Paul L. Caron
Dean



Tuesday, July 28, 2020

The Pandemic Is Proving The Bar Exam Is Unjust And Unnecessary

Slate:  The Pandemic Is Proving the Bar Exam Is Unjust and Unnecessary, by Pilar Margarite Hernandez Escontrias (J.D. 2020, UC-Irvine; Co-Founder, United For Diploma Privilege):

Twice a year, recent law school graduates nationwide prepare for the bar examination, the biggest test of would-be attorneys’ lives. “Bar prep,” the shorthand for the two months of exhausting 12-hour days of study, costs upward of $3,000 and culminates in thousands of applicants filing into convention and conference centers in major cities for two days.

The spread of COVID-19 has made this traditional arrangement unsafe and, frankly, unethical. Nonetheless, 23 states are still opting for in-person bar exams [this] week, placing applicants at risk for contracting COVID-19 while mandating that applicants sign liability waivers releasing state bars of all legal culpability should the applicant become ill as a result of an in-person exam. The sad reality is that many will need to risk their lives to take an exam that some have called “an unpredictable and unacceptable impediment for accessibility to the legal profession” that does nothing to protect the public.

Recognizing the impossible situation in which many bar applicants find themselves, I co-founded United for Diploma Privilege, a grassroots coalition of recent law graduates, lawyers, law professors, and legislators pushing for attorney licensure reform that would do away with the bar exam, instead granting automatic licensure upon graduation from law school and completion of moral character and fitness applications. This path to licensure is called diploma privilege. What began in California in March quickly spread, and we are now a nationwide movement with advocacy teams in almost 40 states. ...

Original data gathered by our organization and submitted in a report to the Supreme Court of California show that anything less than diploma privilege will result in even greater inequities that our profession will not soon recover from. In our survey of nearly 1,500 bar applicants, 35.5 percent of our respondents said they were experiencing housing insecurity (that number grows to approximately 39.1 percent for Latinx graduates, 40 percent for Black graduates, and 71.4 percent for Alaska Native or American Indian graduates). And 12.4 percent of respondents are experiencing food insecurity (17.4 percent for Latinx graduates, 25.3 percent for Black graduates, and 25.4 percent of Alaska Native or American Indian graduates). These disparities will not ease anytime soon. Even if the exam is delayed or canceled, graduates will simply remain in limbo. ...

None of these workarounds does anything to safeguard professional standards; they exist only to prop up the supremacy of the exam itself. As jurisdictions now consider alternatives to a traditional bar exam, it is time to expose and confront the profession’s racialized past. Inequities past and present should force us to consider what kind of profession we will tolerate and what kind of lawyers we want to be.

Law360:  Pandemic Lays Bare The Inequities Inherent In The Bar Exam, by Naomi Shatz (Partner, Zalkind Duncan & Bernstein, Boston) & Katherine Dullea (J.D. 2020, Northeastern):

The outrage over the life-altering consequences of decisions being made around the bar exam and COVID-19 has highlighted the long-standing inequities built into the bar exam.

The exam itself costs thousands of dollars, and most examinees take prep courses that cost additional thousands of dollars. Large law firms will generally pay these expenses, and living expenses for the months spent studying, for their incoming lawyers. Examinees who are not going to work at large law firms have to foot those bills themselves, often taking out loans — where they qualify — to cover the fees and two months spent not working in order to study.

With this privilege given to well-off students and those who are going to work in BigLaw, lower-income examinees or those who are going to work solo or for the government, legal aid organizations or small firms start their careers at an immediate disadvantage. The division between the haves and the have-nots is only exacerbated by the changes being made to the bar exam due to COVID-19. ...

The current outcry about the bar exam raises important concerns about the risks and burdens we ask examinees to assume to join our profession this year. We should use this moment to think more broadly about legal licensing, and identify a path for the training and licensing of attorneys that does not discriminate on the basis of race, gender, disability or socioeconomic status — a path that produces new attorneys with the necessary information and skills to effectively practice law.

https://taxprof.typepad.com/taxprof_blog/2020/07/the-pandemic-is-proving-the-bar-exam-is-unjust-and-unnecessary.html

Legal Ed News, Legal Education | Permalink

Comments

"With this privilege given to well-off students and those who are going to work in BigLaw, lower-income examinees or those who are going to work solo or for the government, legal aid organizations or small firms start their careers at an immediate disadvantage."

This describes inequity in the legal profession, not in the bar exam. And at its root lies pedigree, pure and simple. We are considered third-class folk, and correspondingly have third-class careers. And that's describing the success stories. As I recall, Northeastern was on the wrong side of 50% FT/LT/license-required employment for at least the first few years of the current ABA Form 509 disclosures, and the gains they've made since then are almost entirely the result of decreasing the number of students, not increasing the number of graduates who managed to enter the legal profession. The legal world cares to onboard about 100 of us per year in some capacity, which is bad enough when they graduate 140 and catastrophic when they graduate 200 or more.

Posted by: Unemployed Northeastern | Jul 28, 2020 9:51:11 AM

QUOTE: The current outcry about the bar exam raises important concerns about the risks and burdens we ask examinees to assume to join our profession this year. We should use this moment to think more broadly about legal licensing, and identify a path for the training and licensing of attorneys that does not discriminate on the basis of race, gender, disability or socioeconomic status — a path that produces new attorneys with the necessary information and skills to effectively practice law.

The author needs to clarify the point of this article. Exactly which races and genders (i.e. sexes) can't manage the exams as well others and render this exam "unjust and unnecessary." The authors views about that would be helpful to know.

It's also be helpful to clarify whether that's because this exam is too hard or because this pandemic is too stressful. The later strikes as particularly odd, given that the typical law school graduate has only a tiny fraction of one percent chance of dying from this virus, should they become infected. If they can't handle that, then how can they handle the practice of law? The lawyer on the other side isn't under any obligation to go easy on them. If they can't hack that, their client loses.

Posted by: Mike Perry | Jul 28, 2020 10:55:19 AM

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