortable admitting them without an exam, but it has its virtues. For instance, every school in the Top 20 of the USNWR rankings makes the cut. Outside the top 20, only a few in, say, the top 45 miss the cut—Emory, UC-Irvine, UC-Davis, and the University of Washington, to name most if not all. And this is also a notable cut line given that both BYU and Utah are in the top 45 of the latest USNWR rankings. Again, crass, but roughly accurate. ...

Professor Rodriguez wonders about a disproportionate impact on California schools. Dean Paul Caron, for instance, emphasizes that just four of California’s 21 ABA-accredited law schools would qualify.

Focusing on USNWR top-45 schools, UC-Davis saw just 12 of its 148 test-takers take a non-California bar in 2019—scattered across 5 jurisdictions, with an out-of-state first-time pass rate of 75% (and not reflective of California’s high cut score, it should be noted). UC-Irvine had just 11 of its 135 test-takers take a non-California bar in 2019—scattered across 7 jurisdictions, with an out-of-state first-time pass rate of 91%. (These are much lower out-of-state figures than either Emory or Washington.)

This is to emphasize an earlier point—the most “elite” or “selective” schools disproportionately place students in out-of-state bar exams. And California’s schools—even California’s very good schools like Davis and Irvine—place very few out of state. (It’s also, I think, a testament to law student choices of California schools as a greater commitment to remaning in in California.) And, I think it’s fair to assume, very very few into Utah.

TaxProf Blog coverage of the July 2020 bar exam:

• The Bar Exam And The COVID-19 Pandemic: The Need For Immediate Action (Mar. 14, 2020)
• NCBE To Decide By May 5 Whether It Will Provide MBE For July Bar Examinations (Mar. 27, 2020)
• New York Postpones July Bar Exam To Fall; Students Demand Emergency Diploma Privilege To Practice Law (Mar. 28, 2020)
• Massachusetts Joins New York In Postponing July Bar Exam (Mar. 30, 2020)
• Connecticut Is Third State To Postpone July Bar Exam (Mar. 31, 2020)
• Hawaii Is Fourth State To Postpone July Bar Exam (Apr. 2, 2020)
• New Jersey Is Fifth State To Postpone July Bar Exam, First To Offer 2020 Law Grads Temporary License To Practice (Apr. 7, 2020)
• July Bar Exam Update: ABA, Arizona, California, Florida, Tennessee, Vermont (Apr. 8, 2020)
• Indiana Allows 2020 Law Grads To Serve As Graduate Legal Interns And Take February 2021 Bar Exam (Apr. 9, 2020)
• Utah To Let Grads Skip Bar Exam Due To COVID-19, But Only From Schools With 86%+ Bar Pass Rate; Grads Of Just 4 Of California's 21 Law Schools Would Qualify (Apr. 11, 2020)
• Licensing Lawyers In A Pandemic: Proving Competence (Apr. 12, 2020)

For complete TaxProf Blog coverage of the coronavirus, see here.