Justice Kavanaugh mentions allocation of power over elections in Calvary Chapel dissent

I’m a little late to this (as I’ve been in the midst of a cross-country move!), but I wanted to highlight a passage from Justice Brett Kavanaugh’s dissenting opinion in Calvary Chapel v. Sisolak. The case was about whether regulations opening some businesses but not allowing churches to open were permissible, which I won’t rehash here. But I did want to highlight one portion of his dissenting opinion:

I agree that courts should be very deferential to the States’ line-drawing in opening businesses and allowing certain activities during the pandemic. For example, courts should be extremely deferential to the States when considering a substantive due process claim by a secular business that it is being treated worse than another business. Cf. Jacobson v. Massachusetts, 197 U. S. 11, 25–28 (1905). Under the Constitution, state and local governments, not the federal courts, have the primary responsibility for addressing COVID–19 matters such as quarantine requirements, testing plans, mask mandates, phased reopenings, school closures, sports rules, adjustment of voting and election procedures, state court and correctional institution practices, and the like.

(Emphasis added.) Professor Josh Blackman highlighted that this mention of elections was “not inadvertent.”

This is not a gloss on any notion of the Purcell principle, which says that federal courts should be particularly reluctant to issue orders affecting elections close in time to the election that may result in voter confusion. Earlier this spring in RNC v. DNC, it figured prominently (if disputably).

But those timing-based concerns are different from the recognition that “state and local governments, not the federal courts, have the primary responsibility.” The default power over the times, places, and manner of holding congressional elections is left with the states, unless the federal government chooses to enact legislation on the topic. For state elections, there’s even less for the federal government to do. And while the federal courts have increasingly relied on the Anderson-Burdick framework as a kind of catch-all opportunity for federal review of election rules, some federal courts have begun to push back. Justice Kavanaugh’s inclusion of this phrase suggests a similar reluctance.

Kamala Harris's other presidential eligibility question (and yes, she's qualified)

I noted earlier that 2020 has proven (so far) to be a quiet year for “natural born” citizen challenges. Senator Kamala Harris of California briefly ran for the Democratic presidential nomination, and she’s been named former Vice President Joe Biden’s running mate. It might lead to a flurry of challenges to her eligibility, as she was born to two (possibly) non-citizen immigrants (the details are thin about when her parents became citizens) in California. That, I think, makes her a “natural born citizen,” as Professors Eugene Volokh and Michael Ramsey point out. She must meet these qualifications because, as the Twelfth Amendment provides, “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

But I wanted to highlight another eligibility question (and spoiler alert, despite my clickbait-y headline, she’s qualified). The President must be “fourteen Years a resident within the United States.” Ms. Harris moved to Canada as a child, and she attended and graduated from high school there.

One ambiguity is whether this means fourteen consecutive years (including the fourteen most recent consecutive years) or fourteen cumulative years. Practice has long recognized it to be cumulative. Thomas Jefferson’s stint in France before serving as Vice President and President (before the Twelfth Amendment, but still a requirement to receive votes as presidential candidate), or Herbert Hoover’s service in London before his term in office, suggest as much. Alternatively, one might say that they were still “residents” of the United States, as it was the last true, permanent home with the intent to remain indefinitely, even if time away moved them abroad. Ms. Harris’s example seems less like Messrs. Jefferson and Hoover in that regard—she moved out of the country, established residence elsewhere, and later moved back to the United States.

Regardless, even if she was a resident of Canada for several years, she easily meets fourteen cumulative years as a resident of the United States. And, more to the point, actually, she meets fourteen consecutive recent years, as she attended college and law school in the United States in the 1980s, easily meeting thirty-plus years’ residency in the United States.

Regardless, her candidacy, like that of Canadian-born Senator Ted Cruz, offers a little something to test out the existing presidential qualifications framework.

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.

High-level implications: California Supreme Court reduces bar exam cut score from 144 to 139

Whew! A long time coming with a lot of implications about the ever-present debate about the “right” cut score. Here’s a few (ed.: hardly!) thoughts that come to mind.

First, California had the second-highest cut score (144), behind Delaware’s 145. (Even accounting for non-scaled score jurisdictions, it’s still probably the second toughest bar in the country). Lowering it 139 puts it behind Alaska (140) and Virginia (140)… and that’s it. So… from the second-toughest to the fourth-toughest.

California has basically permanently had a cut score of 144—it’s modified its scoring over the year, but this has been approximately the same over iterations of the test. Which is to say, lowering to 139 is a big change after several decades! (And I should add, still higher than the range of 133 to 136 proposed by many of California’s law deans in 2017.)

A recent standard-setting study suggested the cut score should remain roughly the same, consistent with historical studies in California, but it left open the possibility of a range of possible scores within an acceptable range. At the lower end, approximately two standard errors below the median recommended cut score of 143.9 (i.e., almost the same as the 144 existing cut score!) from the standard setting study, was a cut score of 139, consistent with a proposal from the state bar. This is the figure the California Supreme Court adopted.

So this 139 is not out of nowhere—it’s consistent within the range (admittedly, at the bottom of the range!) of options from the 2017 study. And it’s possible that score could change as the bar continues to examine the cut score in the future—but this will be a “permanent” change (i.e., not for this administration of the bar, like Oregon). I suppose one could chalk this up to a coronavirus-related change, but it is far more than that.

Second, it’s worth noting that despite being a relatively high cut score, California test-takers are typically more able than most test-takers, and the reduction will translate into significantly more attorneys. On the July 2018 bar exam, for instance, the mean scaled score was 142.8 compared to the national average of 141.1. Given that scores tend to follow a bell curve, this reduction in the cut score will sweep in a significant number of passers. For instance, a simulated cut score for the July 2016 bar exam of 139 increased the overall pass rate from 43.3% to 52.1%, with almost 800 new passers (many of these repeaters). It would also yield a 40% increase in the Black passing rate, 26.1% increase in the Hispanic passing rate, a 23.5% increase in the Asian passing rate, and 17.6% increase in the White passing rate.

Third, all else being equal, we would expect this particular cohort of attorneys admitted to the California bar (i.e., admitted with a score of between 139 and 143.9) to have an ultimate career attorney discipline rate of around 10% or so. All else being equal. It might be there won’t be the resources to discipline so many new attorneys (unless there’s increased funding). And California is also simultaneously (and rightly!) looking at proposals to improve concerns about attorney discipline. We’ll see if this affect ultimate career discipline rates.

This isn’t to say lowering the cut score is the wrong choice—it’s just to say that with any choice there will be tradeoffs. 90% of those attorneys won’t be disciplined over the course of their career, for instance (and one could ask whether discipline rates are the best or only measure of attorney competence, or whether discipline captures all harm to the public). And maybe better surveillance will minimize the risk to the public. Time will tell. (Sadly, it appears California hasn’t yet investigated with precision the relationship between bar exam scores and discipline—maybe it will now.)

Fourth, I can’t help but wonder if the reduction comes at a time as California has been losing ABA-accredited law schools at a sharp rate. The collapse in bar passage scores has particularly hit California schools. California has lost three ABA-accredited law schools in three years: Whittier in 2017, followed by La Verne and Thomas Jefferson, both of which became California-accredited schools in recent months. California nearly lost a fourth ABA-accredited school as Western State found a last-minute institution that saved it. I wondered back in 2016 if California would move in this direction to save schools. Maybe it’s a reason. I admit, it’s not in the letter and likely would never be publicly identified. But it’s certainly something that will help the remaining law schools.

Fifth, what will this mean for California law schools? To shamelessly borrow from an earlier post speculating on what would happen if the cut score were lowered to 139:

At least some law schools will admit larger classes. To the extent law schools were reluctant to admit larger classes because of concerns about bar passage rates, those schools will be more inclined to admit larger student bodies. Of course, there are still other reasons that schools may not increase their class sizes, or at least not substantially—they are concerned about their LSAT and UGPA medians for USNWR rankings purposes, they may be worried about finding meaningful legal employment for a larger number of graduates, and so on. But, at least one barrier in the admissions calculus has been partially removed.

Higher-ranked law schools may begin admitting more students that recently historically matriculated to lower-ranked law schools. That is, a new kind of competition may begin. In light of the thought mentioned above, it may not simply be that schools admit larger classes; they may be grabbing applicants who would have attended lower-ranked schools. This would exert downward pressure on lower-ranked schools in the event that competition for their prospective students increased.

Higher-ranked law schools may see improved racial diversity profiles among incoming classes, potentially at the expense of lower-ranked schools. This is good news for highly-ranked schools and students from racially diverse backgrounds. The lower score will tend to benefit racial minorities, as the data has shown that minorities fail the bar at higher rates. So highly-ranked schools can admit more diverse student bodies with greater confidence of their success. Of course, this will exert downward pressure on lower-ranked schools, who may see their diversity applicant pools dwindle or face pools of applicants with worse predictors than in past years.

Law schools will experience more price sensitivity from prospective law students. That is, the value of the law degree should decline in California, as the volume of attorneys increases and the price for lawyers drops. That should, in turn, make law students more skeptical of the existing value proposition of a law degree. Law schools that have relied on high tuition prices have benefited from the high bar exam cut score, because opportunities for attorneys have been relatively scarce; the drop in cut score will dilute the value of the degree and perhaps require some cost-cutting at law schools. This is not to say that an artificial constriction on the supply of lawyers is a good thing because it props up costs (in my personal view, I think it's quite a bad thing); but, it is to say that lowering the score will have the effect of making cost-sensitivity an increasing possibility.

California-accredited law schools will have opportunities to thrive. San Joaquin, for instance, would have a projected bar pass rate of 50% in 2017 if the cut score were lowered from 144 to 139. Lincoln Sacramento would have a projected bar pass rate of 47%. These exceed some ABA-accredited schools and start to look quite attractive to prospective law students. That’s particularly true given the tuition at these institutions, which is about half the typical ABA-accredited law school.

Negative impact in USNWR for elite schools, and positive impact in USNWR for more marginal schools. This category may not be immediately obvious to observers considering bar exam pass rates. That is, some might ask, wouldn't higher bar exam passing rates improve a school's USNWR profile? Not necessarily--particularly not if the overall passing rate increases.

USNWR measures bar pass rate not in absolute terms but in relative terms--the margin between a school's first-time passing rate in a jurisdiction and that jurisdiction's overall pass rates. If School A has a passing rate of 90% and School B 75%, showing some gap that's only part of the story: School A had a 90% rate in a jurisdiction with an overall rate of 60%, which means it actually did quite well; but School B had a 75% rate in a jurisdiction with an overall rate of 80%, which means it actually did poorly. USNWR measures that relative performance.

So if School A sees its passing rate increase to 93%, but the jurisdiction's overall passing rate increases to 85%, that's bad for School A in USNWR terms--its ability to outshine others in the jurisdiction has dwindled. In a state as large as California and with such a relatively low first-time overall passing rate, this gives elite schools an opportunity to shine.

Stanford, for instance, boasted a 91% first-time bar passage rate in a jurisdiction with a 56.3% first-time pass rate in July 2017, a 1.62 ratio. If the bar pass cut score is dropped to 139, the bar projects a first-time pass rate of 64.5%. Even if its pass rate increases to a projected 96%, its ratio drops to 1.49, a 0.12-point drop. The same holds true for institutions like USC (-0.08), UCLA (-0.03), and Berkeley (-0.06). These are just one (very small!) factor in the USNWR ratings, and these figures are ultimately normalized and compared with other institutions nationally, but it will marginally hurt each of these schools as an institution in the rankings--even though it might benefit a (relatively) small cohort of graduates from these institutions each year taking the bar exam.

In contrast, schools that have had below-average bar exam performance would see a significant increase—some of them in my projections moving up 0.2 points in their ratios or even more. If the school is in the unranked tier, it might help get the school into the rankings; if they are ranked lower, it might help them move up the rankings, an added benefit to their graduates passing the bar at higher rates. And it might help increase the employment rates of these schools.

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In short, this is a huge relief to many test-takers, and in particular to many repeaters who were close on a previous administration. It should result in thousands of new attorneys entering California in short order. The effects? Well, good for law schools in the short term, and good for recent graduates. For everything else, we’ll have to wait and see.

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.

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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.

Justice Kagan wrote on behalf of eight justices—not seven—in Chiafalo v. Washington

I’ve seen several versions of the claim that Justice Elena Kagan’s opinion in Chiafalo v. Washington was “on behalf of seven justices,” with Justice Clarence Thomas concurring in the judgment, joined in part by Justice Neil Gorsuch.

That’s not accurate. Justice Kagan’s opinion is on behalf of eight justices, all but Justice Thomas. This comes from the case syllabus:

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, ALITO, SOTOMAYOR, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment, in which GORSUCH, J., joined as to Part II.

Admittedly, one’s eyes might glaze over the caption to see that Justice Thomas concurred in the judgment, in which Justice Gorsuch joined, and conclude that Justice Gorsuch did not join Justice Kagan’s opinion. But according to the case caption, he joined Justice Kagan’s opinion in full, and he joined part of Justice Thomas’s opinion.

This is a curious move, to say the least, and feels a little belt-and-suspenders for Justice Gorsuch. Justice Kagan’s opinion relies on states having power under Article II and the Twelfth Amendment, which “give[s] States broad power over electors.” Justice Thomas’s opinion relies on states having power under the Tenth Amendment: “When the Constitution is silent, authority resides with the States or the people. This allocation of power is both embodied in the structure of our Constitution and expressly required by the Tenth Amendment.” He continues, “Put simply, nothing in the text or structure of Article II and the Twelfth Amendment contradicts the fundamental distribution of power preserved by the Tenth Amendment.”

Justice Gorsuch didn’t join Justice Thomas’s part of the opinion describing Article II and the Twelfth Amendment as simply an obligation on the states rather than a source of power to the states. So he might agree that there’s power in Article II and the Twelfth Amendment, and he wants to emphasize the structural point of the Tenth Amendment.

But there might be another reason. Might. Justice Gorsuch might have sought to protect this line of Justice Thomas’s opinion from attack by Justice Kagan’s majority opinion, which did, after all, secure eight justices. Justice Kagan did attack Part I of Justice Thomas’s opinion, but she didn’t make any mention of the Tenth Amendment—and for that, Justice Gorsuch could join in full. Indeed, it might be a reason why Justice Gorsuch didn’t need to identify a separate endorsement for Justice Thomas’s position in Baca. It preserves a line of Tenth Amendment reasoning for future cases that hasn’t been expressly dismissed by a majority of the Court.

Maybe it’s too much speculation at this point. But the opening point of this post still remains—eight justices, not seven, joined in the principal opinion in Chiafalo.

 I revised the title because the post was confusing. My apologies!

A puzzle to consider in Colorado Department of State v. Baca

The two “faithless elector” cases were originally consolidated to be heard together. But Justice Sonia Sotomayor late in the process discovered she knew one of the parties in the Colorado case and withdrew. That may have been a fortuitous act and provided a clean opinion in Chiafalo v. Washington—and the per curiam opinion in Colorado Department of State v. Baca gives us a hint why.

Many have focused on the substantive difference between the Washington and Colorado laws—Washington counts a faithless vote but fines faithless electors; Colorado does not count a faithless vote and replaces a faithless elector.

But there were material procedural differences, too—specifically, multiple material problems with the Colorado plaintiffs’ case in Baca. In Washington, the electors were fined and contested that in state court. Easy injury to provide (a $1000 fine), easy remedy to seek, easy cause of action to raise.

In Colorado, however, plaintiffs faced several challenges. Were their claims moot? Could they sue a state under Section 1983—or, really, could the state waive this argument when sued for damages?

At oral argument in Baca, Justice Stephen Breyer in particular with concerned about these procedural wrinkles in the Colorado case. Justice Samuel Alito and Neil Gorsuch also raised versions of such concerns.

Now, because Justice Sotomayor was recused from Baca, the principal case became Chiafalo, because all nine justices could participate. Eight justices joined Justice Elena Kagan’s opinion; Justice Clarence Thomas concurred in the judgment, which Justice Gorsuch joined in part.

Now, to the entirety of the Court’s per curiam opinion in Baca:

PER CURIAM.

The judgment of the United States Court of Appeals for the Tenth Circuit is reversed for the reasons stated in Chiafalo v. Washington, ante, p. ___.

It is so ordered.

JUSTICE SOTOMAYOR took no part in the decision of this case.

JUSTICE THOMAS concurs in the judgment for the reasons stated in his separate opinion in Chiafalo v. Washington, ante, p. ___.

I looked at this opinion a few times wondering what happened. Specifically, what happened to Justice Gorsuch? He agreed with Justice Thomas’s Tenth Amendment argument in Chiafalo. What about here? Is the Tenth Amendment no longer in play?

And then I considered another possibility—as a per curiam opinion, we don’t see the lineup of justices. Some justices may not agree with the outcome but may choose not to note their dissenting opinion. It might be the case that Justice Gorsuch (and perhaps another, like Justice Breyer) didn’t agree to reverse for the reasons stated in Chiafalo. It might be that the procedural wrinkles would have been a reason to reverse, but they opted not to publicize that here and now, saving the issue for another day.

I don’t know. I would, however, resist the urge to call Baca a “unanimous” decision of the Court. It certainly appears unanimous. But there are reasons to think that some of the procedural wrinkles would lead some members of the Court to come out differently if they couldn’t hide behind the per curiam opinion here.

Avoiding the temptation to overread Chiafalo v. Washington

I’ve taken a day to chew over the Supreme Court’s decision in Chiafalo v. Washington, the “faithless electors” case. I’ve read a lot of commentary and talked to a lot of people who’ve wondered about broader implications of this case. My reaction is: it might be best not to overread this case.

This is, in one sense, an extraordinary case, but in another, and perhaps more significant, sense, a narrow case. The case is really about one set of facts: the state power to penalize or replace electors who cast a vote contrary to statewide popular vote winner.

I think some of the Court’s language could plausibly be used in other contexts. For instance, when it talks about the “State’s popular vote,” could that preclude a pledge for the national popular vote winner? Maybe—but, then again, maybe because that’s the way states do it now, and that’s what Washington and Colorado do, so that’s the language used. When the Court says that the Equal Protection Clause binds legislative decisionmaking, does that mean the legislature no longer has the power to select electors itself? Maybe—but, then again, the Court elsewhere favorably cites the deferential approach in McPherson v. Blacker. Could Congress be bound by the Court’s reasoning? Maybe—but, then again, it favorably cited “Congress’s deference to a state decision” elsewhere.

In short, my instinct in a decision with an eight-justice majority is to closely heed the narrow holding—states, I think, are free to run with statutes that bind presidential electors—and to loosely consider the Court’s reasoning for later application. It might be persuasive to a five-justice majority considering a later issue, but it’s just as easily distinguishable for some of the reasons I identified. The context matters, and the context here—again, while extraordinary—is narrow. So, in short, the reasoning is as persuasive to later courts as later courts deem it—no more, no less, and, really, hardly binding. The “mays” are just mays, not musts.

That’s my sense of how to read this case, anyway.