California State Bar working group recommends cutting bar exam topics from 13 to 8

There’s an interesting draft report out from the California Attorney Practice Analysis Working Group, appointed to examine some recommendations about the content of the bar exam. Two recommendations (about the scope of “entry-level practice”; and relevant competencies, some of which might need to be reassessed in terms of the existing bar exam testing format) are worth a read. But more interesting to me was the call to reduce the number of legal topics tested on the bar exam. The goals included de-emphasizing memorization, and offering a core set of minimum competencies.

Seven existing topics—all of which are tested on the MBE—are recommended to remain: Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts. The eighth is a new topics, Administrative Law and Procedure. Topics to be removed are Business Associations, Community Property, Remedies, Trusts, and Wills and Succession. Professional Responsibility would also be removed, as it’s duplicative of the MPRE, mandated in law school, and a new mandatory training for entry-level attorneys.

It’s unclear where a working group proposal like this will lead, but other reforms of longstanding practices, like cutting the bar exam from three days to two, have occurred in California recently. We’ll see what comes of this proposal.

Other agenda items of note include expediting the scoring process so results come out earlier; improving grading and cheating concerns; and long-term considerations about the UBE and the cut score.

February 2020 MBE bar scores fall to all-time record low in test history

What had been a record low in February 2018 after a record low in February 2017, became a new record low in February 2020. The mean score was 132.6, down from 134.0 last year and edging out the February 2018 low of 132.8. (That’s off from the recent 2011 high of 138.6.) We would expect bar exam passing rates to drop in most jurisdictions.

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For perspective, California's overall "cut score" is 144, Virginia's 140, Texas's 135, and New York's 133.

Given how small the February pool is in relation to the July pool, it's hard to draw too many conclusions from the February test-taker pool. The February cohort is historically much weaker than the July cohort, in part because it includes so many who failed in July and retook in February. The NCBE reports that “more than two-thirds” of test-takers were repeaters.

Schools must ask themselves why bar rates remain persistently low and bar exam scores remain low. Declining entering class quality and ineffective bar preparation programs may be among the challenges.

The decline in scores comes at a particularly poor time. Some are advocating for “diploma privilege” for the Class of 2020 in light of bar exam postponements given the coronavirus pandemic. Bar licensing authorities will assuredly be skeptical of such proposals as they look at all-time low scores like these.

The fundamental weakness of flabby balancing tests in federal election law litigation

Professor Rick Hasen has some thoughts on RNC v. DNC at his blog. (I looked at the case from the perspective of the Purcell principle but not much else.) One passage struck me: “Not only does the Court’s opinion show a nonchalance about the importance of voting rights in the most dire circumstances. It shows that the Court majority did not look for a way to build a bridge for a unanimous compromise opinion.”

To one larger point that probably merits much more attention from me in some more formal way…. One problem, in my view, with this framing is that this case was brought under the flabby Anderson balancing test, an ad hoc totality-of-the-circumstances examination of burdens and interests in the generic language of the "freedom of association." (Now, assuredly others will point out the Court's approach in Shelby County, in Rucho, and so on as indicative of greater "voting rights" concerns, but my claim here is narrower and relates to this particular cause of action.)

What started in the 1960s as a way to prevent minor party candidates from ballot exclusion has become a last-best-hope kind of claim for litigants tossing a claim into federal court. It's the kind of test where Judge Mark Walker in Florida would find that it's a "severe" burden on voting rights if the Republican candidate is listed first on the ballot when a Republican is governor; and where Justice John Paul Stevens would find a photo identification law in Indiana to be a "limited" burden on voters in a record with "no evidence of any" in-person voter "fraud actually occurring in Indiana at any time in its history."

It's not "voting rights" generally; it's, I think, about a particularly weak constitutional test that serves as an emergency catch-all for any election law-related claim that one wants to bring into federal court. Maybe I'm just repeating a point that Professor Guy-Uriel Charles has already made, but litigants' hopes should not ride on a federal court coming to the rescue under this doctrine. The Court may be "nonchalant," but, I think, this doctrine in particular is unusually weak as a vehicle for protecting "voting rights" under the Constitution.

It’s also consistent with the views of Dean Vik Amar and Professor Jason Mazzone looking at this very case. “Applying a very open-ended balancing test that the Supreme Court has used in some but not all cases alleging violations of the federal constitutional right to vote” (emphasis added), they find that the district court’s reasoning was weak.

This brings me to a recent Sixth Circuit decision in Daunt v. Benson regarding Michigan’s recently-enacted ballot initiative establishing a new “independent redistricting commission.” Judge Chad Readler concurred in the judgment. He expressed concern with the majority’s evaluation under the Anderson test: “Following the Supreme Court's lead, we have thus utilized that framework in cases where it is alleged that a state election law burdens voting, from ballot-access laws, to early-voting regulations, to prohibitions on party-line voting.” He continued:

But Michigan's redistricting initiative does not regulate the mechanics of an election. Far from it, in fact. It simply sets the qualifications for Michigan residents who, if they satisfy certain eligibility criteria and are selected by the Secretary of State, will serve as commissioners who, working together as a commission, will draw electoral districts for the State, districts in which as-yet-unknown candidates will seek legislative office in a general election, following party primaries. In other words, the only sense that an election comes into play is the one that will ensue once these many tasks are completed. And neither the commissioners nor the commission, it bears noting, will have an impact or influence on how that election is administered. As the majority opinion thus seemingly acknowledges, it is quite a jurisprudential leap to view this case through Anderson-Burdick's election-focused lens.

Judge Readler emphasizes, “The temptation to overindulge in the Anderson-Burdick test has not gone unnoticed.” Another Sixth Circuit panel recently noted that there can be “legal gymnastics” applying Anderson to some cases. Judge Readler worries, “My concern is more than conceptual. For Anderson-Burdick is a dangerous tool. In sensitive policy-oriented cases, it affords far too much discretion to judges in resolving the dispute before them. Anderson-Burdick relies on a sliding scale to weigh the burden a law imposes against the corresponding state interests in imposing the law. . . . But the test otherwise does little to define the key concepts a court must balance, including when a burden becomes ‘severe.’” He continues, “Absent stricter rules and guidelines for courts to apply, Anderson-Burdick leaves much to a judge's subjective determination.”

Judge Readler’s opinion is worth reading in its entirety, because it relies on a number of other sources I omit here. But it’s emphasize some stirring in the lower courts of the weakness of Anderson. It’s a flabby test, but it’s the most common kind of claim one can raise in federal court on an election law challenge. It gives federal courts generous discretion in all election law cases, not just those implicating race (like the Voting Rights Act or the Fifteenth Amendment), and not just those concerning the enumerated powers of the federal government like, say, the Elections Clause. It allows wholesale review of all state election-related decisions.

So I don’t know that the federal courts are necessarily “nonchalant” about voting rights, at least when it comes to Anderson-style claims. Instead, it’s that federal courts are, I think, not the best (and sometimes, not even the right) place to raise all election law-related concerns. And that’s a weakness of the existing legal regime. Perhaps we want more robust federal statutes within Congress’s purview, or more express guidance from state legislatures. But the federal courts are simply not going to provide the robust judicial review that litigants may seek because the legal framework isn’t designed for it.

Heat and light over the Utah bar diploma privilege proposal

I wrote about Utah’s proposal to allow a modified version of “diploma privilege” for graduates of chunk of law schools. I don’t particularly support or oppose the proposal, but I pointed out some places where it makes sense and others where it doesn’t. But the reaction to it seems quite strong—oddly opposed in a couple of dimensions. But the opposition, I think, is too often more heat than light.

Some critique the plan, calling the exception too narrow. Take this statement from commentary in California:

“We vehemently disagree with the Utah proposal as it only benefits a small percentage” of graduating third-year law students, said Escontrias.

The Utah rule would only allow the diploma privilege to those who graduated between May 1, 2019, and June 30, 2020, and only from American Bar Association-accredited law schools “that had a first-time taker bar examination passage rate in 2019 of 86%" or higher.

As my post mentioned, about 1/3 of all law schools qualify their graduates to earn diploma privilege in Utah in 2020 (if the proposal is enacted). Additionally, by my calculations, that’s about 42% of graduating law students. One is hard-pressed to call that “a small percentage.” Finally, by my (rough!) reckoning, it would extend to at least 90% of those who were registered for the Utah bar exam this July, if not more—hardly a “small percentage” (although, of course, it’s not extended to any students who registered for bar exams in the other 49 states or Puerto Rico). Despite the rule that “only” extends to certain populations, then, this rule is beneficial to the vast majority of prospective Utah attorneys graduating from law school this year.

Then again, some call the exception too broad:

I think this is the [Utah] Supreme Court’s way of making it way to[o] easy to become a licensed attorney in Utah, which goes against everything the Utah State Bar has stood for,” said Emy Cordano of COR LAW.

…

“I see no reason why they should get a free pass,” Cordano added. “The bar exam is the supreme test of whether or not you are going to make it as a lawyer in the courtroom.”

Remarks like these (and there are others) sound much more like hazing. For instance, in an extraordinary circumstance where the bar exam will be postponed, it’s hard to call accommodations given that practice as making it “too easy”—they are, after all, admittedly, accommodations, not standard rules. Additionally, it’s not “easy” or a “free pass”—students still have to graduate law school, and still must complete supervised practice, and still must pass the MPRE and the character and fitness review. It’s a pass on one component of access to the practice of law.

And it’s hardly the “supreme test” of whether you “are going to make it” “in the courtroom.” (Note the litigation bias—lots of attorneys don’t spend their time in the courtroom.) That, I think, is left to clients to determine after one has practiced. The bar exam likely keeps out some attorneys who are at a higher likelihood of engaging in misconduct. But it’s not some guarantee of quality.

All in all, then, there are some increasingly heated disputes. I do hope, however, that bar licensing authorities, including Utah, look closely at the present circumstances, tailor solutions for those present circumstances, and consider the more long-term solutions appropriately in the years to come.

Can states enter into interstate compacts to coordinate reopening society as the coronavirus outbreak wanes?

The lead paragraph from this Associated Press story sets up the issue:

Governors in the Northeast and along the West Coast on Monday announced separate state compacts to coordinate one of their biggest challenges in the weeks to come: How to begin reopening society amid the coronavirus pandemic.

Compare that with the Compact Clause of the United States Constitution:

No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State, or with a foreign Power . . . .

Importantly I don’t think the story accurately conveys what these states are doing—at least, not yet. And how states go about their business affects how we think about whether the Compact Clause is implicated.

Let’s see the West Coast “agreement,” as articulated with key phrases:

COVID-19 has preyed upon our interconnectedness. In the coming weeks, the West Coast will flip the script on COVID-19 – with our states acting in close coordination and collaboration to ensure the virus can never spread wildly in our communities.

We are announcing that California, Oregon and Washington have agreed to work together on a shared approach for reopening our economies – one that identifies clear indicators for communities to restart public life and business. 

While each state is building a state-specific plan, our states have agreed to the following principles as we build out a West Coast framework . . .

In the coming days the governors, their staff and health officials will continue conversations about this regional pact to recovery.

This is a “shared approach,” but one with “state-specific” plans guided by “shared principles.” At the end, it’s described as a “regional pact.”

Here’s the Northeast “multi-state council”:

Recognizing that their states have one integrated regional economy, New York Governor Andrew M. Cuomo, New Jersey Governor Phil Murphy, Connecticut Governor Ned Lamont, Pennsylvania Governor Tom Wolf, Delaware Governor John Carney and Rhode Island Governor Gina Raimondo today announced the creation of a multi-state council to restore the economy and get people back to work. This announcement builds on the states' ongoing regional approach to combatting the COVID-19 pandemic. 

The coordinating group - comprised of one health expert, one economic development expert and the respective Chief of Staff from each state -- will work together to develop a fully integrated regional framework to gradually lift the states' stay at home orders while minimizing the risk of increased spread of the virus.

Again, the emphasis is consulting together and an agreement to work with one another in a shared framework.

UPDATE 4/16: Here’s a new plan from the Midwest:

Today, we are announcing that Michigan, Ohio, Wisconsin, Minnesota, Illinois, Indiana, and Kentucky will work in close coordination to reopen our economies in a way that prioritizes our workers’ health.

…

Phasing in sectors of our economy will be most effective when we work together as a region. This doesn’t mean our economy will reopen all at once, or that every state will take the same steps at the same time. But close coordination will ensure we get this right.

Note that here the states emphasize that states may not act in lock-step and that regions may respond differently.

While the Associated Press piece (and other commentary) styles these as “interstate compacts,” it’s not clear they even meet that standard—at least, as understood from a legal use of the term “interstate compacts.” The Supreme Court has (I think, rightly) recognized that a “compact” turns on, say, some sort of consideration, including “mutual declarations [that may be] reasonably treated as made upon mutual considerations,” or some sort of “reciprocity.” That is, coordinated behavior or activity is not a “compact,” if there’s nothing binding on the states that are a part of it. If it is just a good-will gesture, unilateral actions that states may withdraw from at any time, it’s not a “compact.” And that means the Compact Clause is not implicated.

That’s why these should not be described (or, at least, not yet described!) as “interstate compacts.” Indeed, the West Coast language that refers to it as a “regional pact” is an overstatement. (I also think there’s not much difference between “agreement” and “compact”—at least, for these purposes there’s not a distinction, which likely turns more on the subject matter than the enforceability of it; and the Supreme Court has—but, probably wrongly—conflated the terms.)

But suppose these states do advance a framework that requires some obligations on their parts, some reciprocity, some coordinated activity that the other states have a legal right to enforce.

In my view, from an original understanding of the Constitution, such an agreement would need the consent of Congress.

But, even then, the Supreme Court has narrowed the kinds of compacts that require congressional consent. In 1893, in Virginia v. Tennessee, the court had a broader view:

The terms "agreement" or "compact" taken by themselves are sufficiently comprehensive to embrace all forms of stipulation, written or verbal, and relating to all kinds of subjects; to those to which the United States can have no possible objection or have any interest in interfering with, as well as to those which may tend to increase and build up the political influence of the contracting States, so as to encroach upon or impair the supremacy of the United States or interfere with their rightful management of particular subjects placed under their entire control.

By 1978, in U.S. Steel Corp. v. Multistate Tax Commission, the Court focused on whether any shift in political power exists:

But the test is whether the Compact enhances state power quoad the National Government. This pact does not purport to authorize the member States to exercise any powers they could not exercise in its absence.

The same focus was in place in 1985, in Northeast Bancorp, Inc. v. Board of Governors of the Federal Reserve System:

We do not see how the statutes in question either enhance the political power of the New England States at the expense of other States or have an "impact on our federal structure."

A unanimous Supreme Court decision in 2018, Texas v. New Mexico, provided the latest, small summary of the Compact Clause:

Our analysis begins with the Constitution. Its Compact Clause provides that “[n]o State shall, without the Consent of Congress, ... enter into any Agreement or Compact with another State.” Art. I, § 10, cl. 3. Congress's approval serves to “prevent any compact or agreement between any two States, which might affect injuriously the interests of the others.” Florida v. Georgia (1855). It also ensures that the Legislature can “check any infringement of the rights of the national government.” 3 J. Story, Commentaries on the Constitution of the United States § 1397 (1833) (in subsequent editions, § 1403). So, for example, if a proposed interstate agreement might lead to friction with a foreign country or injure the interests of another region of our own, Congress may withhold its approval. But once Congress gives its consent, a compact between States—like any other federal statute—becomes the law of the land. Texas v. New Mexico (1983).

There’s pending litigation about whether California’s “cap and trade” agreement with Quebec flunks the Compact Clause and requires congressional consent. If a court looks at agreements that are sufficient enough to provide a financial inducement to remain in them, then perhaps the agreement rises to the level of a “compact.”

On the whole, however, I’m sympathetic to the argument that, at least as presently understood, the “regional councils” are not “agreements” or “compacts” for purposes of the Compact Clause—which means that Congress does not need to consent to their existence. If they grow more powerful, they might then fall into the Supreme Court’s examination of whether they encroach on federal or state political power. If, for instance, the states band together to defy a constitutionally-permissible executive order or federal statute that might otherwise supersede state activity (although that seems like a more challenging hypothetical to develop in the first place), then it might be the kind of thing that would require congressional consent. Their actions might also adversely affect non-compacting states, and those non-compacting states might raise a claim against them. Or, perhaps federal courts would be willing to revisit precedent on this matter and require consent for any compacts that bind the signing states.

For now, however, it remains, I think, hypothetical. We’ll see what these agreements end up purporting to do and whether they start to rise to the level of more than coordinated activity.

UPDATE 4/17: This post has been lightly revised for clarity.

Some thoughts about "bar exam federalism"

Professor Dan Rodriguez has some important thoughts over at PrawfsBlawg about the “high costs” of “bar federalism.” I had a few thoughts I wanted to add to his helpful perspective.

While most states have moved toward a delayed bar exam with an expanded “limited practice” model for would-be bar exam test-takers, Utah recently announced a “diploma privilege” model, where graduates of certain ABA-accredited law schools who have 360 hours (or about 9, 40-hour weeks) of supervised practice by the end of the year will be eligible for admissions without a bar exam. (This model, of course, is subject to public comment and review.)

Utah chooses not to limit the diploma privilege to its two in-state law school, Utah and BYU, which was a concern I raised earlier in considering the cohorts to be affected by delays to the bar exam. Instead, it extends to graduates of any ABA-accredited school with a 2019 cumulative bar passage rate of 86%, which was the State of Utah’s bar pass rate.

Professor Rodriguez laments that this standard might disproportionately adversely affect California’s law schools, because California has an unusually high cut score for its bar examination. That is, an 86% threshold doesn’t make a lot of sense when we consider the varying bar exams around the country—and that Wisconsin has two law schools with diploma privilege that would essentially automatically qualify. While I think his concerns are legitimate, I look at it from the opposite perspective (in a way that negates any concerns), and descriptively overstated.

That is, while Professor Rodriguez laments that many schools are left out of Utah’s proposal, I see Utah’s proposal as exceedingly generous, increasing the diploma privilege opportunity from two in-state schools to around 65 schools, about 1/3 of all ABA-accredited schools! I suppose it all depends on one’s perspective.

Now, a bit of a slightly unfair narrative here, so please bear with me—even indulge me. Utah’s bar exam statistics disclose very little. But Utah knows how many out-of-state law school grads take its bar exam each year. My back of the envelope calculations suggest at least 2/3 of test-takers are in-state. For a bar that has around 225 first-time test-takers in July from ABA-accredited schools, we are dealing with a very small pool of out-of-state test-takers in the first place—say, around 75, if not fewer.

Furthermore, we know that “national” schools, typically “selective” or “elite” schools, place graduates nationally. So if the Utah bar is concerned about a rule that would keep graduates of, say, schools from New Haven or Cambridge from returning to Utah, it needs a rule that would allow them, too. But not a rule based on something crass like USNWR rankings.

I don’t think an 86% bar passage rates is a great way of measuring schools with a sufficient quantity of “good” graduates such that the Utah state bar feels comfortable admitting them without an exam, but it has its virtues. For instance, every school in the Top 20 of the USNWR rankings makes the cut. Outside the top 20, only a few in, say, the top 45 miss the cut—Emory, UC-Irvine, UC-Davis, and the University of Washington, to name most if not all. And this is also a notable cut line given that both BYU and Utah are in the top 45 of the latest USNWR rankings. Again, crass, but roughly accurate.

If one considers the selectivity of the law school as both a proxy of the number of out-of-state bar exam test-takers, and the quality of the graduates, then the standard gives the benefit to a batch of other schools that fall outside the top 45 but, on the whole, gives an advantage to the very schools most likely to send grads to Utah and to pass the bar at the highest rates.

But, Professor Rodriguez wonders about a disproportionate impact on California schools. Dean Paul Caron, for instance, emphasizes that just four of California’s 21 ABA-accredited law schools would qualify.

Focusing on USNWR top-45 schools, UC-Davis saw just 12 of its 148 test-takers take a non-California bar in 2019—scattered across 5 jurisdictions, with an out-of-state first-time pass rate of 75% (and not reflective of California’s high cut score, it should be noted). UC-Irvine had just 11 of its 135 test-takers take a non-California bar in 2019—scattered across 7 jurisdictions, with an out-of-state first-time pass rate of 91%. (These are much lower out-of-state figures than either Emory or Washington.)

This is to emphasize an earlier point—the most “elite” or “selective” schools disproportionately place students in out-of-state bar exams. And California’s schools—even California’s very good schools like Davis and Irvine—place very few out of state. (It’s also, I think, a testament to law student choices of California schools as a greater commitment to remaning in in California.) And, I think it’s fair to assume, very very few into Utah.

Indeed, the Utah state bar knows as of April 1, its cutoff for this rule, which test-takers from which schools enrolled for the state’s bar. I would guess that it’s a fraction of its prospective test-takers who don’t make the cut.

That’s disappointing for them to be sure. But, again, I look at it from the perspective of allowing about 63 law schools to secure diploma privilege where I’d expect two. And while some out-of-state would-be test-takers are out of luck, so are repeaters for this administration of the exam—some of whom assuredly would have passed.

There are probably better rules to come up with, as Professor Rodriguez emphasizes. But they would be more complicated and be targeted at an increasingly small cohort of students. That isn’t to diminish the deep disappointment recent graduates of those excluded law schools must feel as they face a delay to their practice of law, and the need to take a bar exam when others don’t. But it’s to say that I think the impact is not only a generous one to the vast majority of law school graduates who’d take the Utah bar, but aslo adversely affects very few. Perhaps the Utah bar will disclose those figures in the weeks ahead.

Should law students publicize embarrassing or distasteful activities of their classmates that arise in the classroom?

The answer, in my view, is an obvious and resounding “no.” But a recent piece in an online subsidiary of the Graham Holdings Company suggests otherwise.

That piece (which I won’t link to) describes the actions of a law student at a selective law school in a Zoom classroom setting of a law school class. Some of his classmates found his behavior embarrassing or distasteful, described by some as “provocative” or “inappropriate.” The online piece included a screen shot of the student in the classroom, presumably captured and shared by a fellow classmate. Other classmates described this student's behavior and participation in other classes, editorializing their disapproval of his comments in other classes.

The students had enough self-awareness to speak anonymously, because their school “might punish them for revealing details of a class.”

In my view, this is not a close case. Students should not publicize the activities or comments about their fellow students in the classroom—even if they are embarrassing or distasteful.

First, while some comments or activities might be embarrassing or distasteful to some, they might not be to all. This then drives students to selectively capture and share embarrassing or distasteful remarks to a select audience to critique.

Granted, there is, I think, a distinction between activities in the classroom and comments in the classroom—the latter often being used to advance academic discourse. But this Graham Holdings piece made sure to include commentary about the student’s comments, too, with editorialized statements of disapproval.

Second, there are real questions about a student’s state of mind. What might be embarrassing or distasteful to some might simply be an accident, an oversight, or a mere lack of sensitivity. I can only think of the number of times I’ve used a word or phrase in the classroom intending no offense but adversely affecting some. Public shaming presumes culpability.

Third, there are particular concerns that arise in a virtual setting. Students inadvertently leave cameras or microphones on when engaging in any number of personal activities. Their cameras might capture the intimate contents of their bedroom. We should most strongly discourage publicizing what we perceive as embarrassing or distasteful activities in these circumstances.

Fourth, there’s a question of proper channels. If a student engages in threatening or harmful behavior, reports to the professor, the administration, and the police may be in order. If the activity is embarrassing or distasteful, a student ought to send an email or a text to the student in question with a remark along the lines of, “I don’t know if you know your camera is on, but it looks like you’re doing X, and it might not be the best thing to have on camera.”

Even assuming a student deliberately engages in provocative behavior, it’s hard for me to think of circumstances that would justify intruding upon the classroom to publicize it. Other students in the class may justifiably wonder if their activities—perhaps innocent, perhaps accidental, perhaps deliberate but in furtherance of academic discourage—would be later publicized for shaming. The slippery slope or the chilling effect is perhaps overused in legal circles. But I think it’s a justifiable concern here, where expectations of privacy in the classroom are particularly high.

Sadly, the salient feature for others in this encounter is one I deliberately haven’t mentioned until now. There is a politically-charged element to the activity, the commentary, and the reaction to the story. While that is assuredly the driving force behind the controversy at hand, I hope that the framing of my approach to this questions applies without regard to political valence. For others, the political valence is the justification or the excuse for the disclosure. For me, however, I can’t say that it is. Students simply shouldn’t publicize embarrassing or distasteful activities of their fellow students that arise in the classroom, even if they profoundly disagree on the politics.

Unsigned Supreme Court opinions and orders in short-fuse election law cases

Linda Greenhouse at the New York Times offers this criticism of the Supreme Court’s recent decision in Republican National Committee v. Democratic National Committee:

I wonder how Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh understand the word “ordinarily.” And I wonder why the opinion was issued per curiam — “by the court.” Did none of the five have the nerve to take ownership by signing his name?

In short-fuse election law cases before the Supreme Court, the Court routinely issues per curiam opinions, even with dissenting justices who identify themselves. Or it issues orders without reasoning without the names of individual justices who agreed with the order signed onto it, even if some may dissent (and even if some write dissenting opinions). To name a few:

• Purcell v. Gonzalez (2006): court of appeals order issued October 5, 2006, motion to reconsider denied October 9, 2006; per curiam opinion issued October 20, 2006; Justice Stevens, concurring

• Brunner v. Ohio Republican Party (2008): district court order entered October 9, 2008; application for a stay granted October 17, 2008 in per curiam opinion

• Husted v. Ohio State Conference of the NAACP (2014): application to stay filed September 25, 2014; motion to stay granted September 29, 2014; Justices Ginsburg, Breyer, Sotomayor, and Kagan would deny

• North Carolina v. League of Women Voters of North Carolina (2014): application to stay filed October 2, 2014; application granted October 8, 2014; Justice Ginsburg, with whom Justice Sotomayor joins, dissenting

• Frank v. Walker (2014): court of appeals order issued September 12, 2014; application to vacate granted October 9, 2014; Justice Alito, with whom Justices Scalia and Thomas join, dissenting

• Veasey v. Perry (2014): court of appeals order issued October 14, 2014; motion to stay denied October 18, 2014; Justice Ginsburg, with whom Justices Sotomayor and Kagan join, dissenting

• Northeast Ohio Coalition for the Homeless v. Husted (2016): application for stay October 25, 2016; denied October 31, 2016

• Arizona Secretary of State’s Office v. Feldman (2018): court of appeals injunction issued November 4, 2016; application for stay granted November 5, 2016

• Ohio Democratic Party v. Donald J. Trump for President, Inc. (2016): application to vacate stay November 6, 2016; denied November 7, 2016; statement of Justice Ginsburg

• Brakebill v. Jaeger (2018): court of appeals order issued September 24, 2018; motion to vacate the stay denied October 9, 2018; Justice Ginsburg, with whom Justice Kagan joins, dissenting

I’m sure others can find more, and I’m sure those who’ve clerked on the Supreme Court can offer more “inside baseball.” But in short-fuse election law litigation (and probably in all short-fuse litigation, to be frank!), the Court routinely issues orders without reasoning. Sometimes, it includes a short paragraph of reasoning. Occasionally, it includes a few pages of reasoning, like it did in RNC v. DNC. In all such cases with reasoning, however, it simply issues those decisions per curiam. (In cases without reasoning, it doesn’t identify who did or didn’t agree with the order. Some justices may dissent or choose not to support the order, but they may not be on record as doing so.)

This is true whether the decision is unanimous or if some justices—even if up to four justices—dissent from the Court’s decision.

I think that if this case were to reach the Supreme Court, the case was briefed on the merits, and the Supreme Court issued a full-length, reasoned decision, it would have an author identified. Rarely does the Court choose not to identify a particular author, but in those cases it seems much more deliberate (think Buckley v. Valeo or, also short-fuse but argued, Bush v. Gore).

In short-fuse election law cases, however, there’s nothing unusual with the decision to issue an order or an opinion related to an order without identifying the author.

UPDATE: Josh Blackman has similar thoughts here.

State bar licensing authorities converging on coronavirus trend: postpone bar, allow grads limited ability to practice in interim

The last few weeks of disruption arising from the coronavirus pandemic have yielded calls for state bar licensing authorities to consider what accommodations they should offer ahead of the schedule July 2020 administration of the bar exam. I’ve looked at some of these proposals here and here.

One of the more popular points of advocacy—and, it’s worth emphasizing, driven by law school faculty of ABA-accredited law schools, law school deans of ABA-accredited law schools and law students graduating from those institutions—is for “emergency diploma privilege.” (I’ve pointed out how this addresses only a slice of the bar exam-taking population here.) Sadly, this point of view has spiraled away from the emergency-oriented concerns into more broad-based (and, in some ways, timeless) critiques of the bar exam generally.

Diploma privilege would be a dramatic change, even if on an “emergency” basis. And, again, it only addresses a subset of the exam-taking population. So perhaps it’s no surprise to see state bar licensing authorities offering a two-step approach, an approach, I think, that will become the norm. It’s a model raised among New York law school deans (as a more modest measure to their larger proposal for diploma privilege!) and the American Bar Association, in addition to something states like Tennessee and Arizona are implementing.

First, the bar exam may be delayed—perhaps into September or October, perhaps into February of 2021.

Second, the state bar licensing authority offers more generous opportunities to engage in the limited supervised practice of law, until those would-be bar test-takers are able to take the first bar exam available.

In some ways, it simply extends the limited practice of law opportunities that already exist for recent law school graduates or those awaiting bar results. It allows the accommodation of in-state and out-of-state law school graduates; it allows it for JD and non-JD graduates; it even allows some accommodation for those from other jurisdictions who want to take that state’s bar and practice there (as the Tennessee order expressly contemplates). It does not, however, accommodate those who have previously failed the bar exam (e.g., deemed lacking minimum competence to practice in a previous administration of the bar exam).

The two-step proposal helps address the many cohorts who have an interest in the July 2020 bar exam. It does increase the inconvenience of recent graduates—they’ll likely take a bar exam while working or need to take time off from working to take the bar exam. Particularly if they study over the summer for a September test, only to find the September test further delayed and need to take it in February, it would be particularly frustrating.

That said, the two-step proposal is minimally disruptive to the status quo and allows recent graduates to quickly enter the working legal profession. And it’s minimally disruptive from the state bar perspective in that the bar exam—how every jurisdiction measures minimum competence (with all of the controversy that surrounds it, to be certain!)—will remain in place, simply at a later date. States have had little difficulty with limited practice status granted to recent graduates—extending that slightly is a natural solution.

I anticipate many more states will move in this direction, but time will tell if that changes—some jurisdictions might get more creative, the coronavirus might worsen, or other intervening events might change things.