Paul L. Caron
Dean





Tuesday, June 2, 2020

Mississippi Requires Applicants Sitting For In-Person July Bar Exam To Sign Liability Waiver For COVID-19 Exposure

Karen Sloan (Law.com), Taking the Bar Exam in July? Sign This Coronavirus Waiver:

Mississippi Bar LogoThose sitting for the July bar exam in Mississippi have a little extra paperwork to fill out this year: A waiver indemnifying the Mississippi Board of Bar Admissions and the Mississippi Supreme Court from liability should they contract COVID-19 from the two-day exam.

The state’s high court earlier this month adopted a plan put forth by the Board of Bar Admissions to move forward with an in-person test in July, which includes a number of public health measures as well as a requirement that examinees sign liability waivers. Some legal academics are criticizing the use of the waivers, however, saying they highlight precisely why holding in-person bar exams during a pandemic is a bad idea. Examinees have no choice but to sign the waiver since the bar exam is a requirement to practice, they noted.

“Another outrageous bar exam plan,” tweeted Joan Howarth, a professor at the William S. Boyd School of Law at the University of Nevada, Las Vegas, who is among a group of legal academics pushing jurisdictions to find alternative ways to license new attorneys amid the coronavirus outbreak. “Don’t worry, nurses will be there to take temps & handle other issues. Nuts.”

TaxProf Blog coverage of the July 2020 bar exam:

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

https://taxprof.typepad.com/taxprof_blog/2020/06/mississippi-requires-applicants-sitting-for-in-person-july-bar-exam-to-sign-liability-waiver-for-cov.html

Coronavirus, Legal Ed News, Legal Education | Permalink

Comments

It’s nice to know that at least “some legal academics are criticizing the use of the waivers, however, saying they highlight precisely why holding in-person bar exams during a pandemic is a bad idea.”

Of course, if the health risks created by the pandemic are serious enough that students should not be required to sit for a brief in-person bar exam, then it would seem to follow that law students should not be required to return to classrooms this fall - for a much longer period of time and much greater exposure to a deadly and highly contagious virus.

Yes, arguably it’s unfair to require waivers to take a bar exam because “examinees have no choice but to sign the waiver since the bar exam is a requirement to practice.”

But if law schools do decide to expose their students to the coronavirus risk this fall, perhaps they should consider using waivers - since unlike the bar situation, students are free to seek to transfer to other law schools or, apparently in many cases, elect to take law classes on line instead of in a classroom

Although the risks of becoming infected in a classroom cannot be completely avoided - even if students are required to wear masks, are seated far apart, and a 6-foot social separation rule can somehow be maintained without a single exception - that doesn't necessarily mean that no classroom instruction should begin in the fall.

It has been suggested that, since the risk to mostly young and largely healthy university students is very small, they may be willing to assume it for the benefits of in-classroom instruction, and to avoid the kind of on-line instruction they just experienced - largely unfavorably, with some labeling it as going to “ZOOM U.”

If these students are willing to assume the risk, then universities probably can, if they wish, ask the students to sign a release or waiver, similar to the releases they are accustomed to signing when they go skiing, engage in an organized outdoor activity such as rock climbing, or rent an e-scooter.

In all such cases - i.e., skiing, rock climbing, studying in a classroom, scooter riding, etc. - they acknowledge that there are unavoidable risks involved with the activity, which they are nevertheless willing to assume and accept, in exchange for being able to engage in the activity.

Thus, in return for being permitted to participate, the students arguably assume the risk, and agree not to hold the entity (ski slope operator, rock climbing promoter, law school, scooter rental company) legally liable, except in the very rare event of gross negligence.

Student who are at exceptionally high risk because of advanced age or pre-existing medical problems can then be offered the opportunity to participate from home via the Internet.

Posted by: LawProf John Banzhaf | Jun 2, 2020 2:17:47 PM