A lot of people are incensed by the New York proposal to prioritize seating for local law school grads at the planned Fall bar examination. And while critics shred New York with sharp takedowns of straw arguments and indulge in fairy tale logistics about New York conjuring up an additional 7 or 8 thousand socially distanced seats by the end of the summer, Massachusetts took a look at New York’s plan for an orderly administration of a COVID-era bar exam and said… yeah, we’re going to do the exact same thing.
This is what happens when you spend all of your time arguing “coulda” and not “shoulda.” With all the effort poured into arguing over whether or not states can administer an in-person exam this way, critics have more or less forfeited the debate over whether or not states should administer an in-person exam at all at this point. The idea of an online exam appeared as an afterthought in the much-heralded “Deans Letter” to the New York bar examiners despite being the only remotely workable solution offered.
Massachusetts seemed to be charting a better course than New York, having told the NCBE that if it couldn’t provide a workable online bar exam, they’d go ahead and write their own online test to make sure that examinees who want to practice in the state could still get a license as quickly as possible. And, to their credit, that’s still on the table. But in the most recent proclamation, the state indicates that they’ll administer the in-person bar exam — which unlike the potential online test would provide portable scores — with seating prioritized for local law school grads.
This statement, sent around to Themis Bar Review clients, recaps the Massachusetts proposal.
It’s not ideal and states should be pushed to come up with innovative, outside-the-box solutions instead of steadfastly sticking to a broken, in-person bar exam process. But if no one is going to step up and actually challenge that status quo, then this is a perfectly reasonable solution.
Bar examiners are struggling to figure out how to lock down thousands of seats, spread over enough area to allow appropriate distancing, on short notice, amidst uncertainty that it will even be safe to open up again by September. Going forward with an in-person bar exam under these conditions is bonkers, prioritizing seating for local graduates most likely to be taking the in-state jobs that require immediate bar passage and leaving those with steady employment to take a later administration makes sense.
Dear Massachusetts, please junk this plan. Offer the online exam to all takers. Sure, it’s not “approved” by other states… yet. Lobby other states to accept scores from this self-composed exam. Northeastern states, at the very least, should be prepared to accept this Massachusetts ersatz UBE for the Fall of 2020 in order to keep the flow of new attorneys moving. This is what powerful voices should be fighting for.
But instead we should expect more thinkpieces about how out-of-state T14 students should be able to take bar exams huddled on their nice campuses while the states have 2,000-seat shortfalls for all other takers.
Because everything’s broken.
Earlier: Law School Deans Rail Against Grave Injustice Of… Waiting A Few Months To Take The Bar Exam
With NCBE Quibbling Over Online Bar Exams, Massachusetts Says They’ll Just Write Their Own
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.