In a rational world, states would cancel the July administration of the bar exam so applicants could comply with basic public health advice and avoid a large, extended gathering in an enclosed space. The more committed states are to the keeping contact down now, the fewer cases we’ll have later.
Arkansas has taken a different lesson. Piggybacking off of research designed to warn Arkansans that the disease will likely spike if they don’t take steps today to halt the spread, the Arkansas bar examiners took exactly the opposite lesson and decided, “Well, we need to have the July bar exam, because things could be way worse later!”
The Board recognizes and is concerned that racial minorities are at a greater risk of COVID19 infection, hospitalization or death than white Arkansans. Health experts, however, seem to agree that the number of COVID19 cases will continue to escalate dramatically through October. In a University of Arkansas for Medical Sciences report dated June 12, 2020 and entitled “Weekly COVID-19 Trends in Arkansas,” the prediction for the number of positive cases for the end of June 2020 was 15,000. As of Monday, June 29, 2020, Arkansas’ number of positive cases was even higher, reaching 20,257.
UAMS predicts that the positive cases will peak in late September or early October. The Mean-Case Estimate is 133,056 and the Worst-Case Estimate is 251,834. Based on the UAMS estimates, the Board is of the opinion that it would be far more dangerous for anyone to be in a large group in late September or early October than July.
“To avoid the risk of disease spread, we must run our superspreader event early!” is a sobering message from the people supposedly protecting the public from stupid lawyers. Also, the letter was framed by a request from the ACLU to consider the racial dimensions of this decision, which the letter acknowledged before promptly waving the issue away with a vague “If there are additional ideas that you or others may have to help address these issues, we are more than interested in hearing them” request? It seems as if the only additional idea worth mentioning would be “not running the stupid test” and yet it seems to be the only one they aren’t considering right now.
In the exceptionally limited defense of the bar examiners, the bar exam will not be the only reason the state lurches toward catastrophe. Daily new cases are on the rise right now. Without the July bar exam there will still be a massive outbreak that only grows over time. But the argument “well, it could be worse” isn’t particularly compelling. If September and October are going to be deadly, you can ALSO cancel those in-person exams. There’s nothing but a noxious mix of laziness and stubbornness making this an “either-or” equation.
It also completely misses the point. It’s the systematic failure of anyone in Arkansas to take the lead that’s putting people in this situation. Just because the governor is too committed to passing the political buck to take direct action doesn’t mean everyone should just shrug their shoulders and accept their fate. Half the state may refuse to wear masks when they march on Little Rock to demand more Confederate statues, but that doesn’t mean THE BAR EXAM has to run its own superspreader event. If everyone just did the right things that they could control it would be better than doing nothing.
This is the mentality that heard about toilet paper shortages and said, “Well then everyone should rush to the store to buy more toilet paper.” And it’s holding the legal profession hostage.
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.