D. Benjamin Barros (Dean. Toledo), Timing of the Bar Exam: A Billion Dollar Issue in the COVID-19 Crisis and Beyond:
Six weeks ago, the timing of the bar exam was an important, but still somewhat abstract, issue. Now, every jurisdiction in the United States is being forced to consider this issue in the context of the largest public health crisis of our lifetimes. The short-term issues being considered now are different from the long-term issues that I addressed in the original version of the op-ed. The core point, however, remains the same. Jurisdictions should consider the massive opportunity costs imposed on candidates by a delay in the bar exam. ...
New York and Massachusetts have announced that they will not hold bar exams in July. Both contemplate holding the exam later in the fall. These decisions are understandable from a public health perspective. Even a delay of a few months, however, will be devastating for test takers. If every jurisdiction merely delayed the bar exam by three months, bar candidates nationwide would lose hundreds of millions of dollars in lost income. Taking these opportunity costs seriously should lead jurisdictions to take a very hard look at alternatives that make them uncomfortable. The COVID-19 crisis has put us in a position where every alternative has major downsides. We need to look for the least-bad alternative.
A group of legal academics and other experts has put together a thoughtful list of options [The Bar Exam And The COVID-19 Pandemic: The Need For Immediate Action]. None are perfect. From an opportunity cost perspective, postponement, standing alone, is unacceptable. Other alternatives fall into two broad categories.
The first is to find a way for recent graduates to be employed and to practice, at least temporarily, without having taken the bar exam, by giving graduates some kind of diploma privilege or allowing them to practice under supervision of a licensed attorney.
The second is to give the July bar exam online, using remote proctoring technology. This alternative would be challenging. Remote proctoring technology has developed further than most people realize, though it may not yet in the state we would want it in an ideal world. The Law School Admissions Council is developing a remote version of the LSAT that will be available this Spring, and is surely moving faster in this direction than they would have if not for the COVID-19 crisis. Even if the remote proctoring technology is at an acceptable level, it would take a tremendous effort to develop the systems needed to offer the bar in an on-line format.
LSAC is able to move to a remote-proctored LSAT in part because they have been offering the LSAT in a digital format since last year. Offering an exam in a new format also raises important test validity issues. Despite all of these concerns and hurdles, remote proctoring might be our best option, if not for July then for a slightly postponed exam offered in the Fall. It is not obvious that public health concerns will be materially different in September or October than they will be in July. None of our options are perfect right now. The COVID-19 crisis has forced all of us to very quickly adjust to using new and unfamiliar technology. The bar exam may prove to be one more context where that is so.
Jurisdictions are facing an incredibly difficult challenge in deciding what to do about the bar exam during the COVID-19 crisis. As jurisdictions make the hard choice between imperfect options, I encourage them to consider the very real costs of those decisions. We are in both a public health crisis and an economic crisis. Under the circumstances, jurisdictions should do all they can to avoid imposing hundreds of millions of dollars in lost income on recent law school graduates.
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