My thoughts and prayers go out to the (tens of) thousands of students who are slated to take remote bar exams in several states (including large states like California, New York, and Illinois) a little over two weeks from now, on October 5 and 6. Many people (myself included) are worried about technological glitches that might plague such a massive online undertaking, but I will be hoping for the best.
When the dust settles on the summer/fall 2020 bar exam cycle, many commentators and analysts will likely want to revisit why we have (indeed whether we need) bar exams for legal licensure, and (assuming we retain bar exams) what such exams should look like going forward. Diploma Privilege: Two Observations
Some folks in various states this summer advocated (albeit mostly unsuccessfully) for “diploma privilege,” an idea that means different things to different people but which, as a general matter, refers to an approach that allows law school graduates, under certain circumstances and subject to certain limitations, to be licensed without having to take and pass a bar exam. These folks may think the diploma-privilege idea makes sense not just in COVID-19 times, but in normal times too. That is a big topic for sure, and one I won’t have space to take up thoroughly today. I will, however, make just two, quick observations.
First, the way some states have implemented diploma privilege—by limiting it to or favoring graduates of in-state law schools—is, as I’ve written , blatantly unconstitutional. (Readers interested in this should look carefully at the earlier Verdict essay linked in the previous sentence.)
Second, because diploma privilege hasn’t been used extensively throughout the country in the modern era (during which time the number of law schools has expanded and the entrance requirements and attrition rates of law schools have fluctuated quite a bit), there is a lack of empirical data on the question whether the quality of lawyering would be affected by extending diploma privilege to graduates of all ABA-approved law schools in 2020. For example, resort to the experience of the state of Wisconsin is of limited value since […]