Some thoughts on the bar exam and Covid-19
A helpful and timely working paper from several law professors—including authors whose work I’ve admired in the past like Professor Deborah Jones Merritt, Professor Joan Howarth, and Professor Marsha Griggs—offers much to consider about the bar exam in light of the coronavirus pandemic and the spread of the illness Covid-19. That is, the coronavirus outbreak may persist into July and call for rethinking how to address the bar exam. They’ve done a tremendous job in a short period of time thinking about it and writing about it.
I wanted to address the question slightly differently from the framing in their paper, however. The framing in their paper is as follows:
At the same time, it is essential to continue licensing new lawyers. Each year, more than 24,000 graduates of ABA-accredited law schools begin jobs that require bar admission. The legal system depends on this yearly influx to maintain client service.
These solutions, then, are oriented toward looking at the Class of 2020 and how this cohort of attorneys can be licensed. To be sure, this is how the bulk of new lawyers are added to the legal profession each year; this is a pressing concern for law schools, whose graduates are placed into a precarious position; and this is assuredly the focus of state licensing boards.
But looking at the position slightly differently can present a very different picture: instead of looking at the Class of 2020 graduates of ABA-accredited schools taking the bar exam, one might look at the administration of the bar exam. I think this yields some contrasts in the scope of their proposals.
The authors of the paper nicely identify six alternatives, the first three “likely to fail,” the last three with “considerable promise,” and perhaps jurisdiction-specific solutions mean some apply in some places but others in others:
Postponement
Online exam
Exams administered in small groups
Emergency diploma privilege
Emergency diploma privilege-plus
Supervised practice
I’ll come to some details of these proposals in a moment, but the bulk of them are in the paper. At the same time, I want to focus on several population who take the bar exam in a given year:
Cohort A. JD graduates of an ABA-accredited law school from that state: This is probably the largest contingent of bar test-takers, although many take the test out of state.
Cohort B. JD graduates of an ABA-accredited law school from out of state. Some law schools like Yale predominantly place graduates out of state. Virtually every law school sends at least some students to take another state’s bar exam.
Cohort C. LLM graduates of an ABA-accredited law school from that state. While JD graduates are the vast majority of graduates each year, foreign-trained lawyers commonly earn an LLM in the United States to enable them to take the bar exam and practice in the United States.
Cohort D. LLM graduates of an ABA-accredited law school from out of state. Given that New York and California are popular destinations for most foreign-trained attorneys, LLM graduates in other states often head to those states to take the bar.
Cohort E. Graduates of non-ABA-accredited law schools. While these are far rarer, in states like California graduates of state-accredited schools can take that state’s bar exam.
Cohort F. Test-takers who failed a bar exam previously. A significant number of retakers make up the bar exam test-taking cohort each year.
Cohort G. Attorneys admitted in other jurisdictions taking the bar. While reciprocity exists in some states, it doesn’t in others, and attorneys sometimes have to take a bar exam to get admitted to that jurisdiction.
(Maybe you can think of other groups. Let me know!)
So, the bar exam is being administered to these sets of test-takers.
Cohorts A through F are all “new” lawyers in the United States; Cohort G includes those who are already practitioners elsewhere (or perhaps let their license expire elsewhere).
Proposals 1 (Postponement), 2 (Online exam), and 3 (Exams administered in small groups) would apply to all seven of these cohorts. But, I think, as the authors of the paper note, these seem less likely options. Particularly Proposal 1—it’s not clear when this pandemic will end, and states have to act uniformly to take advantage of the uniform bar exam or the MBE. And regarding Proposals 2 & 3, feasibility might be possible if aggressive measures were pursued.
Proposal 4 (Emergency Diploma Privilege) offers strong benefits for Cohort A. Undoubtedly, recent law school graduates would not have to study for the summer bar exam; they would not need to spend money on bar prep courses; they would be guaranteed to be admitted to practice (subject, of course, to character & fitness reviews, and passing the MPRE).
That said, I would take some issue with the comparison to Wisconsin—yes, Wisconsin has had diploma privilege. But, (1) the diploma privilege mandates an extensive required curriculum, (2) Wisconsin’s cut score for the bar exam is the lowest in the United States, and (3) the state has just two law schools, Wisconsin and Marquette, and about 75 law schools have worse median LSAT profiles, and about 60 law schools have worst 25th LSAT profiles, among their incoming classes than Marquette. In other words, all other states have higher bar exam standards, many have graduating students with materially lower predictors of bar passage, and no states require the kinds of core curriculum of Wisconsin.
But setting all those aside, it is an emergency situation (and perhaps Proposal 5 can help take care of some of this), and we shouldn’t expect outcomes like those in careful set-ups like Wisconsin. But note that this only benefits Cohort A. Cohort B (out of staters) would not benefit, unless the states began instituting some reciprocity of diploma privilege as the paper suggests as a possibility. It’s not clear that LLM graduates would benefit (in Wisconsin, for instance, they can’t—it applies only to “84 semester credit” degrees, i.e., the JD). The paper’s proposal extends only to ABA-accredited schools and first-time test-takers: “solely to graduates of the class of 2020 (including those who graduated in December 2019) from accredited law schools. Individuals who had previously taken and failed a bar examination in any state could be excluded.” (Emphasis added.) And it doesn’t help Cohort G, those trying to get into the bar.
Now, it might be that Proposal 4 is still a good proposal and needs to be supplemented with other proposals (say, Proposal 3 now that the test-taking cohort is much smaller). But it’s to emphasize that bar exam solutions focusing on recent graduates may miss significant other cohorts seeking admission to the bar.
Proposal 5 adds to Proposal 4—requiring some “bridge the gap” programs, CLE requirements, CALI lessons, or the like. It would add complexity and help overcome some of the concerns of Proposal 4—that is, given that Wisconsin has a bar that requires greater supervision on the law school end, maybe other states could require greater supervision on the back end.
Proposal 6 would allow supervised practice, with a supervisor who would advice them and, upon completion of 240 hours’ of work (e.g., 6, 40-hour weeks), graduates could be admitted to that bar. This helps extend to Cohort B: “Notably, this option would allow jurisdictions to license lawyers graduating from law schools in any state.” Again, however, the proposal has some limitations, extending to “2020 graduates of accredited law schools.”
These last three proposals can help Cohort A. They could, in some circumstances, help Cohort B.
But it’s not clear that they would necessarily help others. It could be, I suppose, that a bar might loosen its reciprocity rules under Cohort G for those who registered to take the bar. Or it might extend some of them to non-ABA-accredited graduates.
It’s particularly worth considering, however, what to do with everyone else. That is, these programs might help recent graduates. But some people will still want to take the bar! Should states just cancel the bar? Those who failed before can’t take it? Should they try one of the first three proposals for other cohorts?
It’s not clear to me what the best approach is. The bar exam affects far more than recent law school graduates, although law school educators (including me!) are particularly concerned with this cohort. The state bar is going to have to determine how to handle all of these cohorts who might be affected if Covid-19 restrictions extend into July.
There are no easy answers. I appreciate the authors of this study for putting such clear and helpful options on the table. I imagine state bars around the country are considering the appropriate paths to take. I look forward to seeing more such discussions play out in the weeks ahead, and I hope state bars can come up with solutions that best help the legal system and all prospective test-takers.