The tension in measuring law school quality and graduating first generation law students

We (I’ll use pronoun here capaciously) know how most law school rankings are generated or how most assessments of law school quality (at least, as measured by law students) are developed. We look to the incoming metrics, the quality of the LSAT scores and undergraduate GPAs among incoming students. We look at attrition rates, including how many are academically dismissed or otherwise withdraw. We look at bar exam passage rates. We look at student debt loads, including those who graduate without debt. We assess “gold standards” in employment outcomes, specifically those who land positions in high-quality positions like full-time, long-term, bar passage-required positions; or those in “elite” outcomes like federal judicial clerkships or large law firm associates.

And while we might pick at elements of these rankings, we might look for “better” ways to measure quality. I think employment outcomes are a great standard. I also like to examine law school student debt loads.

But over the years, I keep wondering whether these “better” ways are, really, better. Prompted from a recent story about the USNWR “best colleges” ranking, I thought I’d muse about why.

Imagine two prospective students, Student A and Student B. Both have poor “predictors” of law school performance (below median LSAC index score, say). Student A is the child of a successful attorney in a mid-sized practice; or perhaps the parent founded and runs a small firm. Student B is a first-generation law student, perhaps a first-generation college student.

Both students will pay the sticker price for law school tuition and cost of attendance. They don’t earn “merit” scholarships. At many law schools, that can easily exceed $100,000, and often tops $200,000 or even nowadays $300,000.

Student A has the wealthy attorney-parent pay the bill; Student B secures, say, $150,000 in federal loans (if the school lacks much in the way of need-based aid, or if the student is just well-off enough to miss the cutoff).

Both students achieve what their predictors did predict: rather marginal law school performance. Job-hunting is tough for students with a bottom-quartile law school grade point average. After graduation, however, Student A gets a job at the parent’s law firm. Student B is left unemployed and searching, or perhaps in a marginally-attached job.

By a pair of the metrics I admire most—low debt loads and high-quality employment outcomes—Student A looks much better than Student B. But, isn’t it simply the path of least resistance to admit Student A over Student B and preserve legacy status? Or, if a school does well on these metrics, how often is it simply because of the cohort of students more closely resembles A over B?

It’s very expensive to a law school to help Student B succeed, both in reducing debt and in ensuring employment placement (or maybe as a prerequisite ensuring academic success).

I don’t have great answers at this point, except to say that I’m puzzling over the next level of data. I think law schools rightly ought to move away from focusing on inputs to focusing on outputs. (USNWR law rankings, not so much.) At the same time, I confess that moving to such measures offers their own limitations—at least, to the extent we think that we want to reward, say, schools for upward social mobility, or schools actually adding value to students as opposed to conferring status. I hope to think more about this in the years ahead.

What we don't know about the July 2020 bar exam and Covid-19: a lot

My post last week offering the tentative conclusion that it appears no one contracted the coronavirus during the July 2020 administration of the bar exam languished in obscurity for most of the week until something spurred attention to it, offering voluminous feedback, in some ways the usual assortment of decidedly-helpful to decidedly-unhelpful responses.

There were a couple of tranches of responses I wanted to highlight. The first were a few people encouraged by the results, in particular thinking about how test-takers and bar exam administrators adopted some useful practices ahead of the exam. Test-takers were unusually cautious in self-isolation before the exam to avoid getting turned away from the exam; basic standards like mask or physical distancing requirements go a long way for a relatively short period of time in a room; test-takers traveled by driving in lieu of mass transit to avoid illness. In short, maybe these results shouldn’t be much of a surprise. (They would have been a surprise to me in March, when my robust “might” was all I could muster for an in-person exam!)

The second—and there were much more of these—were those critical of my conclusions. I want to focus on two of the more helpful points to highlight the weaknesses of my post.

The first bucket are questions about whether I asked the right question. As I wrote:

I reached out to several bar licensing authorities to see, as I put it, “whether any person contracted Covid-19 as a result of the administration of the July 2020 bar examination, or if any person contracted it as a result of their traveling to or from or lodging around the time of taking the bar exam.” (Should I have asked a different question? Well, I tried….)

Lots of people suggested I asked the wrong question. For instance, “as a result of” put too much of a causal emphasis, which bar licensing authorities would not necessarily be able to answer—or that made it easier to answer “no.” A positive test shared after the fact could still be reported as one not “as a result of” the exam. Fair critique! My goal was a narrow and specific concern about what we know. But my inquiry could of course have been broader. Additionally, as I noted, “some jurisdictions did emphasize they asked test-takers to disclose if they contracted the coronavirus within 14 days after the exam, and none did so. (That would sweep more broadly than contracting it during the bar exam, of course.)” For a follow-up inquiry (or, if you’re thinking about you, your next inquiry!), I might ask something more broadly, without the causal aspect.

Second, and relatedly about the scope of the question, was whether jurisdictions had contact-tracing protocols in place. Again, some did volunteer the post-exam 14-day reporting period, which, again, suggested to me some contact-tracing protocols in place. But, would it have been more useful to ask—before, during, after the exam—for bar licensing authorities to specify what, if any, contact-tracing protocol they had? Or what their negotiations with the local health officials looked like to do so? Absolutely.

Much of my encouragement came from Colorado's process, because (1) it appears people in the room were all made aware (although I cannot tell how much was word of mouth as opposed to formal notification), and (2) Colorado bar authorities apparently knew the negative results of the test-takers in the room who later took a test as a matter of peace of mind. (That was despite the fact that Colorado's local health authorities said that testing of everyone in the room wouldn't be required because of existing social distancing protocol.)

In short, are there more helpful questions? Absolutely. Is there more evidence we could gather? Definitely. Should we (err, should someone) do so? Totally.

We don’t know the results in a lot of jurisdictions. We don’t know who opted out of the exams. We don’t know how online administrations or administrations split across months look. We don’t know the psychological effect it had on test-takers and how it compares to previous administrations of the exam. We don’t know a lot. Indeed, I only got to seven jurisdictions in my original post! There are a lot of important questions still to ask. (Some I’m working on in the months ahead!)

So… do it! Ask good questions (or, questions better than mine!); engage in good faith with bar licensing authorities and public health officials; determine what we can do going forward!

The most helpful piece, I think, is from Professor Paul Horwitz over at PrawfsBlawg, with this bit I’d like to emphasize:

Voicing ex ante concerns about risks is perfectly understandable. One can hardly wait until after the event to express worries about future risks. And the outcome doesn't mean the concerns about risk were unwarranted. But it seems to me that, at least for those whose arguments were based on academic expertise, or invoked that expertise and appealed to past and ongoing empirical study of the issue, or otherwise invoked a kind of academic or data-driven or scientistic authority in making various arguments, there is an arguable duty to follow up and see what the data ultimately revealed about the accuracy of those warnings.

Claims about the future are often too easy to make. I really like to go back and see how often those (often dire) predictions come true. Sometimes these questions are hard to figure out. This question in particular seems very hard to figure out—hence, a post that opens with “appears,” turns exclusively on the causal questions, and includes a lot of caveats (go back and read all of them!). And, of course, even if true, it doesn’t answer the much bigger questions about the right approach in each jurisdiction (see, e.g., the caveats). It only helps us move marginally forward on one piece of a very complicated puzzle.

A survey of the broad scope of the proposed New York diploma privilege law

A10846 is a diploma privilege bill working its way through the New York legislature. After unsuccessful postponements and questions about how an online version would work, there’s been renewed urgency to help license attorneys in one of the largest and most significant legal jurisdictions in the United States.

I’m sympathetic to some calls for diploma privilege in some jurisdictions in the current environment—but I do think some tailoring is appropriate, as I’ve written. While Washington’s diploma privilege struck me as potentially overbroad, the current text of A10846 far exceeds it, and it’s worth looking at its scope—and what might be amended out of the bill later.

New York does not have a particularly difficult bar exam. And one could look at its July 2019 statistics as a window into what rules for a temporary diploma privilege might look like. Among first-time test-takers from ABA-accredited schools, 86% passed—4748 out of 5517 test-takers. That’s a high pass rate. Of course, it means 769 didn’t pass, and a diploma privilege for all first-time test-takers from ABA-accredited schools would sweep them in, too. As emphasized in my previous writing, however, maybe that’s a tradeoff New York is willing to make, and maybe one could have more robust follow-up of this cohort to try to minimize misconduct or malpractice.

If one took a broader view, more like Washington, to all test-takers, first-timers or not from ABA-accredited schools, it would bring in another 990 test-takers from the July 2019 bar exam. Only 28% (272) of those repeaters passed, so it would add 718 graduates who failed the bar exam multiple times. Again, maybe a tradeoff worth taking in the larger picture.

New York’s bill goes further still. It would extend to “any person who has graduated or will graduate from an American Bar Association accredited law school or who would otherwise be eligible to take the New York state bar examination.” (Emphasis added.) That last clause is significant because New York has a significant cohort of foreign-educated attorneys that take its bar exam each year.

In the July 2019 exam alone, for instance, 2398 foreign-educated test-takers took the bar exam for the first time, but just 1266 passed, a 53% pass rate. Another 1161 repeated the bar exam, and 250 passed, a 22% pass rate. That means over 2000 foreign-educated test-takers failed the July 2019 bar exam. All would be admitted under this rule.

I’ve pointed out in the past how non-JD legal education is on the dramatic rise in American law schools, and how foreign-educated LLM degrees are on the rise. But bar passage rates remain low, likely in part due to language barriers. These test-takers remain a significant cohort of overall test-takers.

Unlike other states that have had temporary “emergency” diploma privilege rules, New York’s is not limited to those who previously registered for the July 2020 bar exam. It extends to all prospective attorneys, through September 30, 2021 (or until the end of the Covid-19 disaster, whichever is later), who satisfy the other requirements, like character and fitness requirements.

That could potentially sweep in many more attorneys who’d otherwise be eligible but have failed the bar exam in the past—they might be in New York (the law is limited to those “who intend[] to primarily practice in the state of New York”) and practice. If they complete “100 hours under the supervision of a permanently admitted attorney,” they would be eligible for permanent admission to the bar. (One hundred hours is two and a half 40-hour weeks.) That’s much lower than, say, Utah’s 350-hour supervised practice requirement.

In short, if enacted as written, it’s possible to see thousands of new attorneys in New York—perhaps much more than the equivalent of the 3500 who failed the July 2019 bar exam if one looks at the scope of the rule that might extend to other would-be attorneys who could otherwise meet the rule in the next year.

It’ll be worth seeing if New York enacts the law as written or amends it. Maybe it won’t be enacted at all. But if it is, it’ll be an even more significant experiment in attorney licensing than Washington’s rule, and emphatically one to watch.

Diploma privilege 2.0

While there’s a renewed effort afoot for diploma privilege (either on a one-time emergency basis or on a long-term basis) in lieu of the traditional written bar exam, it’s worth considering that this new version of “diploma privilege” looks nothing like the traditional “diploma privilege” of places like Wisconsin, or as recently abolished in states like Montana. For lack of creativity, I’ll call the new movement “diploma privilege 2.0.”

The bar exam predates law school, tracing back in the United States to 1763. But recent historical “diploma privilege,” or admission to the bar upon securing a diploma from a recognized law school (with other conditions, of course, like passing the character and fitness examination) had a couple of hallmarks. First, it was expressly designated to benefit in-state schools. And second, it was designed around a model of education in which the juris doctor diploma was granted on the condition of learning a certain body of in-state law.

It’s worth going back to recent history abolishing diploma privilege (err, “diploma privilege 1.0”) in some jurisdictions. Consider this justification in Montana in 1980: In the Matter of Proposed Amendments Concerning the Bar Examination and Admission to Practice of Law in the State of Montana, 187 Mont. 159 (1980).

There is no substantial or acceptable argument for retention of the diploma privilege. Its primary purpose has long since ceased to exist i. e., incentive to attract students to a small law school as it struggles to gain recognition in the legal community or the common argument that the last quarter of law school must be devoted to preparing the student for the bar examination which is a detriment to their normal course of study.

There is, in fact, a double standard created by the diploma privilege and the Bar examination as it relates to admission to the Bar in Montana. This standard goes beyond the courses offered in the law school and given on the Bar examination. It is the fact that the diploma privileged person enters the job market in June, whereas a Montana resident forced to attend an out-of-state law school must wait until October to take the examination, and in some cases does not pass fairly enough, many people have elected to attend schools outside the State of Montana. It is also noteworthy that the University of Montana School of Law is no longer struggling. It is turning away many, many students who are Montana residents and who would like to remain here to go to school. Also, we should be encouraging our young people to go to other schools outside the State of Montana for the diversity of educational background and the intellectual exposure which is essential in a free society. There is no doubt that the University of Montana School of Law is very good, but concentrating Montana graduates into the Montana Bar becomes dangerously parochial.

The effect of a diploma privilege on the student and on the faculty of a law school that extends the privilege is subtle but sometimes harmful. There exists the possibility of abuse and the standards of the law school may be affected by the fact that nobody really does his best until he has to. Knowing that their students are not to be examined, some professors may be prone not to put forth their best efforts, or at least a better effort than they did the previous year teaching the same course. Under some circumstance, the curriculum can be adjusted to teach the students what they want the students to know, and there is nothing in the world to prevent this.

E. Marshall Thomas, the former chairman of the National Conference of Bar Examiners, makes the point that even though all subjects were the same on the school curriculum and on the bar examination, it would still not be an idle act to require that they take the examination since it serves a real additional purpose. The fact that the law student knows he must face the Bar examination after graduation and before admission to practice is a healthy, educational stimulant. Mr. Thomas further contends that it is also a stimulant to the law school faculty to maintain high standards of legal education because the faculty knows that their students will be examined by state authorities. He says that the Bar examination serves an additional function in that the Bar examination has one essential difference from the law school examination it is a comprehensive examination covering the entire field of several years of law study.

Further, the American Bar Association has taken a positive, clear and very hard stand against the diploma privilege in connection with the standards of legal education and A.B.A. approval of law schools. Further, there are very few jurisdictions left which permit this kind of privilege. The A.B.A. Section of Legal Education and Admission to the Bar is very strong in its opinion that graduation from a law school should not confer the right of admission to the Bar and that every candidate should be subject to an examination by a public authority to determine his/her fitness.

The University of Montana School of Law has stressed that the Supreme Court members, or rather two of them, are on the Board of Visitors and can oversee and control the curriculum of the school. The A.B.A. says that this is not right, that there is no public officer or officers or departments who control the curriculum of any school. Their job is to see that the school turns out properly educated people who can adequately serve the public. Any attempt to control curriculum content would be an unfortunate limitation on the educational freedom of the school and could not be tolerated in the name of the diploma privilege.

It follows then that to reach our ultimate goals, the diploma privilege must be eliminated. However, at that time, those students who have applied and will be accepted or are accepted or are in the law school when these changes are made, will be given the benefit of all privileges held out to them, i. e., a grandfather-type concession will be afforded to those with any remote contractual right to be a beneficiary of the diploma privilege, as set forth above.

This Court orders the diploma privilege abolished in conjunction with the other changes to be made in our qualifications and admission to practice.

One can judge whether the reasons for or against the privilege are persuasive (it reflects, for instance, a distrust of law schools that I’ve highlighted elsewhere). But I wanted to highlight a few of the points: in Montana, for instance, the privilege was overtly designed to advantage the in-state school over out-of-state schools, and it ended up advantaging in-state enrollees in the job market, too. Another is that the Montana Supreme Court viewed it as inappropriate to try to control the specific curriculum of the law school to ensure that there would be the advantage of diploma privilege of in-state law school graduates.

Wisconsin adheres to this old tradition, if somewhat inconsistently—state bar controlling the curriculum (to a degree), an advantage for in-state graduates, a focus on state-specific law.

This in-state v. out-of-state makes sense in an old regime of thinking about law, in times with less interstate litigation and greater common law variation. Today, however, we have increased mobility, increased uniformity, increased specialization, and such a wide body of law that we expect attorneys to look it up rather than assume they’ve memorized it all—or, more to the point, memorized it all before practicing. Having a generalized knowledge of a single state’s law feels less typical than it might have been decades ago.

Recent developments in written bar exam have moved this way. The Uniform Bar Exam, put forth by the National Conference of Bar Examiners, has sought to make bar exam scores more easily transferred across jurisdictions. It’s much easier to become licensed in multiple states with the UBE. But the UBE, of course, is an emphasis on uniform. It’s hardly ensuring that recently graduates have a (memorized!) body of state-specific knowledge for a given jurisdiction, as the old bar exams might have emphasized. (But it still requires memorization and understanding of law, even if, for some areas, it’s a bit of a fictitious amalgam of common law!)

Indeed, a recent New York task force called for returning to more state-specific knowledge, pushing back against the NCBE’s UBE move. For the reasons I note above, I’m skeptical about this proposal—particularly as the report relies heavily on “anecdotal” evidence that new attorneys don’t know enough New York law to practice in the state. (It would be interesting to try to measure new lawyers’ abilities to handle certain tasks within months of being licensed and whether any disparities in ability exist; and whether those disparities, if they exist, disappear in a relatively short period of time. But, as far as I know, no one is trying to study or measure that.)

The recent push for “emergency diploma privilege” has led to Utah, Oregon, Washington, and Louisiana to offer forms of diploma privilege, but in ways that did not exclusively advantage in-state graduates. Utah and Oregon privileged both in-state graduates and a good chunk of out-of-state graduates; Washington and Louisiana privileged essentially all ABA-accredited graduates. And they did not condition admission to the bar on learning a body of state-specific knowledge—but there are conditions, like, say, in Utah, where admissions is also conditioned on a stretch of supervised practice, which may include some of the state-specific learning one may desire.

(Indeed—and this is an open question!—is this the first time in history that a state offered diploma privilege to out-of-state law graduates? I’m not sure. But I’d be interested to find out if there’s a law school historian out there!)

UPDATE: There’s plenty of interesting history out there! Oregon once had a kind of “reciprocal” diploma privilege, offering it to graduates of any school whose home state would offer them diploma privilege. Texas had an exemption that included out-of-state schools. So, there are other historical examples—just none in recent years.

Earlier, I tried to disaggregate the emergency diploma privilege and the longer-term diploma privilege proposals. I highlighted a point I raised a year ago, that bar exams are, I think, in part about distrust that state bar licensing authorities have with law schools—that is, that state bar licensing authorities think law schools do not have the admissions, retention, and graduation standards that would allow all JDs to become licensed attorneys. It could be other reasons, of course—one may think, like the New York task force, and contrary to my views, that learning some state-specific body of law is important, etc.

In that older post, I suggested some smaller states could learn to trust their in-state law schools again if they worked closely with one another—and not to control the curriculum with state-specific knowledge, but to ensure that all the graduates were capable of practicing law. But I think I would want to reflect on such a proposal to be broader—and that’s hard to do. That is, it shouldn’t just be a privilege for the one or two or three in-state schools that the state bar licensing authority trusts. It should be open to a broader set of schools. But how?

Proponents of this new diploma privilege put their cut-off at ABA accreditation, but I think that’s not sufficiently narrow—that is, sadly, the ABA accreditation process is not designed to ensure schools graduate cohorts competent to practice law, a reason its accreditation rules are tied to, say, a 75% ultimate bar passage rate (not 100%!), or recognition that many graduates never practice law. And it’s beholden to other interests, like the DOJ. ABA accredited schools face probation or, in recent years, closure for failing to maintain standards.

In short, there has to be a way for state bar licensing authorities to determine whether in-state and out-of-state law schools both have the admission, retention, and graduation standards that would entitle them to diploma privilege. That’s a much trickier concept to sort out. But I think it’s the better approach. Rather than favoring in-state schools with conditions of learning state-specific bodies of knowledge, a more generous “diploma privilege 2.0” would look at all schools nationwide without such conditions. But filtering out which is a sticking point for this too-long blog post! Utah and Oregon set the cut-off at schools with an 86% first-time bar passage rate in 2019. That won’t work if the bar goes away as a reference point. Maybe it’ll take a new licensing authority, something other than the ABA, to offer diploma privilege-certified schools. But that also feels like a lot of effort. In short, I don’t have great ideas—just identifying that it’s a different system than the old one and one that, I think, requires some different thinking.

Cautious but eager to return to a hybrid law school classroom in the Fall 2020 term

There’s tremendous variance in risk tolerance in the United States right now, and higher education is no exception. Some press for online/distance/remote education for the Fall 2020 term and maybe beyond, perhaps indefinitely until there is an adequately-effective vaccine for coronavirus made widely available. Others push to reopen and return to as much a sense of “normal” as is feasible, the sooner the better.

I won’t rehash all the debates or the points, except that I find myself in the middle of it all. I’m cautious about all the reopening plans, but I have to say that I’m also eager to return.

I’ve had my toe in three different universities in the last several months. Each had different approaches, but each spent agonizingly long periods of time consulting with, among others, faculty in determining reopening plans. (It also distinctly highlights the privilege of faculty positions, where months away from campus and much consultation are conditions for return, instead of, day, grocery store employees or delivery drivers, who essentially showed up to work throughout the pandemic without such luxuries.) All reached different solutions. Not everyone agrees, of course (and one need only browse Twitter or read media reports), about the solutions. But I’ve found institutions to be as accommodating as possible while considering a wide variety of needs—students, staff, faculty, and the public, among others.

The opportunity to return to the classroom this fall is a new challenge but one I’m embracing. I thought I’d briefly sketch my “hybrid” approach and its planned implementation this fall.

(By the way, I cannot offer enough praise for Professor Jessica Erickson’s tireless and comprehensive look at remote and physically distanced teaching over at PrawfsBlawg. It is essential reading!)

My law school has a “hybrid” approach where it will be one week in the building in person, one week online. First-year students will be in the building for odd weeks, and upper division students will be in the building for even weeks. They’ll alternate for online courses the other weeks. (Some courses are exclusively online to accommodate some students and faculty, too.) It allows for greater physical distancing and more effective use of classroom space, while allowing some of the in-person familiarity and camaraderie that online-only models lack.

It’s caused me rethink how the class looks—not just to think about speaking through a mask to other masked students (but, I’m grateful to see their entire faces online every other week!), but how to develop a rhythm of the semester making the most of both types of learning.

I’m teaching Election Law with a capped enrollment of 20 students. (That cap was quickly reached when it was announced my class would be partially in-person—the student demand for in-person course offerings is high!) I’ve decided to turn the semester into six two-week units (feasible as I develop my own course materials).

The first week will be an online introduction with readings and discussion.

The next two-week “unit” will be a topic, say, redistricting, or race and federal power over voting rights, or something like that. The first week of that unit is the in-class portion, with cases and background readings and discussion. I’ve found that this is the toughest part online—it’s hard to have a conversation, back-and-forth, etc. without being in a room together.

The second week is online. Some of the readings will be built around more contemporary topics (including 2020 topics), which, I think, will be easier to engage online and more naturally build upon what we’ve already done in-person (with better rapport). The last day of that week will be a practice problem or set of problems applying what we’ve learned, with breakout groups to test out a new hypothetical and its application. I’m sketching out a legislative drafting exercise, a litigation strategy session, a practice recount, a political ad vetting exercise—in short, some opportunities to get into smaller groups with more interaction, breaking up the monotony of online experiences, and providing some engaging, contemporary material.

I confess, this is exhausting work to develop and really limiting opportunities for other work this summer. But I am eager to see if it’ll provide better learning opportunities for everyone. It might be, of course, that this plan is blown apart by a surge in coronavirus cases—in which case, well, some of the in-person discussions would revert to online, suboptimal but perhaps necessary. And when we can return to “normal,” maybe some more of these exercises will become a routine part of my classroom experience. But it’s a reason I’m eager to return to the classroom—cautious, yes, and aware of risks, but looking forward to a new term and new opportunities to engage.

Disaggregating the debate over the bar exam and diploma privilege

Longtime readers of this blog know my frustration over conflating arguments in the debate over the bar exam. And it’s happening right now in a very public (and heated) way about diploma privilege. In my view, there are two very different arguments about diploma privilege that are too quickly conflated. (Reader, beware: much hedging and musing ahead….)

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The first is a specific concern related to the coronavirus pandemic and administration of the summer/fall 2020 bar exam. That is, given the complications of administering a largely-indoor exam over two days to hundreds or even thousands of strangers who have been asked to travel and congregate together, perhaps alternatives should be considered. Diploma privilege is one such consideration. There are many alternatives, but it’s worth considering cohorts of test-takers—for instance, the privilege might not extend to out-of-state graduates, graduates of foreign law schools, of state-accredited law schools, of practicing attorneys in other states, or those who’ve previously failed the exam. Nevada, for instance, looking at alternatives, will put an online twist on an old practice-oriented format. I’m still skeptical of how online administrations will work (or, really, just about any alternative system!), but several states are moving toward similar formats.

It’s worth noting that many bar licensing authorities simply failed to think adequately, even in small ways, last spring about what might happen this summer. I wrote back in March that postponement seemed like a suboptimal choice because, as I noted, “it’s not clear when this pandemic will end.” And given the relationship between law school grades and the bar exam, I thought a minimally-disruptive alternative like substituting law school work product for the bar exam might be a good option. (For what it’s worth, no one’s asked me about this idea….)

A few states have already moved in the direction of diploma privilege. Utah’s strikes me as the most sensible so far of the versions of “diploma privilege,” if somewhat rough justice—it covers the vast majority of first-time test-takers in the state and many from out-of-state schools, even at the expense of some cohorts of would-be test-takers, but that’s what rough justice does here. Utah’s proposal has, I think, received some unfair criticism both as too generous and as too restrictive. Oregon’s strikes me as somewhat more curious in its rough justice but in line with Utah’s. Washington, in contrast, strikes me as potentially overbroad with the admission of a number of prospective test-takers who’ve failed the bar multiple times, but, as I noted, perhaps can be mitigated with oversight in the years to come.

In my view, the more honest assessment is this: “Taking a traditional written bar exam in a pandemic is not feasible. Any new bar exam system—online, or a new kind of test, or whatever it might be—is going to cause some uncertainty and problems. A rule like diploma privilege for first-time test-takers of ABA-accredited law schools might result in some small additional long-term risk of some members of the public receiving representation from attorneys who are not qualified to do so. But the alternatives are too costly—postponement has already failed, for instance. And given that the vast majority of test-takers pass the bar exam [depending on one’s state, of course!], diploma privilege is reasonable measure at this time [for a particular cohort, as so defined]. Let the state bar look at this cohort closely in the years to come to try to avoid any malpractice, attorney discipline, or other concerns that might arise.”

To me, that ought to be persuasive in many (not all!) jurisdictions. It’s honest, it concedes costs, it identifies the trade-off, and it tries to cabin the scope. It could be paired with other things like supervised practice as Utah is doing or as advocated elsewhere. Advocates of emergency diploma privilege tend, in my view, to overstate the historical comparisons, but emphasis on the emergency, I think, can go a long way.

In my view—and, my sense is, I’m an outlier among many—I think licensing authorities are genuinely trying to do the best they can, as divergent as the approaches might be. Yes, some are going to be more ham-handed than others or less empathetic than others. But I’m not so quick to ascribe ill motives or malice to licensing authorities tasked with many competing concerns and high degrees of uncertainty.

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The second is a general concern that diploma privilege is superior to the traditional written bar exam. My own views on the traditional written bar exam are decidedly mixed.

I think the bar exam today reflects a fundamental distrust of law schools (that law schools, either specific schools or a cohort at given schools, admit, retain, and graduate too many students who lack the minimum competence to practice law) and the American Bar Association’s accreditation practices (the belief that they are too loose and fail to enforce admissions, retention, and standards, perhaps in part due to Department of Justice pressure). But I’ve suggested there’s trust in Wisconsin (and just two schools), and there might be opportunities for law schools and state bar licensing authorities to start developing that trust with one another again. On the other hand, the bar exam closely tracks law school performance, and performance on the bar tracks ultimate misconduct rates, which suggests a close consideration of what the alternative mechanisms will look like before switching admissions practices.

Frankly, proposals like Utah’s and Oregon’s suggest traits I’ve looked at before in trust between bar licensing authorities and law schools: in-state trust of two or three schools with already high passage rates (typically well over 80%) on the first attempt, and some trust of highly-performing out-of-state schools. It’s also a very different model than, say, Wisconsin, which has long required a series of state-specific courses as a condition of benefiting from the diploma privilege. Is the object of law school state-specific knowledge? Or general legal competence? Wisconsin’s is more the former, Utah’s and Oregon’s emergency proposals more the latter.

It is also, I think, very different to think of a how-to-handle-an-emergency diploma privilege, and ex-ante-new-bar-licensing-regime diploma privilege. The latter—the long-term change—would, I think, require a years-long phase in so that law schools could ensure they’ve adopted the admissions, retention, and graduation standards that the state bar prefers.

Statements claiming that the bar exam does “nothing,” then, or is “worthless,” or should be “abolished,” are, in my view, really a much deeper, and longer, debate—including what would replace it. I think it would require this “state-specific v. general competence” question to be addressed. It would require schools to reconsider admissions, retention, and graduation standards. It would reduce the role of the ABA and give greater scrutiny to what the ABA deems “compliant”—or at least turn the ABA into heeding state bar licensing authorities more closely. It would reconsider what post-graduation CLE and discipline looks like. It would also reexamine the role of character and fitness examinations (also deeply questioned in the academic literature) and the MPRE.

In short, I’m not a particular fan of “immediate diploma privilege now” because I think the bar exam still serves an important role in constraining law schools in their admissions, retention, and graduation standards. I think the bar exam isn’t necessarily the test I’d design—heavy on rote memorization and offered only twice a year—but I think replacing will take some effort. And any new program, even if instituted today, would likely only begin with the cohort graduating in the Class of 2024, after a year of admissions policies are in place with three years of retention and graduation standards for this cohort.

Now, I don’t say this as a desire to preserve the status quo by kicking the can down the road, postponing indefinitely to “study” issues to reach no resolution, and so on. It’s just to say—and I’m not a part of any of these discussions!—that a lot of thoughtful people have been thinking about a lot of thoughtful alternatives (versions of diploma privilege among them, but supervised practice, “bridge to practice,” etc.) for some time, and maybe state bar licensing authorities will finally get serious about these alternatives after this pandemic.

And it’s a reason I think this big debate is very different from the emergency debate. I think the bar exam has a place. I think it could be replaced. But that all requires a very different and much more structural reorientation of legal education and the state bar licensing regime than the pressing and temporary exigencies of administering a bar exam during a pandemic.

*

One more point. This is a debate over license standards—should a law license be conditioned on passing the bar exam? Graduating from an ABA-accredited school? Hours of supervised practice? One might have a different debate entirely about whether a bar license itself should be required.

Licenses, I think, can serve a public protection purpose. After all, if you may be imprisoned, we may think the average consumer (here, criminal defendant) lacks the ability to engage in the assessment of the quality of a self-described lawyer, at least when compared to the fairly catastrophic outcome of having incompetent representation. On the scale of “licenses for hair braiding” to “licenses for performing open heart surgery,” maybe law is closer to medicine than beauticians.

But we can still think about legal reforms where we don’t require a full J.D.-plus-bar-passage to do some legal services. Washington State has experimented (very modestly) with this for certain family law disputes. Utah and Arizona are moving toward narrowing the definition of “unauthorized practice of law” to allow more limited opportunities to engage in law-related activities. And maybe we’ll get to a point where passing the bar is not required to practice all forms of law, and there can be licensed and unlicensed practice, much like, say accounting.

Conditioning practice of law on passing the bar exam is, maybe in some ways, less onerous than conditioning practice of law on completing three years of education at an ABA-accredited school. In most states, however, you have to do both; in some states, you can complete alternative forms of education.

Maybe this debate will also spill over into our discussions about what the “practice” of law is, and who should or should not be excluded from that. Diploma privilege is (probably) one way of broadening opportunities for the practice of law. Other ways might follow.

Federal Judicial Clerkship Report of Recent Law School Graduates, 2020 Edition

I’ve updated my Federal judicial Report of Recent Law School Graduates, which is now available via SSRN. It tracks recent federal judicial clerkship hiring tends by school and by region, “elite” legal employment placement rates, and trends within the federal judiciary in hiring recent law school graduates. Most data is a three-year average for the Classes of 2017, 2018, and 2019 to smooth out any one-year outliers. Here’s one chart, judicial clerkship placement rate of recent graduates for these three classes: 31 schools had at least 5% placed into federal judicial clerkships.

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For more charts, figures, and analysis, check out the entire report.

Visualizing legal employment outcomes in California in 2019

This is the eighth and last in a series of visualizations on legal employment outcomes for the Class of 2019. Following posts on outcomes in Pennsylvania, Ohio, Texas, Illinois, Florida, DC-Virginia-Maryland, and New York, here is a visualization for legal employment outcomes of graduates of California law schools for the Class of 2019. (More about the methodology is available at the Pennsylvania post.) Last year's California post is here.

Please note, of course, that “J.D.-advantage” jobs may differ significantly from school to school, which may alter how one views the “overall” rate. (USNWR treats them as equivalent, but there are good reasons to think they may not be equivalent; and here, there are significant disparities among some schools and their J.D.-advantage placement.) And recall that I sort the table below to include school-funded positions, while the chart only includes unfunded positions. (It’s a reason I try to display the information in different ways!)

In some ways, California’s gains have come as three law schools have closed or been removed from ABA-accredited status. The removal of two schools from last year alone would have bumped the overall employment rate up in 2018 from 74.9% to 77.3%. But overall, bar passage-required jobs increased by about 100 among California’s 18 law schools reported below. J.D.-advantage jobs increased slightly, unlike most other regions of the country, and law school-funded positions fell overall. Total employment stood at 79.4%, another improvement.

I think this will be my last year doing these visualizations. They are a fair amount of work. And this year in particular there has been essentially no interest in the employment outcomes of these regions. If that’s the case, I’ll move on to other areas for blogging.

As always, please notify me of any corrections or errata.

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Peer Score	School	2019	YoY%	BPR	JDA	LSF	Grads	2018	BPR	JDA	LSF	Grads
4.5	University of California-Berkeley	97.0%	1.2	296	6	16	328	95.8%	276	4	16	309
4.1	University of California-Los Angeles	95.6%	3.1	279	11	13	317	92.5%	257	19	20	320
4.8	Stanford University	95.1%	-1.8	156	9	8	182	96.9%	165	12	10	193
3.6	University of Southern California	90.6%	3.3	191	11	1	224	87.3%	162	11	6	205
3.4	University of California-Davis	88.3%	1.9	121	7	8	154	86.4%	135	8	10	177
3.5	University of California-Irvine	86.5%	-0.3	110	5	7	141	86.8%	85	3	11	114
2.7	Pepperdine University	83.7%	5.1	135	14	0	178	78.6%	114	18	0	168
2.7	Loyola Law School-Los Angeles	81.6%	-4.1	216	41	5	321	85.7%	213	24	3	280
3.1	University of California-Hastings	79.6%	0.9	209	25	12	309	78.7%	178	28	12	277
1.9	McGeorge School of Law	76.5%	12.6	94	23	0	153	63.9%	66	19	0	133
1.9	Chapman University	74.9%	1.0	92	36	0	171	73.9%	75	24	0	134
2.7	University of San Diego	74.3%	2.0	123	13	0	183	72.3%	172	19	0	264
2.5	Santa Clara University	67.8%	-0.9	128	15	0	211	68.7%	127	22	0	217
1.9	Southwestern Law School	64.5%	1.3	92	37	0	200	63.2%	128	39	1	266
1.5	California Western School of Law	61.8%	0.7	95	36	0	212	61.1%	86	32	0	193
1.1	Western State College of Law	57.5%	0.5	41	20	0	106	57.0%	49	8	0	100
1.5	Golden Gate University	50.5%	2.3	37	15	2	107	48.2%	27	11	2	83
1.9	University of San Francisco	49.6%	4.6	47	12	0	119	45.0%	49	26	1	169

Visualizing legal employment outcomes in New York in 2019

This is the seventh in a series of visualizations on legal employment outcomes for the Class of 2019. Following posts on outcomes in Pennsylvania, Ohio, Texas, Illinois, Florida, and DC-Virginia-Maryland, here is a visualization for legal employment outcomes of graduates of New York law schools for the Class of 2019. (More about the methodology is available at the Pennsylvania post.) Last year's New York post is here.

Please note, of course, that “J.D.-advantage” jobs may differ significantly from school to school, which may alter how one views the “overall” rate. (USNWR treats them as equivalent, but there are good reasons to think they may not be equivalent; and here, there are significant disparities among some schools and their J.D.-advantage lacement.) And recall that I sort the table below to include school-funded positions, while the chart only includes unfunded positions. (It’s a reason I try to display the information in different ways!) The Class of 2019 saw continued upward trends. Bar passage-required jobs rose from 2882 to 3027; J.D.-advantage positions fell and school funded positions held steady. And while total graduates increased slightly to 3730, the improvement in bar passage-required positions helped increase placement from 86.1% to 87.6%.

As always, please notify me of any corrections or errata.

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Peer score	School	2019	YoY%	BPR	JDA	LSF	Grads	2018	BPR	JDA	LSF	Grads
4.7	Columbia University	98.6%	2.2	416	3	6	431	96.4%	420	8	5	449
4.6	New York University	96.1%	-0.7	429	6	30	484	96.7%	411	3	29	458
2.3	St. John's University	91.0%	-0.6	192	10	0	222	91.6%	186	21	0	226
4.2	Cornell University	89.2%	-4.2	170	2	1	194	93.4%	178	4	1	196
3.3	Fordham University	88.0%	-0.5	310	25	1	382	88.4%	302	24	2	371
1.9	New York Law School	87.5%	6.5	200	38	0	272	81.0%	167	52	2	273
2.9	Cardozo School of Law	85.4%	0.5	228	11	1	281	84.9%	207	23	1	272
2	Pace University	85.4%	5.9	147	11	0	185	79.5%	118	14	0	166
2.3	Hofstra University	83.4%	1.0	162	13	1	211	82.4%	186	11	0	239
2.6	Brooklyn Law School	82.9%	2.4	240	31	0	327	80.5%	245	48	0	364
2.0	Albany Law School	82.4%	3.4	99	12	1	136	79.0%	86	8	0	119
2.3	City University of New York	80.4%	6.4	126	9	0	168	74.0%	64	7	0	96
2.3	University of Buffalo-SUNY	80.1%	2.1	96	17	0	141	78.1%	101	13	0	146
1.5	Touro College	77.9%	7.7	85	3	0	113	70.2%	95	4	0	141
2.4	Syracuse University	74.9%	-1.4	127	10	0	183	76.3%	116	16	0	173