I don’t expect New York and California to do the right thing. My home state and the other one across the country are deeply invested in their bar exams and the notion that those bar exams will somehow magically produce an elite group of trained lawyers able to practice law in those states. Taking and passing their test means competence, even as, for reasons lost upon me, their bar passage rates fluctuate as if some great monopolist were setting price. Sometimes in relation to one another.
But in Texas, I expect more (not from burgers — Whataburgers are terrible). A letter, signed by all the deans of the Texas law schools, listed three options for a better bar experience. And by better bar experience, I mean one that does not put students at risk for death. The deans suggested a) an online bar exam; b) diploma privilege, or c) an apprenticeship system. The deans even offered the Texas Bar their collective school experience in terms of online test taking and apprenticeships. Imagine the safety! Imagine the data!
I think we’ve already seen what experiences await the online bar exam takers. So I’m not a big fan of that one. At least until exam software learns a bit more about security (more on this in a bit). I have to think more about apprenticeships, but I’m concerned about the lack of uniformity of experience. Will bringing coffee to the senior partner count?
So, that leaves me with the inescapable conclusion that Texas ought to establish diploma privilege.
I’m at a loss as to the argument against diploma privilege, at least in Texas. As the deans lay out, it is quite likely that a repeat taker will pass the bar exam. “While it is true that not every student passes the Texas Bar Exam on the first attempt, within two years, on average more than 9 out of 10 recent graduates from our ten law schools successfully pass the Texas Bar Exam. (Please see ABA Data, attached.) An even higher percentage pass the Texas Bar Exam on a later attempt.” In other words, to the extent that the Bar creates an entry barrier, it is a temporal and impermanent one. It would be curious as to what argument suggests that more studying for a one-time test would make one more competent to practice law than the prior year. The Texas bar really doesn’t keep people out over time.
If that’s the case, what’s the benefit to the public? Actually, that might be the wrong question to ask. The right question to ask might be whether there is a less restrictive alternative that either maintains the same level of benefit to the public or increases it. In other words, there are costs to the bar exam, such as bar prep payments, that may ALSO impact the overall public. To the extent that students pass the bar and are in more dire circumstances, are they more inclined to engage in misconduct? It is possible that the bar exam itself create more costs than benefits to the public overall than alternatives like diploma privilege. To the extent we cling to the near-religious belief that the bar is a test of competence, the less likely we will be to discover the science that tells us from where incompetence comes.
We don’t have that natural experiment just yet. It’s not like Wisconsin — heart of diploma privilege — has a rash of professional misconduct. But that’s not the same as practicing in Dallas (“Texas’ California”) or Houston (“Texas’ New York”). (Sorry my friends in Austin, I couldn’t figure out anything for you here. D.C. maybe? That’s pretty weird).
Professors Robert Anderson and Derek Muller in their article “The High Cost of Lowering the Bar” have predicted that lowering the California bar exam required passing score will lead to an increase in California malpractice, based upon examining disciplined lawyers and their alma mater’s scores. This speaks to the need for more data, and more natural experiments for states bold enough to recognize their own BLE fallibility. But, with a few exceptions such as Utah, the state bars seem reluctant to engage in such a voyage of discovery. Which is odd given that their purpose is to assure the protection of the public, right?
But Anderson and Muller also state that, at least with respect to California, “[t]here is virtually no discipline in the first ten years of practice, then the rate of discipline increases in a roughly linear fashion.” If that’s true, what changes over the course of the later years? Shouldn’t we perhaps focus on the injury to the public that occurs then? And, given that most people pass the bar eventually in Texas, to what extent can the bar be said to have any effect other than delaying the inevitable?
Compare this potentially small benefit of the bar exam with the costs. Students typically pay for bar exam prep courses. They are potentially unproductive or engaged in reduced productivity while studying for the bar. To the extent they are unemployed, they may delay job searches until they take the bar. Bar loans! Those are costs regardless of whether we live in a COVID-19 world or not. And they are huge. (By the way, those bar loans are likely increasing during COVID-19 time).
But add to that some serious COVID-19 concerns, and those costs skyrocket. The July bar exam was canceled, leaving applicants to spend more time with the costs I’ve just mentioned. And now, in Texas, the applicants get to pick their poison.
One Texas option is to show up at a hotel (“such a lovely place”) to take the bar exam in person in September. Given the most recent Texas tampon fiasco, one would hope a great deal of thought would be put into the requirements. But regardless of the security requirements, the expenditures seem extreme to the extent it appears that the bar exam does very little to prevent entry over time. And there is tremendous risk to the exam take no matter how well COVID-19 protections are deployed. Hint: From what we’ve seen thus far, they aren’t deployed well or consistently.
Texas bar takers also have the option of an online bar exam in October. We’ve already seen the joys the online bar exam brings, particularly to those who are not Internet secure (“AT&T users”). In a matter of a week or so, we’ve had online bar exam issues, LSAT data lost, and people hacking into Twitter. That’s pretty serious stuff, even if we ignore some of the draconian requirements some online test takers have had to suffer. (“Don’t get up! Don’t move your head! Don’t rub your nose! Are you thinking about rubbing your nose because we told you not to? Don’t! And don’t expect your phone back, either!”)
You might remind me, dear Texas, that in 2018 your task force on the Texas bar exam thought about diploma privilege before and rejected it! True, but the record upon which you contemplated it was so thin that if it were prosciutto, I’d be salivating. And I get it. There’s not a lot of data out there. But, the report recognizes that, and almost begs for that information. The report states that “[t]he Task Force does, however, think there might be value in experimentation with alternative approaches to licensure.” And it’s a different world now, isn’t it?
So, why are you doing this, Texas? I mean, apart from the fact that the National Conference of Bar Examiners, bar prep courses, and members of the bar who randomly shout “we’ve always done it this way!” want you to. You don’t have to do it, Texas. Thousands of students across the country have risked their lives for the false god of the bar exam. They have had to test for COVID-19 after the bar exam to reunite with loved ones. The fact that thousands have endured doesn’t mean that more have to take the risk. Just like there are way better burgers than Whataburger, there are way better means of assuring the same outcome here. And we can learn in the process using the data you help obtain.
LawProfBlawg is an anonymous professor at a top 100 law school. He hates the Bar Exam. His thoughts are his and his alone and do not represent Above the Law or his University. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com.