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.