America Was Ripe For Humiliation 

President Trump (Photo by Drew Angerer/Getty Images)

In 1793, China’s Qianlong emperor dispatched a letter to King George III of Great Britain in response to the haughty demands of Lord Macartney’s embassy to Beijing. He wrote, “Our dynasty’s majestic virtue has penetrated unto every country under Heaven, and Kings of all nations have offered their costly tribute by land and sea. As your ambassador can see for himself, we possess all things. I set no value on objects strange or ingenious, and have no use for your country’s manufactures.”

Historians have lately questioned the popular interpretation of the emperor’s letter as signaling China’s rejection of modernity and setting it up for later victimization by technologically more advanced Western colonial powers. Nevertheless, one can’t deny the stark contrast between the emperor’s hubris — writing dismissively of “barbarian merchants” and asserting China’s global preeminence — and his country’s 1839 defeat in the first Opium War, kicking off its Century of Humiliation. It’s illustrates how rapidly a nation standing proudly at the top of the heap — China in the early 1800s was the world’s largest economy — can be brought to its knees.

China’s dramatic reversal of fortunes less than 50 years after the Qianlong emperor’s letter has been on my mind as a growing number of countries have shut their doors to American visitors due to our country’s inability to contain COVID-19. It’s a tragic reminder that it was only a matter of time before we went the way of all great powers that have experienced national decline — initially remote and equivocal, then suddenly undeniable and inexorable — after long imagining themselves invincible to the vicissitudes of history.

Where the emperor of China wrote that his country’s majestic virtue had penetrated unto every country under Heaven, we call ourselves “The Greatest Nation in the World.” Where China possessed all things and had no use for other countries’ manufactures, we boast of our “American exceptionalism” and never want for excuses for why we’re the only industrialized nation without universal healthcare.

But nobody stays on top forever. China learned that when it lost the first Opium War. Britons finally saw the sun set on their empire with the Suez Crisis of 1956. Thirty years later, the Chernobyl nuclear disaster set in motion the collapse of the Soviet Union. Scholars writing the history of the decline and fall of the American Empire will likely view COVID-19 in a similar light: the decisive event exposing and amplifying all the warning signs that we hitherto ignored or deprioritized because we were riding high and could avoid treating self-improvement or renewal with any urgency. Indeed, with 4.4 million Americans infected and 150,000 dead, “greatest” and “exceptional” have taken on a perverse new meaning.

Our country’s sudden humiliation should not be regarded as a deserved comeuppance or greeted with schadenfreude any more than the suffering experienced by countless Chinese as the Qing Dynasty crumbled and colonial powers picked over its carcass. But for ordinary Americans, decline is no longer a distant abstraction.

For example, our passport officially affords us visa-free entry to more than 180 countries, but presently leaves us looking like the uncool people outside the nightclub to whom the bouncer coldly says “not on the list” before unhooking the velvet rope for the VIPs. Our economy, which was long the envy of the world and had seen sustained and steady growth since the Obama administration, now sinks to levels of penury unseen since the Great Depression, even as other developed countries’ economies have started growing again thanks to their leaders’ smarter policies for mitigating the economic consequences of lockdowns.

Now, the deficiencies we accepted for so long are laid bare. We can no longer overlook that even before COVID-19, millions of Americans were a cancer diagnosis away from bankruptcy or left begging from strangers to pay for medical care. We can no longer dismiss that China built the world’s largest high-speed rail network in less than two decades while our already decrepit passenger rail system has to cut back on service. We can no longer disregard that people in Western European countries have long enjoyed a higher quality of life — with better pay, stronger labor protections and benefits, and greater upward mobility — than we do.

Before COVID-19, some variation of “love it or leave it” often greeted anyone with the temerity to suggest we have anything to learn from other countries, as if suggesting so were unpatriotic. After all, if you’re already convinced that you’re the Greatest Nation in the World and exceptional, why look beyond your borders and bother noticing that many other countries offer their citizens a quality of life palpably superior to ours?

That same arrogance is an underappreciated reason we ended up with Donald Trump as president and unable to dig ourselves out of the COVID-19 hole. Since the end of World War II, our peer nations have had their share of bad leaders, but with few exceptions, they have understood the importance of choosing people to helm the ship of state who are competent and put their countries’ best feet forward on the global stage. But we elected as president an individual obviously and manifestly unsuited to public office, a bigoted charlatan whose track record consisted almost entirely of failing upward and who clearly endangered the welfare of the nation and had no interest in uniting it. Racism among the electorate goes a long way to explaining Trump’s victory, but another reason is that being the Greatest Nation in the World, ever exceptional, granted us the luxury to be undiscerning about whom we put in charge.

COVID-19 has shown us we can no longer afford such wanton carelessness and arrogance.

Our arrogance doesn’t leave us incapable of self-reflection or mean that we’re behind the curve in every respect. The massive outpouring of support for Black Lives Matter dwarfs any effort among white Europeans to address the equally horrific racism, discrimination, violence, and poverty that the continent’s Roma people face. And alongside its gleaming bullet trains, China has constructed the biggest concentration camp system since World War II to detain and abuse Uyghurs and other minorities on the basis of ethnicity and religion.

It’s the capacity for national self-reflection demonstrated by BLM that mitigates my pessimism. While the COVID-19 disaster shows that we’ve finally pushed our luck too far, I’m equally hopeful that it could engender a sense of humility that could make us more receptive to the idea that maybe we’re not the best at everything and that the world indeed has a few things to teach us.

But tempered pessimism shouldn’t lead to optimism. What we need now is to instead be realistic and to accept that we have two paths to choose. The more challenging path is to become a better country and provide our people with a better quality of life. The easier path is to descend further into self-satisfied exceptionalist delusion, even while the rest of world passes us by, as our nation continues to fall apart.

Where China’s emperor wrote off Britain’s manufactures, our emperor walks naked through the streets. Let’s not allow ourselves to become the country where the kid who points out his nudity is whisked away by camo-clad secret police in an unmarked minivan.


Alaric DeArment is a reporter for MedCity News, a sister publication of ATL. However, the opinions herein are solely his own. Follow him on Twitter at @biotechvisigoth.

Law Grad Who Tested Positive For COVID-19 After Sitting For Bar Exam Speaks Out

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It was completely predictable. We knew this was going to happen. I just didn’t know it was going to be me. I would think it was allergies if it weren’t for that I had just tested positive for COVID. I feel horrible that this has happened and I was involved in it.

— Sydney Donovan, a recent University of Denver Sturm College of Law graduate, commenting on the fact that she learned of her positive COVID-19 diagnosis as soon as she finished sitting for the bar exam in Colorado. Donovan had no idea she was sick and says she would have stayed home if she knew she had COVID. “I felt, I think, as (reasonably confident) as I think anyone can coming out of the bar exam,” she said. “It’s a really tough test.”


Staci ZaretskyStaci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Career Counseling And Coping In COVID-19 Quarantine

I have an office. It has four walls, a door that can close, even a window … that looks upon an atrium. It is festooned with my college and post-grad degrees, an ever growing collection of pictures of my kids, and an assortment of Kansas basketball paraphernalia. I know my office exists. However, like many liberal arts majors, I took an undergrad class in cultural anthropology. We read Adorno, Horkheimer, and Baudrillard, discussed simulacra, and even watched Blade Runner. While I have memories of my office, and can even drive by the building, if I do not go in and see it with my own eyes, can I be confident it exists?

Due to the COVID-19 pandemic, I have been out of the office and working from home since mid-March. Given the babytown frolics nature of the U.S. federal government’s response to COVID-19, it is highly likely that this exile will continue for the foreseeable future.

Considering that the virus has killed more than 150,000 Americans over the last four-plus months, including many in the legal industry — many are better suited to eulogizing the famed litigator, and COVID-19 victim, Stephen Susman, but I will use this space to mention two aspects of his life that might not get coverage elsewhere: first, were it not for his personal largesse, it is entirely possible that my salary earned during three years at the American Constitution Society would have been denominated in cans of Fancy Feast rather than dollars; second, without his unceasing focus and pressure on judicial nominations during the Obama administration, there would be far fewer judges able to push back against the ongoing Supreme Court auditions masquerading as jurisprudence currently unfolding in some federal courts across this country — my existential thoughts might come off to many as plaintive whines.  But especially with law schools starting up, in some way, shape, or form, over the next several weeks, it feels worth exploring how those of us in career services can help students from a distance and how we all can cope with the ramifications of this ongoing isolation.

In the Before Times, otherwise known as February, I had a pretty solid routine established when working with the Vanderbilt students I counseled. If a student had a question, they could shoot me an email, and we could try and hash out a solution. For more complex problems, they could come by my office, and we could figure things out face to face. However now, unless Vanderbilt attempts to develop a NBA-esque bubble environment, such in-person meetings are unlikely to happen. Does that mean communication with students should become as sparse as rapid COVID-19 tests across the United States? Of course not. Instead, it means that those in career services will have to embrace different technologies, both old and new.

As someone who turns 40 this year, I sit right on the border between Generation X and Millennials. Yet despite this line straddling, I do have one overwhelming Millennial personality trait, a passionate hatred of phone calls.  But desperate times call for desperate measures. If a student, or even an employer, has an issue or question that requires a lot of conversation, it might be best to pick up the phone and figure it out. I have given out my cellphone number more in the past four months than in the entirety of my nearly six years of marriage. But Alexander Graham Bell’s invention is not the only way to communicate during quarantine. Whether via text, FaceTime, or its corporate cousin that has come to embody 2020, Zoom, a plethora of ways exist to talk through CSO issues while maintaining social distancing.

The reason for developing multiple lines of communication is that for as many questions as career professionals might have in the midst of the pandemic and concomitant economic collapse, law students are going to have even more. Once again, in the Before Times, there was a familiar structure and process to acquiring a legal job. Experience alone was often enough to answer any question that a student could put forth. That is no longer the case as the industry undergoes seemingly daily changes. It is critical that as sources of information, those of us in CSO keep ourselves well informed. Obviously, sites like Above the Law should be daily reads, as should be The American Lawyer.  But I would recommend not limiting one’s self to just traditional, well-trafficked blogs and websites. While I have previously questioned the utility of legal employment advice on Reddit, the ability to get on-the-ground updates from students either in summer associate programs or activity seeking out a job can provide much needed information about how things are changing in the legal employment sector.  Twitter has also been a subject of derision in this column, but social media has proved remarkably valuable for students looking to harness their collective energy to tackle problems brought on, or even just amplified, by COVID-19. The best example of this is United for Diploma Privilege, which is working to highlight potential health issues that might arise from law school graduates having to spend multiple 12-hour-plus days in packed convention centers, where in some instances the more significant nod to COVID-19 prevention is that male test takers do not have to wear a tie. They are a must follow for anyone in the industry or really anyone just interested in basic concepts of justice. I even jumped on a National Association of Law Placement webinar the other day that featured a fantastic discussion of the ever-shifting obstacles being placed in the way of international law — as well as undergraduate and graduate — students.

Lastly, while vitally important to be there for your students and stay abreast of the ever-changing legal employment arena, it is also important to stay connected with the outside world more generally. In these isolating times, it is easy for people to become atomized and cut off from others. Everyone, whether they work in career services, elsewhere in a law school, are a law student, or could not tell the difference between a tort and a torta, needs coping mechanisms during the pandemic. As difficult as it can be while wearing a mask and socially distancing, try to engage with society and culture. Kevin Clark, the excellent NFL staff writer at The Ringer, has theorized that the reason so many NFL head coaches are fans of Bon Jovi, Guns n’ Roses, and other late ’80s/early ’90s bands is that once a coach rises to the level of offensive or defensive coordinator, their lives become too consumed with football to allow them to partake in new music, so their preferences become almost frozen in amber. While not roaming the sidelines, between four kids and a never-ending catalogue of podcasts, I similarly find myself slightly disconnected from the broader musical landscape, and this is coming from someone who not only has most of the albums on the Pitchfork Best of the Year list from 2005-09 but probably saw most of those bands live.  So a little while back, I dove into the new releases section of the iTunes store and picked up, among others, Fiona Apple’s Fetch the Bolt Cutters. By the time I got to “Relay,” which was Apple’s reaction to the Brett Kavanaugh confirmation hearings, my only thought was that the Recording Academy needs to treat the album like it was Ron Swanson ordering bacon and eggs from an Indianapolis diner.

Not everyone will connect to culture via music, but whether it is books, or art, or altogether something else, find a way to make sure quarantine is not a completely isolating existence.

Eventually, all of this, the pandemic, quarantine, most social distancing, will come to an end. While that ending might be less a happy drive through an idyllic countryside and more an origami unicorn which raises disturbing conclusions, it will still come about. Until then, it is vital for those in career services to be there for our students, stay abreast of the ever-changing legal news, and try to stay somewhat connected to broader society.


Nicholas Alexiou is the Director of LL.M. and Alumni Advising as well as the Associate Director of Career Services at Vanderbilt University Law School. He will, hopefully, respond to your emails at abovethelawcso@gmail.com.

Hedge Fund Manager’s Dog Travels In Higher Style Than He Does

Cadence Corner: Hiring A Chief Diversity Officer

Welcome to Cadence Corner. In this occasional series of informal conversations, I will interview Monique Burt Williams — CEO of Cadence Counsel, the in-house division of the Lateral Link consortium of legal recruitment firms — about timely topics in the world of legal hiring and recruiting.

Today’s topic: the rise of the chief diversity officer (CDO). Does your law firm, company, or other organization have a CDO? If not, perhaps it should. As diversity and inclusion become increasingly important — to law firms, their clients, and the customers of their clients — organizations benefit from having professionals dedicated to the promotion of these values.

Not surprisingly, the number of searches for diversity and inclusion professionals has increased dramatically in recent months. At Cadence Counsel and Lateral Link — where we have always placed a premium on diversity, including in our own ranks — we are working on a number of such searches.

What is driving this increased interest in D&I professionals? What should organizations look for when hiring a chief diversity officer? And how can they best ensure the success of the CDO in her new role?

Tune in as I discuss these and other questions with Monique Burt Williams, CEO of Cadence Counsel, in the inaugural installment of Cadence Corner:

Ed. note: This is the latest installment in a series of posts from Lateral Link’s team of expert contributors. This post is by David Lat, a Managing Director in the New York office, where he focuses on placing top associates, partners, and partner groups into preeminent law firms around the country.


Cadence Counsel is the in-house division of Lateral Link, one of the top-rated international legal recruiting firms. With over 14 offices worldwide, Lateral Link specializes in placing attorneys at the most prestigious law firms and companies in the world. Managed by former practicing attorneys from top law schools, Lateral Link has a tradition of hiring lawyers to execute the lateral leaps of practicing attorneys. Click here to find out more about us.

Coronavirus Crisis Chops Down Enhanced Damages For Copyright Infringer

(Image via Getty)

The COVID-19 pandemic has not only served as an underlying cause for litigating disputes, including those filed against insurers for failure to pay out on submitted claims, it is now acting as the foundation to diminish damages awarded to prevailing parties. The extent to which coronavirus can play a role in abating the gravity of a damages calculation recently played out with a federal judge situated in the Southern District of Florida.

The case was initiated by Zuffa, LLC, which does business as Ultimate Fighting Championship (UFC) and sought relief from a restaurant that allegedly aired a broadcast of the UFC fights on July 6, 2019, paying only a reduced pay-per-view price under the guise that the event was being displayed at a residential address. The complaint claimed that the restaurant knowingly exhibited the broadcast without authorization and for the purpose of commercial advantage by paying the reduced residential fee despite having a clear understanding that it was operating as a commercial entity with numerous individuals in attendance.

No defense was presented in the case and a clerk’s default was entered prior to the UFC moving for default judgment. The default judgment motion requested $40,000 in damages for unauthorized interception of the transmission, $40,000 in damages for copyright infringement, $612 in attorney’s fees and $800 in costs. The majority of the monies requested for unauthorized interception and copyright infringement was made up of enhanced damages.

The court recognized that the violations of the Communications Act and of plaintiff’s copyright were willful, which allowed it to award enhanced damages given the facts of the case. However, the only factor that the court used to assess enhanced damages was the determination that the defendant advertised for the event by posting about the broadcast on social media.

The court then acknowledged that while enhanced damages should generally be substantial enough to discourage future lawless conduct, it should not be so severe so as to seriously impair the viability of the defendant’s business. That is where the conversation turned to the coronavirus pandemic, with a ruling that could be cited to by others in an effort to reduce enhanced damages as long as the pandemic remains of grave concern across the United States and particularly in South Florida.

“It is impossible to ignore the impact of the Covid-19 pandemic in applying this standard,” the court stated in its ruling. “Restaurants remain in significant economic distress, with restrictions on indoor dining capacity still in effect. An award that might otherwise amount to a strong deterrent could be catastrophic.”

Instead of awarding the plaintiff with its requested $60,000 in enhanced damages, the court awarded a mere $1,000 in that category of relief. That presents a major gap between the request and what was actually awarded by the court, and a majority of the blame for the delta could be placed squarely on COVID-19.


Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

Am Law 100 Firm Reverses Course On Salary Cuts Meant To Avoid Layoffs

(Image via Getty)

The coronavirus crisis has thrown the legal profession into upheaval, but for some firms, the time has come to readjust and reassess the austerity measures that were put into place to prepare for the coming storm. Earlier this week, we reported on two firms — Ogletree and Baker Botts — that were prepared to offer bonuses to associates for their outstanding performance during these hard times (and Baker Botts even did a partial about face on its salary cuts).

We now have news that yet another Biglaw firm is reversing course on its salary cuts, and everyone at the firm is sure to be thrilled.

Earlier this week, Cadwalader announced that the firm would be returing to its original pay scale. If you recall, the firm was one of the first to make major salary cuts, slashing associate compensation by 25 percent and staff compensation by 10 percent. On top of those cuts, partners and senior counsel made the most “significant financial sacrifice” of all, forgoing distributions entirely. Starting tomorrow, everyone at the firm will see their prior salaries restored.

In a firmwide letter, managing partner Patrick Quinn said that although some practices were faltering, others have been “even busier than we projected before we knew about the virus.” Here’s some additional detail from Law360:

“We will continue to monitor the impact of the crisis, and make decisions in the weeks and months to come that are in the best interests of our firm, our people and our clients,” Quinn said in the letter. “As we said back in March, we will get through this together, caring about each other and taking care of each other.” …

When asked Wednesday morning if any layoffs have occurred, Quinn said they have not. The firm did offer voluntary retirement packages to legal secretaries though, he noted.

“Our goal continues to be to preserve jobs and preserve our ability to take advantage of the recovery,” he said.

Voluntary buyouts are certainly better than layoffs. Things are looking up for Cadwalader thanks to the proactive measures the firm took at the pandemic’s start.

Let’s hope more firms are able to roll back COVID-19 austerity measures — and soon.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

Cadwalader, Baker Botts Walk Back Coronavirus Pay Cuts [Law360]

Earlier: Am Law 100 Firm Cuts Partner Pay Entirely, Reduces Associate Salaries By 25 Percent


Staci ZaretskyStaci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Federalist Society Founder Thinks Trump Should Be Impeached (Now That He’s Confirmed All Those Judges)

(Photo by Drew Angerer/Getty Images)

If there was any doubt that true dyed-in-the-wool conservatives see Donald Trump merely as a useful idiot to pander to the rubes while they confirm judges, FedSoc co-founder Steven Calabresi is ready to set the record straight. As we hit the home stretch before the November election, the Northwestern professor feels that now he thinks Trump’s gone too far and needs to be removed from office.

A courageous stance… three and a half years too late.

The impetus for Calabresi’s last-minute conversion on Trumpism is Trump’s recent tweet suggesting that the election needs to be delayed due to the ongoing pandemic… while simultaneously arguing that public schools must reopen because everything’s safe.

Steven Calabresi, a Northwestern University law professor who has offered broad defenses of the President in recent years, wrote, “I am frankly appalled by the president’s recent tweet seeking to postpone the November election. Until recently, I had taken as political hyperbole the Democrats’ assertion that President Trump is a fascist.”

“But this latest tweet is fascistic and is itself grounds for the president’s immediate impeachment again by the House of Representatives and his removal from office by the Senate,” he said.

We come once again to the same crossroads we always approach with prominent conservatives: is Calabresi just spectacularly stupid or cravenly cynical? He thought it was “hyperbole” to suggest Trump was fascist as he defied court orders, defended white supremacists, and unveils plans to send stormtroopers into American cities, but now that he’s suggesting putting off the election, Calabresi is starting to see what those folks might be talking about!

The most charitable view of Calabresi’s new worldview is that there’s something about attacking the sanctity of the democratic process that’s uniquely offensive to his conservative values. But even that is pig slop if you spend half a second thinking about it. Calabresi hasn’t said anything about Trump’s relentless falsehoods about “widespread voter fraud” and, indeed, has implied that it exists in the past despite a complete lack of evidence. So after years of contributing to the erosion of public faith in democratic elections, Calabresi has decided that this Tweet is where he sees a threat to democracy.

We tend to believe Calabresi is not a moron. As America hopscotched toward authoritarianism for the last three years, Calabresi was there trying to kill the inquiry into White House efforts to obstruct justice by suggesting that Robert Mueller’s mere appointment was unconstitutional and making up new laws from whole-cloth to declare the impeachment process illegal. Steven Calabresi has carried so much water for this administration’s efforts to undermine constitutional principles that he’s going to have permanent back pain.

But that was when Trump had better polling. Now, with double-digit deficits in key states, Calabresi sees the runaway train of barely competent 30-something judges careening toward to abyss. He’s gotten all he’s likely to get out of Trump and it’s time to get off while the getting’s good.

The pivot has begun. Soon we’ll hear how Josh Hawley would never try to delay an election! Or whichever avatar of white grievance they choose to parasitically latch onto next. Gather round, kids, because the Federalist Society rehabilitation project is now underway, distancing itself from Trump and setting themselves up once again as the conservative “intelligentsia” that deserves the trust of mainstream institutions. Trust they’re happy to deploy in four years when they tell sit down with NBC News to explain why Tom Cotton has deep respect for constitutional norms. Anyone who thinks otherwise is engaged in political hyperbole.

And based on the fawning headlines over Calabresi’s statement, it looks like this process is proceeding apace.

Co-founder of influential conservative group: Trump’s tweet floating election delay is grounds for impeachment


HeadshotJoe 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.

COVID Should Prompt Us To Get Rid Of New York’s Bar Exam Forever

The COVID-19 pandemic has helped reveal just how outdated and discriminatory the New York bar exam is, and why we should strongly consider doing away with it. New York must take this opportunity to permit diploma privilege for law grads, not just for the class of 2020, but into the future.

Over several weeks, in response to the pandemic, the New York Board of Law Examiners (BOLE) announced a series of restrictions to the 2020 bar exam. These culminated in the ultimate decision to cancel the in-person exam in favor of an online-only version, and the issuance of an emergency rule allowing graduates to work in supervised environments until they can take the exam.

But the Board’s attempts to preserve the in-person bar exam are dramatically misaligned with the reality that law grads are living. It is not humane to ask people to invest the time, focus, and money required to prepare for the bar in this time of global trauma and social upheaval. It is not safe, secure, or equitable to require an online-only test. It is not realistic to tell people they can work temporarily under supervision — assuming employers will hire them — but will still have to find the time to study for a future exam.

It is not worth saving the bar exam.

Like other high-stakes standardized tests, the bar exam has its roots in racism and has a discriminatory impact today. Like other tests, it fails to appropriately accommodate takers with disabilities. Like other tests, it does not measure skills or understanding, rewarding law grads instead for having the economic freedom to prepare for it full time, and the ability to memorize information and perform under test conditions. Despite claims that it protects the consumer from unqualified lawyers, the bar exam actually protects attorneys’ bottom lines by limiting the supply of lawyers and inflating the price of both becoming and hiring a lawyer.

In an April 2020 report, the New York Bar Association recommended “consideration of a New York Law Certification program that would permit people to forego the Bar exam entirely,” because it found the New York law portion of the online exam was vulnerable to cheating and failed to measure candidates’ fundamental lawyering skills. Now is the time to give real consideration to this recommendation.

We should be suspicious of the original motivation for the bar exam and outraged at its discriminatory impact. The exam was conceived, like many professional licensing schemes, to keep immigrants and people of color out of the legal profession and to protect established lawyers from economic competition. Nationally, eight percent of white test-takers fail the bar on their first attempt but as many as 40 percent of Black test-takers do.

There are multiple reasons for this including, as one recent paper put it, the fact that “individuals who score higher on the Multistate Bar examination are often examinees who possess comparable opinions as the drafter of the multiple-choice question, which, similar to the LSAT, leaves applicants with minority viewpoints at a disadvantage before the exam even begins.”

Then there are the economic disadvantages, which are heavily tied to race. Sixty-one percent of Black law students graduate with more than $100,000 in student debt, while only 40 percent of white graduates do the same. With the financial pressure of paying off loans, it makes sense that many Black students don’t pay for expensive test prep courses.

In its own review of 2005 exam results, the New York BOLE found that more than 86 percent of white test-takers passed, while only 69 percent and 54 percent of Hispanic and Black test-takers did, respectively. The same study noted “Black/African American candidates tend to graduate from law schools that are more selective than the typical law school” so the disparity cannot be blamed on the quality of legal education or low LSAT scores, as some have claimed.

Those concerned that doing away with the exam will flood New York with unqualified attorneys echo the forefathers of the bar, who spoke of a “horde” of “unworthy” candidates attempting to become lawyers.

Truthfully, there are many ways the state works to protect consumers from unqualified lawyers: requiring graduation from an accredited law school, a character and fitness screening, continuing legal education including in legal ethics, maintaining bar admission, and administering discipline for lawyers who fall short of meeting professional obligations. Indeed, every New York lawyer who has been subject to discipline for misconduct or ethical violations at some point passed the bar exam.

There are widespread calls for the Board to extend diploma privilege to 2020 graduates. For this class that has survived so much, it is the only fair and humane option.

But we must not stop with a temporary solution. The pandemic is forcing us to come to terms with inequities across society, and once we’ve acknowledged those problems, we can’t go back. It’s time to acknowledge that the bar exam is racially and economically unjust, and that it fails to measure an attorney’s real-world abilities. It’s time to develop a better way to ensure quality, diversity, and equity in New York’s legal profession.

Diploma privilege, currently used in Wisconsin, is a meaningful and sensible alternative to a standardized bar exam. It will ease some of the financial and emotional burden on law grads and is a step towards more diversity in the legal profession. It rightfully focuses on a student’s performance during three years of intensive legal study, internships, and clinical practice rather than on three months of memorization.

It is time for New York to adopt diploma privilege.


Johanna Miller is Director of the Education Policy Center at the NYCLU and Co-Professor of the Civil Rights Clinic at NYU School of Law.