Visualizing legal employment outcomes in Ohio in 2019

This is the second in a series of visualizations on legal employment outcomes for the Class of 2019. Following a post on outcomes in Pennsylvania, here is a visualization for legal employment outcomes of graduates of Ohio law schools for the Class of 2019. (More about the methodology is available at the Pennsylvania post.) Last year's Ohio post is here.

Total jobs, including bar passage-required jobs, improved significantly. Those bar passage-required jobs rose from 571 to 662. Total graduates also rose from 888 to 961. Job placement improved even with total graduates rising, increasing the placement weight in all these areas of employment from 76% to 81%. Four of Ohio’s nine law schools still graduated fewer than 100 students.

As always, please notify me of any corrections or errata.

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Peer Score	School	2019	YoY%	BPR	JDA	LSF	Grads	2018	BPR	JDA	LSF	Grads
3.3	Ohio State University	87.5%	-2.4	132	13	2	168	89.9%	134	14	3	168
1.7	University of Dayton	83.3%	7.7	58	12	0	84	75.6%	46	13	0	78
1.5	Ohio Northern University	83.0%	15.2	38	1	0	47	67.8%	34	6	0	59
1.8	University of Akron	82.2%	12.2	82	24	0	129	70.0%	65	19	0	120
2.4	University of Cincinnati	81.0%	1.0	86	12	0	121	80.0%	58	14	0	90
1.8	Cleveland-Marshall College of Law	80.7%	-1.1	55	16	0	88	81.8%	65	7	0	88
1.9	University of Toledo	80.0%	5.9	49	15	0	80	74.1%	31	12	0	58
2.6	Case Western Reserve University	78.3%	5.3	99	12	1	143	73.0%	83	9	0	126
1.4	Capital University	67.3%	5.9	63	5	0	101	61.4%	55	7	0	101

Visualizing legal employment outcomes in Pennsylvania in 2019

Following up on a series of posts last year (and previous years), this is the first in a series visualizing employment outcomes of law school graduates from the Class of 2019. The U.S. News & World Report ("USNWR") rankings recently released include data for the Class of 2018, which are already obsolete. The ABA will release the information soon, but individualized employment reports are available on schools' websites.

The USNWR prints the "employed" rate as "all jobs, excluding positions funded by the law school or university that are full-time and long-term and for which a J.D. and bar passage are necessary or advantageous." It does not give "full weight" in its metrics to jobs that were funded by the law school. USNWR gives other positions lower weight, but these positions are not included in the ranking tables. And while it includes J.D. advantage positions, there remain disputes about whether those positions are actually as valuable as bar passage required jobs. (Some have also critiqued sole practitioners being included in the bar passage required statistics.) Nonetheless, as a top-level category, I looked at these “full weight” positions.

The top chart is sorted by non-school-funded jobs (or "full weight" positions). The visualization breaks out full-time, long-term, bar passage required positions (not funded by the school); full-time, long term, J.D.-advantage positions (not funded by the school); school funded positions (full-time, long-term, bar passage required or J.D.-advantage positions); and all other outcomes. I included a breakdown in the visualization slightly distinguishing bar passage required positions from J.D.-advantage positions, even thoug both are included in "full weight" for USNWR purposes (and I still sort the chart by "full weight" positions).

The table below the chart breaks down the raw data values for the Classes of 2018 and 2019, with relative overall changes year-over-year. Here, I used the employment rate including school-funded positions, which USNWR used to print but no longer does; nevertheless, because there are good-faith disputes, I think, about the value of school-funded positions, I split the difference—I excluded them in the sorting of the bar graphs, and included them comparatively in the tables. The columns beside each year break out the three categories in the total placement: FTLT unfunded bar passage required ("BPR"), FTLT unfunded J.D. advantage ("JDA"), and FTLT law school funded BPR & JDA positions ("LSF"). This year, I also added the total graduates. (My visualization is limited because the bar widths for each school are the same, even though schools vary greatly in size, and that means raw placement might be more impressive considering class size.)

Let me finally add that there are many other, and probably better, ways of looking at this data, including qualitative assessment of the types of jobs in each category. This is only a high-level look at eight select regions and the state of the entry-level legal employment market.

The first state is Pennsylvania (last year's visualization here). There were 1316 statewide graduates, a 6% increase over last year's class. The total placement rate among the graduates was over 90% (including a few school-funded jobs), a big jump over last year’s 82% despite a larger graduating class. Placement in bar passage required jobs jumped from 939 to 1082.

As always, if I made a mistake, please feel free to email me or comment; I confess there are always risks in data translation, and I am happy to make corrections.

UPDATE: Some figures incorrectly included both bar passage-required and J.D.-advantage jobs when they should have been separate categories. Those figures and the table below have been updated.

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Peer Score	School	2019	YoY%	BPR	JDA	LSF	Grads	2018	BPR	JDA	LSF	Grads
4.4	University of Pennsylvania	97.6%	-0.3	229	8	7	250	97.9%	216	12	10	243
2.5	Villanova University	93.8%	5.6	181	17	0	211	88.2%	127	15	0	161
2.2	Pennsylvania State - Dickinson Law	91.2%	3.9	45	7	0	57	87.3%	51	4	0	63
2.7	Temple University	90.7%	7.5	174	22	0	216	83.3%	161	13	0	209
2.2	Drexel University	88.8%	5.1	119	11	0	134	83.7%	95	13	0	129
1.8	Duquesne University	86.2%	6.2	78	16	0	109	80.0%	86	13	0	120
2.7	University of Pittsburgh	85.8%	14.0	89	14	0	120	71.9%	85	12	0	135
1.5	Widener Commonwealth	85.5%	23.3	60	5	0	76	62.3%	32	1	0	53
2.4	Penn State Law	80.4%	0.4	107	8	0	143	80.0%	86	13	1	125

Washington Post significantly overstates Supreme Court's role in RNC v. DNC absentee ballot dispute

The headline at the Washington Post in the aftermath of the Wisconsin presidential primary election (and, among other elections, state supreme court election) is a bit curious: “Unexpected outcome in Wisconsin: Tens of thousands of ballots that arrived after Election Day were counted, thanks to court decisions.” Why “unexpected”? Well, unexpected if you didn’t read what the lower courts were doing and only focused on certain opposition to the Supreme Court’s decision in RNC v. DNC.

A three-journalist by-line offer some of these takes:

But in the end, tens of thousands of mail ballots that arrived after the April 7 presidential primaries and spring elections were counted by local officials, a review by The Washington Post has found — the unexpected result of last-minute intervention by the U.S. Supreme Court.

…

The surprising outcome after warnings that many Wisconsinites would be disenfranchised amid the pandemic was the result of a largely unexamined aspect of the court’s decision that temporarily changed which ballots were counted. Because of the order, election officials for the first time tallied absentee ballots postmarked by Election Day, rather than just those received by then — underscoring the power of narrow court decisions to significantly shape which votes are counted.

…

Democrats think they have secured a game-changing precedent from the Supreme Court’s 5-to-4 order.

…

In Wisconsin, the Supreme Court’s ruling opened the door to a surge of valid absentee ballots that officials would have otherwise rejected under a state law requiring them to be received by Election Day.

…

The five conservative justices sided with the GOP, issuing an opinion on the eve of in-person voting that a blanket extension of the deadline would improperly allow voters to cast their ballots after April 7. Instead, they said ballots had to be postmarked by Election Day — effectively imposing a new standard.

…

When Republicans appealed to the Supreme Court, they challenged the decision of lower courts to extend the ballot deadline but did not explicitly seek a postmark deadline.

In bold, in the last portion of my excerpt, is a line that appears in the 45th paragraph of the piece.

What’s “surprising,” “unexamined,” and so on is because the obsessive focus was never on the lower courts’ proceedings, but instead on one aspect of the Supreme Court’s decision (highlighted by the dissenting justices, which cued how many journalists framed the litigation).

The Supreme Court concluded that an April 2 District Court order, effectively extending the election from April 7 to April 13 (refusing to count ballots until then, counting all ballots received until then, and so on), was too dramatic a departure too late in the election process. Four dissenting justices focused on disenfranchised voters—i.e., those who wanted to vote by mail but would have difficulty doing so by April 7. That’s what many journalists “examined.”

But the District Court did extend the deadline for receiving absentee ballots. Some states authorize jurisdictions to count ballots received days after Election Day, as long as they were postmarked by Election Day. Other states, like Wisconsin, require absentee ballots to arrive by Election Day to count. The District Court, as a part of the litigation, determine that the present circumstances required extending the absentee ballot deadline beyond Election Day, as long as it was postmarked by then. (It made other changes, too, like extending the deadline to require absentee ballots.)

Republicans expressly opted not to challenge this portion on appeal. Indeed, while the Washington Post’s 45th paragraph says that Republicans “did not explicitly seek a postmark deadline” (which, I think, means “did not seek to challenge the postmark deadline rules”), it’s actually more than tacit acquiescence: Republicans expressly did not appeal that part of the order. From its emergency application in the Supreme Court:

The relief that Applicants seek here is exceedingly modest. Applicants appreciate the challenges that the current pandemic creates for voters and election officials. They have not appealed other adjustments made by the district court, such as its extension of the deadlines to remotely register to vote and to request an absentee ballot. And although Applicants maintain that the issue of late-arriving ballots is premature and could be addressed when and only if the predicted mail delays actually materialize, Applicants only ask for a partial stay of the portion of the district court’s order, making clear that the extension of the deadline for the receipt of ballots applies only to those that were postmarked (or otherwise delivered) by April 7. This would give the Respondents the relief they actually requested, respect this Court’s warnings about courts altering the rules on the eve of elections, and prevent the serious possibility of fraud and misconduct created by the district court’s order.

Republicans affirmatively did not appeal this aspect of the District Court’s order. They wanted modest relief. They acknowledged remaining disputes on the facts but also acknowledged the tradeoffs of changing rules prior to the election (essentially, an inversion of the Purcell principle).

Additionally, the Washington Post is overstating it to say that the Supreme Court “effectively impos[ed] a new standard.” It did no such thing. The standard was one created by the District Court. And it was one the parties never litigated, from the very opening of the the Supreme Court’s opinion:

Wisconsin has decided to proceed with the elections scheduled for Tuesday, April 7. The wisdom of that decision is not the question before the Court. The question before the Court is a narrow, technical question about the absentee ballot process. In this Court, all agree that the deadline for the municipal clerks to receive absentee ballots has been extended from Tuesday, April 7, to Monday, April 13. That extension, which is not challenged in this Court, has afforded Wisconsin voters several extra days in which to mail their absentee ballots. The sole question before the Court is whether absentee ballots now must be mailed and postmarked by election day, Tuesday, April 7, as state law would necessarily require, or instead may be mailed and postmarked after election day, so long as they are received by Monday, April 13. Importantly, in their preliminary injunction motions, the plaintiffs did not ask that the District Court allow ballots mailed and postmarked after election day, April 7, to be counted. That is a critical point in the case.

One more line later in the opinion:

The Court's decision on the narrow question before the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be stressed enough.

In short, the Supreme Court never examined the extended absentee ballot receipt deadline. While it’s “important[]” that that issue was not appealed, that’s because it makes its per curiam decision not effectively extend Election Day to April 13, as it opens, a “narrow, technical” question.

It would be remarkable if the Supreme Court overturns a lower court decision that neither party challenges on appeal. To say that failure to do so is “effectively impos[ing] a new standard” is something of an overstatement.

Now, I don’t doubt that litigants will seize on the District Court’s action to seek opportunities—frankly, on thin records at the moment ahead of the November election—to claim that absentee ballots received after Election Day but postmarked by then should be counted in those states that require receipt by Election Day. The NCSL reports that 42 states and DC require mail-in ballots to be received by Election Day. So it would be a fairly significant departure for district courts to start revising election laws right now—particularly given that (1) legislatures have ample opportunity to address the matter ahead of November, and (2) there is deep uncertainty about what voting in November 2020 looks like. That said, there will undoubtedly be increased requests for vote-by-mail opportunities, increased snafus in trying to meet demand, and increased challenges in the Post Office trying to deliver ballots by Election Day. How individual district court judges handle these requests—how quickly, and with what kinds of appeals—remains deeply uncertain.

That said, I don’t think RNC v. DNC tells us very much, if anything, about these matters. It’s hardly a “game-changing precedent.” If anything, it indicates that, with a thin record, a decision close to the election, and a properly-framed appeal, the Supreme Court would find such a judicial order unwarranted. But we’ll see how the litigation unfolds in the months ahead.

Note: I’m fairly sloppy with my use of “absentee” and “vote-by-mail” in blog posts, often using them interchangeably, so please forgive me!

Interstate agreement to develop a regional supply chain for personal protective equipment may violate Compact Clause without congressional consent

Previously, I expressed skepticism that interstate regional “pacts” or “agreements” to coordinate reopening the economy required congressional consent under the Compact Clause. Those agreements seemed like little more than information-sharing groups and conscious parallelism. Indeed, watching how states have behaved, they’ve continued to act primarily state-by-state, even as members of these “regional” groups.

But there’s a new proposal out of the northeast:

Amid the ongoing COVID-19 pandemic, Delaware Governor John Carney, New York Governor Andrew M. Cuomo, New Jersey Governor Phil Murphy, Connecticut Governor Ned Lamont, Pennsylvania Governor Tom Wolf, Rhode Island Governor Gina Raimondo and Massachusetts Governor Charlie Baker today announced a joint multi-state agreement to develop a regional supply chain for personal protective equipment, other medical equipment and testing.

While the states will continue to partner with the federal government during this global and national public health crisis, they will also work together to identify the entire region’s needs for these products, aggregate demand among the states, reduce costs and stabilize the supply chain. The states will also coordinate policies regarding the inventory of PPE each state’s health care infrastructure should have to be prepared for a possible second wave of COVID-19. The states will also coordinate policies on what supplies local governments should have on hand for their First Responders, and if any requirements regarding PPE for the non-for-profit and private sector are needed.

The states will then seek to identify suppliers within the country, region or state who can scale to meet the demand of the entire region over the next three months. The goal of this approach is to decrease the potential for disruptions in the supply chain for PPE and medical equipment, including sanitizer and ventilators, and testing, and promote regional economic development.

…

Governor Cuomo said, “The COVID-19 pandemic created a mad scramble for medical equipment across the entire nation – there was competition among states, private entities and the federal government and we were driving up the prices of these critical resources. As a state and as a nation we can’t go through that again. We’re going to form a regional state purchasing consortium with our seven northeast partner states to increase our market power when we’re buying supplies and help us actually get the equipment at a better price.

The devil is in the details of an agreement like this, and, of course, press releases are perilously short on details. But this agreement starts to look like the kind of thing the Compact Clause cares about.

Start with some common definitions of a “compact,” “mutual declarations [that may be] reasonably treated as made upon mutual considerations,” or “reciprocity.” Here, it sounds like these states are agreeing to stop bidding individually for medical equipment and to start bidding collectively. They agree to divide the equipment based upon their internal criteria they share and pay based upon internal criteria they share.

It’s also expressly designed to leverage these states at the expense of other states, and even potentially at the expense of the federal government. That is, these governors (and I only quote Governor Andrew Cuomo, but you can read others) expressly want to increase the ability of this consortium to succeed at the expense of other states and the federal government.

Now, to be frank, my analysis may mean little—the Compact Clause has been construed exceedingly narrowly in the last two hundred years, and one is hard-pressed to find many cases where an interstate compact has been deemed to require congressional consent. And, of course, even if I’m right, Congress can always consent to the compact. But this strikes me as precisely the type of factionalism the Compact Clause is designed to prevent: if the problem is an ineffective federal coordination or excessive state squabbling, groups of states can’t team up to cure the problem for themselves at the expense of others.

Still, I wouldn’t be surprised to see some non-compacting states challenge the decisions of these compacting states. What appears to be an attempt to improve state relationships among some may well worsen those relationships among others.

Finally, one nice thing about this blog is an opportunity to throw out a possibility like this and open up for feedback. Are there purchasing power arrangements between states, like this one, that exist? Or, even better, that have faced litigation in the past? Professor James Coleman suggested that the Regional Greenhouse Gas Initiative, which includes bidding and auctions, is a possibility, and one that doesn’t have congressional consent. If anyone has others, feel free to post in the comments (which may take some time to appear).

What does it mean to "render unto Caesar"?

Jesus taught many things in His earthly ministry. He taught many difficult things, and many things still debated to this day. Here’s one such teaching from Matthew 22 (found also in Mark 12 and Luke 20):

Then the Pharisees went and plotted how to entangle him in his words. And they sent their disciples to him, along with the Herodians, saying, “Teacher, we know that you are true and teach the way of God truthfully, and you do not care about anyone's opinion, for you are not swayed by appearances. Tell us, then, what you think. Is it lawful to pay taxes to Caesar, or not?” But Jesus, aware of their malice, said, “Why put me to the test, you hypocrites? Show me the coin for the tax.” And they brought him a denarius. And Jesus said to them, “Whose likeness and inscription is this?” They said, “Caesar’s.” Then he said to them, “Therefore render to Caesar the things that are Caesar's, and to God the things that are God's.” When they heard it, they marveled. And they left him and went away.

The more famous phrase used today comes from the King James Version: “Then saith he unto them, Render therefore unto Caesar the things which are Caesar's; and unto God the things that are God's.”

I’ve heard various, challenging ways of interpreting a teaching like this. Some are primarily about a historical dispute—an interpretation about the political authority of Caesar in the region, an interpretation over whether paying tribute to Caesar freed them from contributing tribute at the temple, and so on.

But another, and greater, challenge is to consider what the “render unto God” component means—ultimately, our fealty as followers of Christ is to God, in all faith and love and obedience due Him. There are deep and abiding challenges for many Christians throughout the centuries about the scope of obedience to earthly authority when that authority runs up against one’s commitments to Christ, the martyrs first and foremost among them. A clever interpretation I once heard is that just as the face of Caesar is stamped upon the coin, the face of God is stamped upon man imago Dei, and it is why we belong to Him.

Finally, the more nuanced interpretation, and I think the best answer, recognizes the clarity of Jesus’s answer—one’s obligation is not an either/or, but a harmonious and seamless obligation to obey both at once. This is the brilliance of Jesus’s answer, and it is recognition that the Pharisees’ either/or is a false choice. Jesus’s response is not a clever way to parcel out the either/or; it is instead a clever turning of the question into a both/and. While there is a distinction He identifies, it is not an impossible-to-reconcile distinction. (It’s worth emphasizing not everyone agrees with this interpretation—after all, this is a hard teaching!)

Now, at times, matters of conscience in good-faith obedience to Christ will often define the scope of obligation to earthly authorities where the two cannot be reconciled with one another—but that is assuredly not the point of this passage, in which Jesus explains that the paying of taxes to Caesar would not run afoul of the dictates of either earthly or heavenly kingdoms.

That’s a long wind-up for this blog. But it’s the wind-up for a recent per curiam Sixth Circuit opinion from a panel consisting of Judges Jeff Sutton, John Nalbandian, and David McKeague. Professor Josh Blackman has an excerpt about restrictions on religious assemblies due to the coronavirus pandemic:

The balance is more difficult when it comes to in-person services. Allowance for drive-in services this Sunday mitigates some harm to the congregants and the Church. In view of the fast-moving pace of this litigation and in view of the lack of additional input from the district court, whether of a fact-finding dimension or not, we are inclined not to extend the injunction to in-person services at this point. We realize that this falls short of everything the Church has asked for and much of what it wants. But that is all we are comfortable doing after the 24 hours the plaintiffs have given us with this case. In the near term, we urge the district court to prioritize resolution of the claims in view of the looming May 20 date and for the Governor and plaintiffs to consider acceptable alternatives. The breadth of the ban on religious services, together with a haven for numerous secular exceptions, should give pause to anyone who prizes religious freedom. But it's not always easy to decide what is Caesar's and what is God's—and that's assuredly true in the context of a pandemic.

Professor Blackman emphasizes the last sentence, with his gloss, “The last sentence had a subtle, but effective reference to religion.”

Maybe subtle and effective, but, I think, assuredly wrong—at least, from a biblical perspective.

First, the opinion turns what is a Christian mandate into a judicial line-drawing exercise. The Christian has obligations to both God and man. I doubt this kind of exercise would be appropriate in, say, any other case of non-Christians—could you imagine a case of a judge trying to ascertain what things are God’s to those who don’t believe in Him? Are judges supposed to make these distinctions?

Second, the opinion turns a question about harmonizing heavenly and earthly authority into a question of distinctive domains between the two of them. Again, at a superficial level, Jesus is offering a distinction between the two in His answer; but His answer only makes sense, I think, in that he converts the either/or into a both/and.

Third, the opinion uses the phrase by defaulting to, as Professor Marc DeGirolami says, “plenipotentiary powers” of the state, then asking whether Christians are exempt from those powers. That’s certainly not the context of that inquiry for Jesus, as noted above.

I have little to say about the merits of the decision—of balancing existing restrictions on assembly (including religious assembly) during a pandemic, of the appropriate scope of executive authority, and the like. Others may have much more to say.

People can use a phrase from Jesus, from Shakespeare, or from Thomas Jefferson to advance a particular line of reasoning, even if it’s not what the author or speaker intended in its context. But, I think, for the Christian, phrases like this, pulled from Scripture, should be reviewed skeptically. They are not necessarily appropriate interpretations of the Gospel, in my view—whether one even necessarily agrees with my interpretations above or not. Indeed, here, the court inverts many of the principles of the Gospel that Christ places upon His followers. And, in my view, it’s a disappointing decision to use a phrase like this for such a purpose, when it tends to confuse rather than illuminate the scope of of Christian obligation.

This post has been updated for clarity.

UPDATE: This post prompted some great reactions from friends—agreement and disagreement about the passage, engagement about the points of emphasis of Jesus’s teaching, questions about Pauline or Augustinian interpretations of Christians’ obligations to authority in instances of disobedience and punishment, and so on. All this is to say, I think, that these are matters of profound importance in the Christian faith. But, I think, they’re not well-suited to judicial line-drawing…. Then again, maybe it's just a botched metaphor and I'm overthinking it.

In today's WSJ: "Trump Can't Postpone the Election"

In today's Wall Street Journal, I have an opinion piece entitled, "Trump Can’t Postpone the Election." It begins:

‘Mark my words, I think he is going to try to kick back the election somehow,” Joe Biden recently said of President Trump during an online fundraiser. To “try” is one thing. But there are constitutional and legal reasons why a president can’t delay a federal election or extend his term of office, which should dispel any worries.

11th Circuit panel overturns Florida district court decision in ballot order dispute case, and a shot across the bow to extend Rucho v. Common Cause

I’ve previously written about a Florida district court’s finding that a particular ballot order scheme unduly burdened the right to vote—and my skepticism about that holding. A panel of the 11th Circuit has overturned that decision, largely on justiciability grounds, finding that the plaintiffs lacked standing to bring the claim. That part, in an opinion by Judge William Pryor, was unanimous. Judge Jill Pryor partially dissented, agreeing that the plaintiffs lacked an injury in fact (sufficient to reverse the district court) but disagreeing on other issues the majority reached.

One interesting piece of note. Judge William Pryor wrote a separate concurring opinion to his own majority opinion. In it, he argued that Rucho v. Common Cause, the recent partisan gerrymandering decision from the Supreme Court, makes the plaintiffs’ claim a nonjusticiable political question. Florida’s ballot order law gives an advantage to the incumbent governor’s political party. Judge William Pryor argues that the same principles are at stake here. He notes, “partisan considerations are not entirely off limits in election administration,” there are “line-drawing problems,” and that while “standards exist to assess the burdens imposed by restrictions on ballot access,” “no standards exist to judge challenges to the partisan advantage conferred by ballot order.”

It’s interesting (to me, anyway) that the bulk of commentary after Rucho has focused on the partisan gerrymandering point and not the larger questions of judicial involvement in the political process. Judge William Pryor’s opinion suggests a depth of Rucho that could alter how federal courts approach a whole host of election law-related claims.

It would require a little more thinking from me before wading in. One point of sympathy with his concurring opinion, however. Judge William Pryor writes, “The Constitution commits the ‘Times, Places and Manner’ of holding congressional elections to legislatures—the state legislatures in the first instance, subject to any regulations Congress prescribes. U.S. Const. art. I, § 4, cl. 1. Our founding charter never contemplated that federal courts would dictate the manner of conducting elections—in this lawsuit, down to the order in which candidates appear on a ballot.” I have much regard for this structural-based thinking about the Constitution and elections. The existing regime of flabby balancing tests derived from rather vague constitutional provisions strikes me as unworkable and unsustainable. The justiciability point of discernable standards is, I think, a different but related concept. Surely more to be written on that in the years ahead!

Blockchain and the bar exam

Over the last few years, the word “blockchain” has been sprinkled around everything as one of the hottest buzzwords in technology. I confess, I use the word tongue in cheek. I think most references to “blockchain” are hype, and many are duped by believing that this word makes the product to which it’s attached is somehow more valuable, more efficient, or more likely to succeed. It’s a Theranos or WeWork level of hype.

So you can imagine my skepticism when I saw the Massachusetts and California announcements that their bar exams would be administered “online” September 9 and 10.

I’m still skeptical.

The NCBE, in something of an understatement, said there are “significant issues,” including security, in providing an online exam.

But I want to put this in a bit of perspective. These bar exams are scheduled to take place in four and a half months. These state bar licensing authorities believe they can create a secure remotely administered test by then. Because, recall, no one does this now.

Let’s put aside the security issue for a moment and simply focus on reliability of software. Six years ago, ExamSoft had an issue during the July 2014 bar exam where thousands test-takers were unable to upload their answers for hours. Some (I think, wrongly) even blamed this debacle on a decline in bar passage rates that cycle. Exam software is not sufficiently reliable even in the best of times. Add to that the remote (and secure) delivery of materials that have previously been printed, and the collection of those materials after the exam.

In-room security is a huge problem, too. Bar exams are notorious for picayune requirements, like a small clear plastic bag containing limited personal effects, sign-in sheets to use the restroom during the exam, and so on. Remote proctoring software purports to watch the eye movement of exam test-takers during the exam, to scan the room before and after to make sure no one else is present, and other rather theatrical promises. Let’s face it—those probably work in much lower stakes tests.

Now, as a small pushback, perhaps cheating on the bar exam doesn’t yield much. The MBE is difficult to cheat on given short periods of time and its intensive fact-application component, which makes cheating difficult (unless, I suppose, someone else is literally taking the test for you). MPTs turn on a closed universe of facts, so, again, unless someone else is writing the exam for you, looking at an outline or something won’t help much. But the ability to outline dump rightly-stated black letter law is probably a huge temptation for the essay components, and probably the very easiest thing for cheating.

And, I think, those most inclined to cheat on the bar exam—and be advantaged by cheating—are probably the ones most at risk of failing and most likely to commit malpractice later in their careers. Maybe we’re not really worried because most who take the bar exam pass anyway, and these are, after all, extraordinary times. But when I consider the repeaters—those who’ve failed before—and wonder about the pressures (and incentives) to cheat, it gives one some pause.

Really, the ideas strike me as the kinds of things pitched to bar licensing authorities with some hype: “Oh, we totally can do this online!” Perhaps a string of buzzwords about security—AI, blockchain security, and so on—were persuasive. But to build something like this out in four months—not just build, but test, fix, and feel comfortable using—strikes me as unrealistic. Even a years-long preparation of the digital LSAT led to some small problems in the first widespread use (even if it was mostly seamless).

A proposal from Dean Jennifer Mnookin at UCLA and Dean Erwin Chemerinsky at Berkeley was far better. They proposed canceling the July 2020 test to reduce uncertainty about later scheduling and postponing, and allowing recent graduates “to practice law for a defined—and relatively limited—period, such as until the July 2022 bar exam releases its results.” Granted, this would only help some cohorts, and it would exclude, say, repeaters from the proposal, but in trying times there are going to be tradeoffs in all decisions.

Finally, I’m not a Luddite! I think if we can develop a secure remotely-administer bar exam—perhaps one that looks different than the one we have today—we should go for it. Remotely, of course, is the great challenge. Moving to a digital, or a year-round test that one can self-schedule in a secure location, seem more promising. But this is a years-long project, and one that probably must start with volunteers on a small scale before ramping up.

I doubt these bar licensing authorities will actually move forward with a remotely administer bar exam this September. These licensing authorities can change their minds later, of course. Time will tell.

UPDATE: Professor Josh Blackman has more here, with comparisons to the Iowa caucuses and healthcare.gov.

UPDATE: It should be noted that Massachusetts intends to administer an alternative examination in the event the Uniform Bar Exam cannot be administered. It would be interesting to see how much notice it gives prospective test-takers about its form and contents; whether that meets the other security and practical concerns I raised; and whether it would be as reliable an exam. Of course, we’ll see plenty of experimentation, as Utah is doing!

Student-oriented reflections on the coronavirus and online legal education

I’ve read a few pieces here and there about online education (particularly online legal education) in the abrupt transition due to the coronavirus. But these often, in my view, feel unusually professor-centric, including reflections on how the students have reacted to the professor’s online experience (e.g., describing the experience as particularly “intimate” in the eyes of the professor). In my view, there are a number of significant barriers facing many students in an online environment that I’m trying to puzzle through in the event the fall term continues to drive us online. (I’ve seen some of these laid out elsewhere, so I hardly want to claim they’re novel—but I do believe they merit more emphasis than many of the takes I’ve seen.)

Access to reliable high-speed Internet. This is assuredly the largest problem students face. I’d venture to say that a quarter of my students don’t have good Internet access. Being able to participate live requires reliable high-speed Internet access. Understandably, this has been a priority of the FCC in recent years, particularly rolling out more reliable Internet to rural communities. But cities need to provide better opportunities for Internet service providers—more competition, subsidizing upgrades, whatever it might be—to make this possible. It is a dramatic barrier for many students who have to watch asynchronously, when they get a chance to find a place to download a lecture or to download it over a few hours. Indeed, I couldn’t stream from my home because the Internet is so poor, a reason I’ve had to use the law school (deemed “essential” to continue education continuity).

Streaming and note-taking simultaneously, and laptop hardware. Another challenge is the set-up for students while note-taking. Most students can take notes on a laptop while looking at the instructor or classmates in class. Now, students are trying to use the same screen for both watching the lecture and note-taking. Small laptops screens make this poor. Worse, many student-advertised laptops are optimized for low resource uses, like note-taking, not high resource uses, like streaming video. Zoom is not as resource-intensive as, say, video gaming, but it does require more effort and increases chances of lagging and crashing. If students have a second monitor—or a second computer—they are much more likely to enjoy streaming and note-taking separately.

Study spaces. Campus housing and libraries are tremendous resources for many students. It provides places away from home to live, study, and work. Without those spaces, students have had to compete for resources in the close confines of life with parents, siblings, and others living at home. Even with good Internet, they may not have the space or time to participate in synchronous classes.

Home life matters. Relatedly, it’s not that the coronavirus is draining resources from students focusing on that illness (at least, not for the majority of them). Instead, it’s that, once students return home, there are many new challenges that home life invites. There are the obvious disruptions, like child care. But, say, routine matters of family health—when living at home, you’re inclined to help out with a parent’s doctor’s appointment, whereas when living in a dorm hundreds of miles away, you couldn’t do so. For many students, school simply looks different when thrust into the ordinary every day of home life.

Now, for those students who remained living in, say, an off-campus apartment, with reliable Internet and multiple computer monitors, with a significant other or alone or a reliable roommate, life may look little different.

And even with such challenges, students are undoubtedly doing their best. I’ve done an okay job checking in with them. I should do better in the year ahead.

But I think schools need to be thinking about how to handle these myriad complications facing students in future iterations of online education. Yes, while online education often exists elsewhere and it’s hardly new, students doing so often (1) deliberately opted into ex ante, not mid-degree or involuntarily; (2) relied upon an existing support infrastructure, including child care and housing arrangements; and (3) used particular Internet and computer resources ahead of joining the class. Schools would do well to consider how to tackle these challenges in the months ahead.