Some thoughts about "bar exam federalism"
Professor Dan Rodriguez has some important thoughts over at PrawfsBlawg about the “high costs” of “bar federalism.” I had a few thoughts I wanted to add to his helpful perspective.
While most states have moved toward a delayed bar exam with an expanded “limited practice” model for would-be bar exam test-takers, Utah recently announced a “diploma privilege” model, where graduates of certain ABA-accredited law schools who have 360 hours (or about 9, 40-hour weeks) of supervised practice by the end of the year will be eligible for admissions without a bar exam. (This model, of course, is subject to public comment and review.)
Utah chooses not to limit the diploma privilege to its two in-state law school, Utah and BYU, which was a concern I raised earlier in considering the cohorts to be affected by delays to the bar exam. Instead, it extends to graduates of any ABA-accredited school with a 2019 cumulative bar passage rate of 86%, which was the State of Utah’s bar pass rate.
Professor Rodriguez laments that this standard might disproportionately adversely affect California’s law schools, because California has an unusually high cut score for its bar examination. That is, an 86% threshold doesn’t make a lot of sense when we consider the varying bar exams around the country—and that Wisconsin has two law schools with diploma privilege that would essentially automatically qualify. While I think his concerns are legitimate, I look at it from the opposite perspective (in a way that negates any concerns), and descriptively overstated.
That is, while Professor Rodriguez laments that many schools are left out of Utah’s proposal, I see Utah’s proposal as exceedingly generous, increasing the diploma privilege opportunity from two in-state schools to around 65 schools, about 1/3 of all ABA-accredited schools! I suppose it all depends on one’s perspective.
Now, a bit of a slightly unfair narrative here, so please bear with me—even indulge me. Utah’s bar exam statistics disclose very little. But Utah knows how many out-of-state law school grads take its bar exam each year. My back of the envelope calculations suggest at least 2/3 of test-takers are in-state. For a bar that has around 225 first-time test-takers in July from ABA-accredited schools, we are dealing with a very small pool of out-of-state test-takers in the first place—say, around 75, if not fewer.
Furthermore, we know that “national” schools, typically “selective” or “elite” schools, place graduates nationally. So if the Utah bar is concerned about a rule that would keep graduates of, say, schools from New Haven or Cambridge from returning to Utah, it needs a rule that would allow them, too. But not a rule based on something crass like USNWR rankings.
I don’t think an 86% bar passage rates is a great way of measuring schools with a sufficient quantity of “good” graduates such that the Utah state bar feels comfortable admitting them without an exam, but it has its virtues. For instance, every school in the Top 20 of the USNWR rankings makes the cut. Outside the top 20, only a few in, say, the top 45 miss the cut—Emory, UC-Irvine, UC-Davis, and the University of Washington, to name most if not all. And this is also a notable cut line given that both BYU and Utah are in the top 45 of the latest USNWR rankings. Again, crass, but roughly accurate.
If one considers the selectivity of the law school as both a proxy of the number of out-of-state bar exam test-takers, and the quality of the graduates, then the standard gives the benefit to a batch of other schools that fall outside the top 45 but, on the whole, gives an advantage to the very schools most likely to send grads to Utah and to pass the bar at the highest rates.
But, Professor Rodriguez wonders about a disproportionate impact on California schools. Dean Paul Caron, for instance, emphasizes that just four of California’s 21 ABA-accredited law schools would qualify.
Focusing on USNWR top-45 schools, UC-Davis saw just 12 of its 148 test-takers take a non-California bar in 2019—scattered across 5 jurisdictions, with an out-of-state first-time pass rate of 75% (and not reflective of California’s high cut score, it should be noted). UC-Irvine had just 11 of its 135 test-takers take a non-California bar in 2019—scattered across 7 jurisdictions, with an out-of-state first-time pass rate of 91%. (These are much lower out-of-state figures than either Emory or Washington.)
This is to emphasize an earlier point—the most “elite” or “selective” schools disproportionately place students in out-of-state bar exams. And California’s schools—even California’s very good schools like Davis and Irvine—place very few out of state. (It’s also, I think, a testament to law student choices of California schools as a greater commitment to remaning in in California.) And, I think it’s fair to assume, very very few into Utah.
Indeed, the Utah state bar knows as of April 1, its cutoff for this rule, which test-takers from which schools enrolled for the state’s bar. I would guess that it’s a fraction of its prospective test-takers who don’t make the cut.
That’s disappointing for them to be sure. But, again, I look at it from the perspective of allowing about 63 law schools to secure diploma privilege where I’d expect two. And while some out-of-state would-be test-takers are out of luck, so are repeaters for this administration of the exam—some of whom assuredly would have passed.
There are probably better rules to come up with, as Professor Rodriguez emphasizes. But they would be more complicated and be targeted at an increasingly small cohort of students. That isn’t to diminish the deep disappointment recent graduates of those excluded law schools must feel as they face a delay to their practice of law, and the need to take a bar exam when others don’t. But it’s to say that I think the impact is not only a generous one to the vast majority of law school graduates who’d take the Utah bar, but aslo adversely affects very few. Perhaps the Utah bar will disclose those figures in the weeks ahead.