Disaggregating the debate over the bar exam and diploma privilege

Longtime readers of this blog know my frustration over conflating arguments in the debate over the bar exam. And it’s happening right now in a very public (and heated) way about diploma privilege. In my view, there are two very different arguments about diploma privilege that are too quickly conflated. (Reader, beware: much hedging and musing ahead….)

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The first is a specific concern related to the coronavirus pandemic and administration of the summer/fall 2020 bar exam. That is, given the complications of administering a largely-indoor exam over two days to hundreds or even thousands of strangers who have been asked to travel and congregate together, perhaps alternatives should be considered. Diploma privilege is one such consideration. There are many alternatives, but it’s worth considering cohorts of test-takers—for instance, the privilege might not extend to out-of-state graduates, graduates of foreign law schools, of state-accredited law schools, of practicing attorneys in other states, or those who’ve previously failed the exam. Nevada, for instance, looking at alternatives, will put an online twist on an old practice-oriented format. I’m still skeptical of how online administrations will work (or, really, just about any alternative system!), but several states are moving toward similar formats.

It’s worth noting that many bar licensing authorities simply failed to think adequately, even in small ways, last spring about what might happen this summer. I wrote back in March that postponement seemed like a suboptimal choice because, as I noted, “it’s not clear when this pandemic will end.” And given the relationship between law school grades and the bar exam, I thought a minimally-disruptive alternative like substituting law school work product for the bar exam might be a good option. (For what it’s worth, no one’s asked me about this idea….)

A few states have already moved in the direction of diploma privilege. Utah’s strikes me as the most sensible so far of the versions of “diploma privilege,” if somewhat rough justice—it covers the vast majority of first-time test-takers in the state and many from out-of-state schools, even at the expense of some cohorts of would-be test-takers, but that’s what rough justice does here. Utah’s proposal has, I think, received some unfair criticism both as too generous and as too restrictive. Oregon’s strikes me as somewhat more curious in its rough justice but in line with Utah’s. Washington, in contrast, strikes me as potentially overbroad with the admission of a number of prospective test-takers who’ve failed the bar multiple times, but, as I noted, perhaps can be mitigated with oversight in the years to come.

In my view, the more honest assessment is this: “Taking a traditional written bar exam in a pandemic is not feasible. Any new bar exam system—online, or a new kind of test, or whatever it might be—is going to cause some uncertainty and problems. A rule like diploma privilege for first-time test-takers of ABA-accredited law schools might result in some small additional long-term risk of some members of the public receiving representation from attorneys who are not qualified to do so. But the alternatives are too costly—postponement has already failed, for instance. And given that the vast majority of test-takers pass the bar exam [depending on one’s state, of course!], diploma privilege is reasonable measure at this time [for a particular cohort, as so defined]. Let the state bar look at this cohort closely in the years to come to try to avoid any malpractice, attorney discipline, or other concerns that might arise.”

To me, that ought to be persuasive in many (not all!) jurisdictions. It’s honest, it concedes costs, it identifies the trade-off, and it tries to cabin the scope. It could be paired with other things like supervised practice as Utah is doing or as advocated elsewhere. Advocates of emergency diploma privilege tend, in my view, to overstate the historical comparisons, but emphasis on the emergency, I think, can go a long way.

In my view—and, my sense is, I’m an outlier among many—I think licensing authorities are genuinely trying to do the best they can, as divergent as the approaches might be. Yes, some are going to be more ham-handed than others or less empathetic than others. But I’m not so quick to ascribe ill motives or malice to licensing authorities tasked with many competing concerns and high degrees of uncertainty.

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The second is a general concern that diploma privilege is superior to the traditional written bar exam. My own views on the traditional written bar exam are decidedly mixed.

I think the bar exam today reflects a fundamental distrust of law schools (that law schools, either specific schools or a cohort at given schools, admit, retain, and graduate too many students who lack the minimum competence to practice law) and the American Bar Association’s accreditation practices (the belief that they are too loose and fail to enforce admissions, retention, and standards, perhaps in part due to Department of Justice pressure). But I’ve suggested there’s trust in Wisconsin (and just two schools), and there might be opportunities for law schools and state bar licensing authorities to start developing that trust with one another again. On the other hand, the bar exam closely tracks law school performance, and performance on the bar tracks ultimate misconduct rates, which suggests a close consideration of what the alternative mechanisms will look like before switching admissions practices.

Frankly, proposals like Utah’s and Oregon’s suggest traits I’ve looked at before in trust between bar licensing authorities and law schools: in-state trust of two or three schools with already high passage rates (typically well over 80%) on the first attempt, and some trust of highly-performing out-of-state schools. It’s also a very different model than, say, Wisconsin, which has long required a series of state-specific courses as a condition of benefiting from the diploma privilege. Is the object of law school state-specific knowledge? Or general legal competence? Wisconsin’s is more the former, Utah’s and Oregon’s emergency proposals more the latter.

It is also, I think, very different to think of a how-to-handle-an-emergency diploma privilege, and ex-ante-new-bar-licensing-regime diploma privilege. The latter—the long-term change—would, I think, require a years-long phase in so that law schools could ensure they’ve adopted the admissions, retention, and graduation standards that the state bar prefers.

Statements claiming that the bar exam does “nothing,” then, or is “worthless,” or should be “abolished,” are, in my view, really a much deeper, and longer, debate—including what would replace it. I think it would require this “state-specific v. general competence” question to be addressed. It would require schools to reconsider admissions, retention, and graduation standards. It would reduce the role of the ABA and give greater scrutiny to what the ABA deems “compliant”—or at least turn the ABA into heeding state bar licensing authorities more closely. It would reconsider what post-graduation CLE and discipline looks like. It would also reexamine the role of character and fitness examinations (also deeply questioned in the academic literature) and the MPRE.

In short, I’m not a particular fan of “immediate diploma privilege now” because I think the bar exam still serves an important role in constraining law schools in their admissions, retention, and graduation standards. I think the bar exam isn’t necessarily the test I’d design—heavy on rote memorization and offered only twice a year—but I think replacing will take some effort. And any new program, even if instituted today, would likely only begin with the cohort graduating in the Class of 2024, after a year of admissions policies are in place with three years of retention and graduation standards for this cohort.

Now, I don’t say this as a desire to preserve the status quo by kicking the can down the road, postponing indefinitely to “study” issues to reach no resolution, and so on. It’s just to say—and I’m not a part of any of these discussions!—that a lot of thoughtful people have been thinking about a lot of thoughtful alternatives (versions of diploma privilege among them, but supervised practice, “bridge to practice,” etc.) for some time, and maybe state bar licensing authorities will finally get serious about these alternatives after this pandemic.

And it’s a reason I think this big debate is very different from the emergency debate. I think the bar exam has a place. I think it could be replaced. But that all requires a very different and much more structural reorientation of legal education and the state bar licensing regime than the pressing and temporary exigencies of administering a bar exam during a pandemic.

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One more point. This is a debate over license standards—should a law license be conditioned on passing the bar exam? Graduating from an ABA-accredited school? Hours of supervised practice? One might have a different debate entirely about whether a bar license itself should be required.

Licenses, I think, can serve a public protection purpose. After all, if you may be imprisoned, we may think the average consumer (here, criminal defendant) lacks the ability to engage in the assessment of the quality of a self-described lawyer, at least when compared to the fairly catastrophic outcome of having incompetent representation. On the scale of “licenses for hair braiding” to “licenses for performing open heart surgery,” maybe law is closer to medicine than beauticians.

But we can still think about legal reforms where we don’t require a full J.D.-plus-bar-passage to do some legal services. Washington State has experimented (very modestly) with this for certain family law disputes. Utah and Arizona are moving toward narrowing the definition of “unauthorized practice of law” to allow more limited opportunities to engage in law-related activities. And maybe we’ll get to a point where passing the bar is not required to practice all forms of law, and there can be licensed and unlicensed practice, much like, say accounting.

Conditioning practice of law on passing the bar exam is, maybe in some ways, less onerous than conditioning practice of law on completing three years of education at an ABA-accredited school. In most states, however, you have to do both; in some states, you can complete alternative forms of education.

Maybe this debate will also spill over into our discussions about what the “practice” of law is, and who should or should not be excluded from that. Diploma privilege is (probably) one way of broadening opportunities for the practice of law. Other ways might follow.

Justice Kagan wrote on behalf of eight justices—not seven—in Chiafalo v. Washington

I’ve seen several versions of the claim that Justice Elena Kagan’s opinion in Chiafalo v. Washington was “on behalf of seven justices,” with Justice Clarence Thomas concurring in the judgment, joined in part by Justice Neil Gorsuch.

That’s not accurate. Justice Kagan’s opinion is on behalf of eight justices, all but Justice Thomas. This comes from the case syllabus:

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, ALITO, SOTOMAYOR, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment, in which GORSUCH, J., joined as to Part II.

Admittedly, one’s eyes might glaze over the caption to see that Justice Thomas concurred in the judgment, in which Justice Gorsuch joined, and conclude that Justice Gorsuch did not join Justice Kagan’s opinion. But according to the case caption, he joined Justice Kagan’s opinion in full, and he joined part of Justice Thomas’s opinion.

This is a curious move, to say the least, and feels a little belt-and-suspenders for Justice Gorsuch. Justice Kagan’s opinion relies on states having power under Article II and the Twelfth Amendment, which “give[s] States broad power over electors.” Justice Thomas’s opinion relies on states having power under the Tenth Amendment: “When the Constitution is silent, authority resides with the States or the people. This allocation of power is both embodied in the structure of our Constitution and expressly required by the Tenth Amendment.” He continues, “Put simply, nothing in the text or structure of Article II and the Twelfth Amendment contradicts the fundamental distribution of power preserved by the Tenth Amendment.”

Justice Gorsuch didn’t join Justice Thomas’s part of the opinion describing Article II and the Twelfth Amendment as simply an obligation on the states rather than a source of power to the states. So he might agree that there’s power in Article II and the Twelfth Amendment, and he wants to emphasize the structural point of the Tenth Amendment.

But there might be another reason. Might. Justice Gorsuch might have sought to protect this line of Justice Thomas’s opinion from attack by Justice Kagan’s majority opinion, which did, after all, secure eight justices. Justice Kagan did attack Part I of Justice Thomas’s opinion, but she didn’t make any mention of the Tenth Amendment—and for that, Justice Gorsuch could join in full. Indeed, it might be a reason why Justice Gorsuch didn’t need to identify a separate endorsement for Justice Thomas’s position in Baca. It preserves a line of Tenth Amendment reasoning for future cases that hasn’t been expressly dismissed by a majority of the Court.

Maybe it’s too much speculation at this point. But the opening point of this post still remains—eight justices, not seven, joined in the principal opinion in Chiafalo.

 I revised the title because the post was confusing. My apologies!

A puzzle to consider in Colorado Department of State v. Baca

The two “faithless elector” cases were originally consolidated to be heard together. But Justice Sonia Sotomayor late in the process discovered she knew one of the parties in the Colorado case and withdrew. That may have been a fortuitous act and provided a clean opinion in Chiafalo v. Washington—and the per curiam opinion in Colorado Department of State v. Baca gives us a hint why.

Many have focused on the substantive difference between the Washington and Colorado laws—Washington counts a faithless vote but fines faithless electors; Colorado does not count a faithless vote and replaces a faithless elector.

But there were material procedural differences, too—specifically, multiple material problems with the Colorado plaintiffs’ case in Baca. In Washington, the electors were fined and contested that in state court. Easy injury to provide (a $1000 fine), easy remedy to seek, easy cause of action to raise.

In Colorado, however, plaintiffs faced several challenges. Were their claims moot? Could they sue a state under Section 1983—or, really, could the state waive this argument when sued for damages?

At oral argument in Baca, Justice Stephen Breyer in particular with concerned about these procedural wrinkles in the Colorado case. Justice Samuel Alito and Neil Gorsuch also raised versions of such concerns.

Now, because Justice Sotomayor was recused from Baca, the principal case became Chiafalo, because all nine justices could participate. Eight justices joined Justice Elena Kagan’s opinion; Justice Clarence Thomas concurred in the judgment, which Justice Gorsuch joined in part.

Now, to the entirety of the Court’s per curiam opinion in Baca:

PER CURIAM.

The judgment of the United States Court of Appeals for the Tenth Circuit is reversed for the reasons stated in Chiafalo v. Washington, ante, p. ___.

It is so ordered.

JUSTICE SOTOMAYOR took no part in the decision of this case.

JUSTICE THOMAS concurs in the judgment for the reasons stated in his separate opinion in Chiafalo v. Washington, ante, p. ___.

I looked at this opinion a few times wondering what happened. Specifically, what happened to Justice Gorsuch? He agreed with Justice Thomas’s Tenth Amendment argument in Chiafalo. What about here? Is the Tenth Amendment no longer in play?

And then I considered another possibility—as a per curiam opinion, we don’t see the lineup of justices. Some justices may not agree with the outcome but may choose not to note their dissenting opinion. It might be the case that Justice Gorsuch (and perhaps another, like Justice Breyer) didn’t agree to reverse for the reasons stated in Chiafalo. It might be that the procedural wrinkles would have been a reason to reverse, but they opted not to publicize that here and now, saving the issue for another day.

I don’t know. I would, however, resist the urge to call Baca a “unanimous” decision of the Court. It certainly appears unanimous. But there are reasons to think that some of the procedural wrinkles would lead some members of the Court to come out differently if they couldn’t hide behind the per curiam opinion here.

Avoiding the temptation to overread Chiafalo v. Washington

I’ve taken a day to chew over the Supreme Court’s decision in Chiafalo v. Washington, the “faithless electors” case. I’ve read a lot of commentary and talked to a lot of people who’ve wondered about broader implications of this case. My reaction is: it might be best not to overread this case.

This is, in one sense, an extraordinary case, but in another, and perhaps more significant, sense, a narrow case. The case is really about one set of facts: the state power to penalize or replace electors who cast a vote contrary to statewide popular vote winner.

I think some of the Court’s language could plausibly be used in other contexts. For instance, when it talks about the “State’s popular vote,” could that preclude a pledge for the national popular vote winner? Maybe—but, then again, maybe because that’s the way states do it now, and that’s what Washington and Colorado do, so that’s the language used. When the Court says that the Equal Protection Clause binds legislative decisionmaking, does that mean the legislature no longer has the power to select electors itself? Maybe—but, then again, the Court elsewhere favorably cites the deferential approach in McPherson v. Blacker. Could Congress be bound by the Court’s reasoning? Maybe—but, then again, it favorably cited “Congress’s deference to a state decision” elsewhere.

In short, my instinct in a decision with an eight-justice majority is to closely heed the narrow holding—states, I think, are free to run with statutes that bind presidential electors—and to loosely consider the Court’s reasoning for later application. It might be persuasive to a five-justice majority considering a later issue, but it’s just as easily distinguishable for some of the reasons I identified. The context matters, and the context here—again, while extraordinary—is narrow. So, in short, the reasoning is as persuasive to later courts as later courts deem it—no more, no less, and, really, hardly binding. The “mays” are just mays, not musts.

That’s my sense of how to read this case, anyway.

Weaponizing the ballot: voters sue to keep candidate off ballot for unpaid campaign finance fines

Richard Winger over at Ballot Access News has the details about a lawsuit filed in federal court challenging a candidate’s appearance on the ballot. Brenda Jones, a former member of Congress, is challenging incumbent Rashida Tlaib in the Democratic Party primary in a congressional district in Michigan. Plaintiffs in this lawsuit claim Ms. Jones falsely attested that she had no unpaid campaign finance fines, when she apparently did.

In Weaponizing the Ballot, I emphasize that even fairly light restrictions on a candidate’s ballot access that do not pertain to the “manner” of holding an election—that is, procedural rules pertaining to an election—would run afoul of the Constitution’s enumerated qualifications for federal office and exceed a state’s power under the Elections Clause. The claim holds here, in my view—the lawsuit should fail, and Ms. Jones (whose name already appears on the ballot—plaintiffs ask that votes cast for her not be counted) should be able to seek office unencumbered by the Michigan statute.

Analysis of the Supreme Court's decision in the "faithless electors" cases

The Supreme Court has issued its decision in Chiafalo v. Washington and Colorado Department of State v. Baca. The primary opinion in Chiafalo is here. A brief per curiam in Baca is here. Justice Elena Kagan wrote the principal opinion joined by all justices except Justice Clarence Thomas; Justice Thomas filed an opinion concurring in the judgment, joined by Justice Neil Gorsuch in part. The power of the state to regulate “faithless electors”—either fining them or replacing them—was affirmed.

In Chiafalo, three electors cast votes for Colin Powell for president and assorted candidates for vice president instead of Mrs. Clinton and Tim Kaine. Congress counted those votes for Mr. Powell. Those electors were each ultimately fined $1000.

In Baca, an elector who attempted to cast a vote for John Kasich for president instead of Hillary Clinton was deemed to have vacated his office. He was replaced, another elector voted for Mrs. Clinton, and that vote was counted in Congress. (Justice Sonia Sotomayor was recused from this case because she had a friendship with one of the parties.)

Justice Kagan’s opinion relies heavily in part on Ray v. Blair, the 1952 Supreme Court decision that permitted states to require a pledge to support the candidate, but it reserved on the enforceability of that pledge. The “longstanding practices” of electors weighed against the challengers in Ray v. Blair, and it’s the same here in Chiafalo. Justice Kagan’s opinion also relies on the NLRB v. Noel Canning decision (slip op. at 13) to emphasize longstanding practices.

Justice Kagan’s decision really relies on a phrase she notes on p.10 of the slip opinion, “The Constitution is barebones about electors.” This gives states broad power over electors.

Justice Kagan is less than impressed with the argument that “vote” or “ballot” necessarily implies choice. She explains, “But those words need not always connote independent choice. Suppose a person always votes in the way his spouse, or pastor, or union tells him to. We might question his judgment, but we would have no problem saying he 'votes' or fills in a 'ballot.'" (Slip op. at 11, with more onto 12.)

Justice Kagan also situated the Twelfth Amendment as an important qualification to the original understanding of the scope of elector discretion. She emphasized, “The Amendment thus advanced, rather than resisted, the practice that had arisen in the Nation’s first elections,” that is, party-line voting. (Slip op. at 14-15.)

Congressional deference matters some, but not the way the electors suggested: “Congress’s deference to a state decision to tolerate a faithless vote is no ground for rejecting a state decision to penalize one.” (Slip op. at 17.)

To my mind, of note includes footnote four, which provides, “And if a State adopts a condition on its appointments that effectively imposes new requirements on presidential candidates, the condition may conflict with the Presidential Qualifications Clause.” That’s a view suggested in Term Limits v. Thornton and which I get at in Weaponizing the Ballot, about whether states have the power to add qualifications to presidential candidates—yes, there’s a “may,” but the suggestion continues that states may not do so.

Footnote eight also concedes questions about how to handle candidates who die between Election Day and the meeting of the Electoral College. In my mind, there are interesting Twentieth Amendment questions in such circumstances, too, that may lessen the concern—but, as the Court notes, it’s not something for the Court to confront at this time.

Justice Thomas filed an opinion concurring in the judgment, joined in part by Justice Gorsuch. Justice Thomas returned to his dissenting opinion in Term Limits v. Thornton (1995)—he views the Constitution’s elections clauses not as granting power to a state, but requiring states to perform a duty. He returned to a more vigorous view of the Tenth Amendment (this is the portion of the opinion Justice Gorsuch joined). The Constitution’s silence on the power to control electors should lean toward the state’s reserved powers under the Tenth Amendment to regulate them. His views didn’t carry the day, obviously, but they do get to the same place as the majority opinion.

In short, all nine justices agreed that states may fine faithless electors or replace them. I anticipate more states will enact statutes doing so just in the years ahead.

This post has been updated.

Related reading:

No, the Electoral College will not give the presidency to Hillary Clinton, Nov. 13, 2016

New effort (doomed to fail) calls for presidential electors to collectively exercise independent judgment, Dec. 6, 2016

The Electoral College won’t stop Trump—but it may change how political parties pick electors in 2020, Dec. 11, 2016

Faithless electors: Now it’s up to Congress, Wall St. J., Dec. 21, 2016

Status of 2016 faithless presidential elector litigation, Dec. 19, 2017

Washington State Supreme Court upholds finds for 2016 faithless electors, May 23, 2019

Analysis: 10th Circuit finds Colorado wrongly removed faithless presidential elector in 2016, Aug. 21, 2019

Why “faithless electors” have little power to change the winner of presidential elections, Oct. 14, 2019

Symposium: Leave courts out of presidential elector dispute, SCOTUSblog, Apr. 20, 2020

Brief of Professor Derek T. Muller as amicus curiae in support of neither party, Chiafalo v. Washington & Colorado Department of State v. Baca

Oral argument analysis: Will the Tenth Amendment make a comeback in the faithless electors cases?, May 13, 2020

A literature review of some studies about the bar exam

In recent weeks, there’s been a surge in assertions that the bar exam does “nothing,” is “pointless,” is “worthless,” and so on. Take, for instance, the claims in this op-ed from an Oregon appellate judge, critiquing the claim that the bar acts to protect the public as “completely unfounded,” the bar “does not function to protect the public,” and “I have never heard anyone make a cogent connection between the types of lawyer conduct that harms the public and the screening that occurs via the bar examination.”

These assertions are wrong. I thought I’d start to compile a literature review of studies about the bar exam (one that assuredly can and will be supplemented!).

Here, I seek to compile two sets of studies that may be relevant. (I only include a brief excerpt from each; please do read the entire study for more about the size of the sample, the strength of the inferences, the location where the study took place, and so on!) The first are studies that examine the relationship between bar exam performance and attorney discipline. The second are studies that examine the relationship between bar exam performance and law school grades.

One can challenge these studies, of course (e.g., the strength of the evidence, how significant the effect in any given study is, etc.). And one can still conclude that the bar exam is too costly, too high a barrier to the practice of law, and so on. And one could finally admit these relationships but examine alternative concerns, like the coronavirus pandemic and bar exam logistical problems. But these are, of course, distinct arguments—and I’ve found arguments about the bar exam are too quickly and easily conflated.

For instance, one could accept that there exists a relationship between bar exam performance and attorney discipline—lower bar exam scores correlate with higher ultimate attorney discipline rates, and failing the bar exam at least once correlates with higher ultimate attorney discipline rates. But one could still argue that the risk is too low, or too distantly removed; or, that the increased risk should lead bar licensing authorities to use more powerful tools to prevent that discipline later through better mentoring and oversight. Indeed, in the article I co-authored with Professor Rob Anderson, we identified several of these points—do read the piece!

Additionally, the relationship (at least, a moderate relationship) between law school grades and bar exam performance, I think, tends to undermine the claim that the bar exam is “meaningless”—unless law schools are willing to concede that their own grading is meaningless and employers are willing to concede that reliance on grading is meaningless. (Maybe some will!) While the bar exam is a different test than law school exams (and both are different from the actual practice of law), they do, I think, all tend to test legal analysis, albeit in varied ways. One could still, of course, critique the bar exam as excessively reliant on rote memorization, too costly an investment for law school graduates, and so on. (And while one might ask why the bar exam continues to require graduates of ABA-accredited schools to pass the exam, it’s principally because licensing authorities distrust law schools to maintain adequate admissions, retention, and graduation standards.)

Two more things to consider, too. The first is how to examine the bar exam—one could look at the binary pass-fail outcome, or one could examine a given bar exam score (e.g., distinguishing performance on the bar exam of, say, a score of 145 versus a score of 130). The second is Type I & Type II errors—for instance, the bar admits some people who may end up facing discipline one day, but it does not admit some people who may go their entire careers without facing discipline.

There is much to chew on when examining the relationship between the bar exam and other items, but these, I hope, provide a fruitful starting point for discussions about the bar exam—without the heated (and erroneous) rhetoric that’s too common in these debates.

Please, of course, feel free to contact me if you find a useful study that merits inclusion!

Relationship between bar exam performance and attorney discipline

Leslie C. Levin, Christine Zozula, & Peter Siegelman, A Study of the Relationship Between Bar Admissions Data and Subsequent Lawyer Discipline, LSAC (2013) [archive]

[Ed.: In a Connecticut study, Model 4 drops law school rank and grades as variables, revealing that failing the bar exam is a predictor of future discipline, even when many “character and fitness” variables are controlled.]

Jeffrey S. Kinsler, Is Bar Exam Failure a Harbinger of Professional Discipline?, 91 St. John’s Law Review 883 (2018)

Using bar exam and disciplinary data from Tennessee, this Article substantiates the following theses: (1) The more times it takes a lawyer to pass the bar exam the more likely that lawyer will be disciplined for ethical violations, particularly early in the lawyer’s career; and (2) The more times it takes a lawyer to pass the bar exam the more likely that lawyer will be disciplined for lack of diligence—including non-communication—and/or incompetence.

Robert Anderson IV & Derek T. Muller, The High Cost of Lowering the Bar, 32 Georgetown Journal of Legal Ethics 307 (2019)

Using a large dataset drawn from publicly available California State Bar records, our analysis shows that bar exam score is significantly related to likelihood of State Bar discipline throughout a lawyer’s career. We investigate these claims by collecting data on disciplinary actions and disbarments among California-licensed attorneys. We find support for the assertion that attorneys with lower bar examination performance are more likely to be disciplined and disbarred than those with higher performance.

Kyle Rozema, Does the Bar Exam Protect the Public?, draft 2020

I study the effects of requiring lawyers to pass the bar exam on whether they are later publicly disciplined for misconduct. In the 1980s, four states began to require graduates from all law schools to pass the bar exam by abolishing what is known as a diploma privilege. My research design exploits these events to estimate the effect of the diploma privilege on the share of lawyers who receive public sanctions by state discipline bodies. Lawyers admitted on diploma privilege receive public sanctions at similar rates to lawyers admitted after passing a bar exam for the first decade of their careers, but small differences begin to emerge after a decade, and larger differences emerge after two decades. The estimates suggest that the diploma privilege increased the share of lawyers who received a public sanction within 25 years after bar admission from 4.5 percent to between 4.6 and 6.5 percent.

Relationship between bar exam performance and overall law school grades

Douglass Boshkoff, Phillips Cutright, & Karen Cutright, Course Selection, Student Characteristics and Bar Examination Performance: The Indiana University Law School Experience, 27 Journal of Legal Education 127 (1975)

For example, [the table] shows that 90.9% of students with a cumulative grade point average of 2.8 or higher passed the examination, while only 38.4% of those with an average of 2.0 to 2.3 were successful. The differential indicates a powerful effect of academic performance in law school. Furthermore, this differential is affected little when the other characteristics of graduates with high or low grades are considered . . .

Kristine S. Knaplund & Richard H. Sander, The Art and Science of Academic Support, 45 Journal of Legal Education 157 (1995)

UCLA students with a B+ (83) average in law school are one-tenth as likely to fail the bar exam as students with a C+(73) average.

Linda F. Wightman, LSAC National Longitudinal Bar Passage Study (1998)

Using data from all jurisdictions combined, the logistic regression analyses showed that both adjusted LGPA and LSAT score were statistically significant factors in explaining bar examination outcomes. Another way to evaluate the utility of this model for explaining bar examination outcomes was to examine the correlation between predicted and actual outcomes. For these data, the correlation between predicted and actual pass or fail was .52. (By comparison, the mean correlation between LSAT score and first-year law school average [FYA] was .41 for law schools participating in the 1990-92 LSAC correlation studies. The multiple correlation of LSAT score and UGPA with FYA was .49 for those same schools.)

Linda Jellum & Emmeline Paulette Reeves, Cool Data on a Hot Issue: Empirical Evidence that a Law School Bar Support Program Enhances Bar Performance, 5 Nevada Law Journal 646 (2005)

From the July 1997 examination [of the Virginia bar exam] through the February 2001 examination, the passage rate for students [from Richmond Law] in the bottom half of the class was 51.3%. The fourth-quartile passage rate was 26.0%. In comparison, the passage rate for the top half of the class was 93.9%.

Michael Kane, Andrew Mroch, Douglas Ripkey, & Susan Case, Impact of the Increase in the Passing Score on the New York Bar Examination, National Conference of Bar Examiners (2006)

The high correlations between the two versions of the L-GPA and bar examination scores indicate that there is substantial overlap in what is being evaluated on the bar examination and what is being evaluated in law schools. The strong positive correlation (.63) between the 4-pt L-GPA and bar examination scores indicate that relative performance in law school (independent of the selectivity of the law school) is an important determiner of performance on the bar exam; the 4-pt L-GPA accounts for almost 40% of the variance in bar examination scores. The Index-Based L-GPA has a somewhat higher correlation with bar examination scores (.68) indicating that the strength of the relationship between grades in law school and performance on the bar examination can be enhanced by taking the selectivity of the law school into account; the Index-Based L-GPA accounts for about 47% of the variance in bar examination scores.

The bar examination scores have their highest correlation with the Index-Based L-GPA and their second-highest correlation with the 4-pt L-GPA. So it is clear that performance on the bar examination is strongly related to performance in law school. The correlation of bar examination scores with LSAT scores is fairly high, and the correlation with U-GPA, which has the lowest value of the four correlations, is also reasonably high. Note that U-GPA has a higher correlation with bar examination scores than it has with the LSAT scores. This is somewhat surprising, because the bar examination is taken three or more years after graduation from college, while the LSAT is generally taken closer to the completion of undergraduate education.

Lorenzo A. Trujillo, The Relationship between Law School and the Bar Exam: A Look at Assessment and Student Success, 78 University of Colorado Law Review 69 (2007)

Through research, surveys, and compilation of the resulting data, it became apparent that the single most important predictor of bar passage rate was a student's relative law school class rank.
. . .
This research indicates that neither the LSAT nor undergraduate GPA are as meaningful indicators of success on the bar exam as class rank, which remains the best predictor for success on the bar exam.

Douglas K. Rush & Hisako Matsuo, Does Law School Curriculum Affect Bar Examination Passage? An Empirical Analysis of Factors Related to Bar Examination Passage during the Years 2001 through 2006 at a Midwestern Law School, 57 Journal of Legal Education 224 (2007)

Table 2 demonstrates a strong association between a graduate's final class rank, by quartiles based on final LGPA, and bar examination passage. Graduates of the School of Law who ranked in the first quartile of their law school graduating class passed the bar examination at a 100 percent rate over the five year period of the study. Graduates who ranked in the second quartile of their law school graduating class passed the bar examination at a 95.6 percent rate during the same period. Graduates who ranked in the third quartile of their graduating class passed the bar examination at an 82.6 percent rate and the bar examination passage rate dropped to49.5 percent for those graduates who ranked in the fourth quartile of their graduating class.

The association becomes even more apparent for those graduates who ranked in the bottom 10 percent of their graduating class. Those graduates passed the bar examination at a 27.6 percent rate during the five year period of the study.

Donald H. Zeigler, Joanne Ingham, & David Chang, Curriculum Design and Bar Passage: New York Law School's Experience, 59 Journal of Legal Education 393 (2010)

The bar pass rate of the bottom 10 percent of the graduating class [of New York Law School] was truly abysmal, as is the case at many law schools. The pass rate was sometimes in the single digits and never more than 20 percent.

Derek Alphran, Tanya Washington & Vincent Eagan, Yes We Can, Pass the Bar-University of the District of Columbia, David A. Clarke School of Law Bar Passage Initiatives and Bar Pass Rates - From the Titanic to the Queen Mary!, 14 UDC/DCSL L.Rev. 9 (2011)

As shown in Table 1 there was a difference in bar passage rates on first attempt of 36.8% between students in the upper half of the law school GPA distribution and the bottom half of the GPA distribution. The bottom half of the class was students with a GPA of 2.91 and below. There was a bar passage rate of 92.7% for first and multiple attempts for the top half of the class and 66.4% for the bottom half of the class. This difference in bar passage rates is more pronounced when GPAs are broken out by quartile (Table 2). The bar passage rate on first attempt of the top quartile was86.8% and of the bottom quartile was 25.0%. Over 94.2% of students in the top quartile had passed the bar after their second attempt as compared to 46.0% of students in the bottom quartile.

Nicholas L. Georgakopoulos, Bar Passage: GPA and LSAT, not Bar Reviews, draft 2013

The most striking result of the analysis is the accuracy with which the law school GPA predicts bar passage on the first try. This is visible in the probit models of the first and fourth columns but also in the simple frequency table 5. Graduates with a GPA below 2.6 pass the bar at a less than 10% rate, with two out of 21 students passing. Students with a GPA over 3.2 pass the bar at a well over 95% rate, with three graduates out of 110 failing.

The extraordinary power of GPA to predict bar passage diminishes dramatically for graduates taking the bar for a second time. The second time takers are significantly fewer in number. As a corollary of the high success rate of graduates with GPAs above 3.2 on their first try, very few such graduates appear in this subsample. The success rates, however, do not change nearly as fast as in the subsample of first-time takers. From GPAs of 2.5 to GPAs of 3.1, success rates hover about 50%.

Leslie C. Levin, Christine Zozula, & Peter Siegelman, A Study of the Relationship Between Bar Admissions Data and Subsequent Lawyer Discipline, LSAC (2013) [archive]

Higher law school grades and law school class rank are both negatively associated with discipline risk, but the effect is only statistically significant for grades.

Scott Johns, Empirical Reflections: A Statistical Evaluation of Bar Program Interventions, 54 University of Louisville Law Review 35 (2016)

We found that LSAT and bar exam scores share about 20% of variance . . . 1LGPA and bar exam scores share about 40% of variance . . . and GLGPA and bar exam scores share about 50% of variance . . . . In sum, traditional law school variables share a moderate to strong relationship with bar exam scores but still leave nearly 50% or more of bar exam scores explained by other variables.

Katherine A. Austin, Catherine Martin Christopher, & Darby Dickerson, Will I Pass the Bar Exam?: Predicting Student Success Using LSAT Scores and Law School Performance, 45 Hofstra Law Review 753 (2017)

For first-time bar exam takers, linear regression was conducted to determine whether Texas Tech Law final GPA predicted an individual’s bar exam score. Final law school GPA significantly predicted bar exam performance . . . .

Roger Bolus, Performance Changes on the California Bar Examination: Part 2 (2018)

Based on the results of over 7,500 examinees sitting for the CBX in 2013, 2016 and 2017, the single best indicator for predicting success on the CBX was the final law school GPAs of candidates. This result, while important, is not surprising: students who excel on law school exams would be expected to perform well on the bar as well. Overall, the statistical models developed below which include examinees demographic characteristics, pre-admission credentials and law school performance predicts more than 54 percent of the variability in CBX Total Scale scores. By social science standards, this degree of predictive power is reasonably strong, and well in-line with findings of past efforts in this area.

Amy N. Farley, Christopher M. Swoboda, Joel Chanvisanuruk, Keanen M. McKinley, & Alicia Boards, Law Student Success and Supports: Examining Bar Passage and Factors that Contribute to Student Performance, AccessLex (2018)

More specifically, the post-1L [GPA] model accurately identified 58% of failers, and the most comprehensive post-3L [GPA] model accurately detected nearly 4 out of 5 students who would fail the bar.

Robert R. Kuehn & David R. Moss, A Study of the Relationship Between Law School Coursework and Bar Exam Outcomes, 68 Journal of Legal Education 623 (2019)

Similar to other studies, performance in law school, measured by LGPA, bears the strongest relationship to bar exam outcomes at [Washington University in St. Louis and Wayne State]. Yet LGPA explains only approximately twenty percent of the variability in bar passage rates among graduates. One notable finding at both schools was the correlation coefficient between first-year and final law school grades--above 0.92. This high correlation strongly signals at the end of the first year which group of students is most likely to fail the bar exam and therefore might merit additional assistance over the next two years.

Barriers facing a Kanye West 2020 presidential run

It’s hard to know how seriously to take a tweet from Kanye West. On July 4, he tweeted, “I am running for president of the United States!” Sadly, “journalists” from outlets like Reuters and ABC News chose not to investigate and simply engaged in the embarrassing contemporary practice of reciting a tweet as if it’s news, without, say, you know, engaging in journalism (e.g., investigating, interviewing relevant parties, reporting, etc.).

I doubt it’s serious, but for the good reason that even if it’s earnest, it’s still probably not serious. Ballot access remains a real issue for a presidential candidate at this late date. Mr. West would have two viable paths.

The first is to co-opt an existing political party’s presidential nomination. It seems unlikely the Democratic or Republican Parties would do so, nor the Libertarian Party, which formally has a nominee. Other parties like the Green Party, Constitution Party, or Reform Party are at various stages of their nominating process, and they’re unlikely to appear on the ballot in all fifty states and D.C. I suppose it’s possible, but this process seems unlikely.

The second is to run as an independent candidate. (A related path would be to establish a new political party, but this is more complicated and something I’ll dismiss for the moment.) This requires the Herculean effort of securing ballot access in all fifty states and D.C. One doesn’t need to get on the ballot everywhere to win the presidency—in theory, access in 270 electoral votes’ worth of states is enough. But, to be frank, there’s a material difference, in my view, between serious independent candidates like John Anderson in 1980 and Ross Perot in 1992, and unserious independent candidates like Lyndon LaRouche in several elections and Evan McMullin in 2016—breadth of a campaign to every (or nearly every) state lends seriousness to the ticket. And while write-in candidates should not be easily dismissed in local or even statewide elections, presidential candidates seem hard to take seriously.

(It’s worth noting that while I’ve seen the claim that Mr. West’s name could be written-in “anywhere,” that’s not true—at least, not written in and counted anywhere. Several states do not recognize write-in votes for the president, which the Supreme Court has acknowledged is legitimate if ballot access rules otherwise are not too onerous. Indeed, think how a presidential election works—one isn’t casting votes for the president, but for a slate of electors who’ll cast votes for that candidate when the Electoral College meets. A write-in campaign ought, I think, to require, at the very least, some pre-election filing of the slate of electors who’ll support that candidate, given that the ballots in most states don’t list the electors. And frankly, several states don’t have rules about even this while purporting to authorize write-in presidential votes.)

The ballot access deadline has (in theory—more on that in a moment) already passed in Texas, Indiana, Maine, New Mexico, New York, and North Carolina. Other ballot access deadlines arise in the next couple of weeks for some states. Off the top, Mr. West would be hard to take seriously, even if, today, he had amassed an army of signature-gatherers to canvass the remaining states (and challenges for signature-collection seem exacerbated during a pandemic). Some of these efforts seem tough at this stage—like Florida’s 132,000 signature requirement by July 15.

In theory, for two reasons. I borrow deadlines from Ballotpedia, and maybe they’re not all up to date. But that’s in part because many states have been pushing back their ballot access deadlines by legislative rule or executive order due to the coronavirus pandemic. Some have lowered signature requirements, and there have been rumbling about moving to online signatures in places. States like New York have shown willingness to be more generous. It’s possible, then, that pending or apparently-passed deadlines may not have yet actually passed.

Another is that Mr. West could litigate, a la John Anderson in 1980. Federal courts have been using flabby balancing tests to justify giving independent or minor party candidates additional opportunities to secure ballot access when the rules are too restrictive—and courts seem increasingly willing to do so during the coronavirus pandemic. Nevertheless, winning several kinds of challenges in different federal courts (absent Supreme Court intervention), all ahead of Election Day, seems not only to require extraordinary legal coordination and preparation (something a tweet on running a campaign seems to lack), but also extraordinary levels of success. UPDATE July 6: The Fourth Circuit has recently affirmed North Carolina’s exceedingly early March 3 independent presidential candidate petition deadline.

I’m sure some will speculate about which major party candidate Mr. West’s candidacy would most affect, whether his appearance on the ballot in certain states but not others might alter the Electoral College, and so on. My point is rather this—it’s hard to take a candidacy announced this late terribly seriously because, to be a serious candidate, one ought to appear on the bulk of ballots in the United States, and candidates announcing at this late date have little chance of doing so.

It’s also true, of course, that even an unserious candidate like Messrs. LaRouche and McMullin could disrupt a presidential election—playing a “spoiler” role in select states, and so on. That’s different than how I’m using the term “serious,” but, of course, I recognize that this may be the greater concern for many political watchers.

This post has been updated as new information arises.

UPDATE July 7: As of early July 7, there is no indication of any attempt by Mr. West to gather signatures in any states, which suggests, as this opening paragraph provided, that a tweet is not newsworthy.

UPDATE July 8: This free-wheeling interview at Forbes shows a couple of things. First, while he coins the name “Birthday Party,” his bid would assuredly be an independent one, and the “party” affiliation would be informal, at least for 2020. Second, Forbes reports, “For much of the phone calls, his core message, strategically, was that he has 30 days to make a final decision about running for president. At that point, he says, he’d miss the filing deadline for most states, though he believes an argument could be made to get onto any ballots he’s missed, citing coronavirus issues.” This reflects a seriousness I hadn’t anticipated—as I explained earlier, some ballot access deadlines might be feasible to make up given the coronavirus. But, 30 days as a “final decision” suggests that he’s not trying to get on the ballot today, which, as I noted in my July 7 update, seems strange and hard to justify. While coronavirus issues can help him make up some ground in some states, the more state deadlines slip away, the harder it is to meet them. Starting a run in early August—that is, starting signature-gathering then—would not be feasible.

UPDATE July 14: Ben Jacobs reports that there were some fits and starts of an attempt at ballot access in at least Florida and South Carolina, but it appears those have ended.

UPDATE July 15: Mr. West has filed an independent candidate statement in Oklahoma with a slate of electors.

Three curiosities of Oregon's diploma privilege rule for the 2020 bar exam

On the heels of Utah and Washington, Oregon has announced it will enact a form of diploma privilege. Oregon’s rule is closer to Utah’s than Washington’s—like Utah, it extends only to first-time test-takers who recently graduated from ABA-accredited schools, with some caveats. I had my analysis on Utah’s proposal then, with some “heat and light” reactions to it. But I wanted to highlight three curiosities.

First, it expressly treats Oregon schools differently from out-of-state schools. From the rule:

Granting a one-time "diploma privilege" to persons who timely submitted complete applications for the July 2020 Oregon bar examination and who either (1) graduated in 2020 from one of the three Oregon law schools; or (2) graduated in 2020 from any other law school accredited by the American Bar Association that had a minimum of 86 percent of graduates pass a 2019 Bar exam on their first attempt. All character and fitness requirements continue to apply.

Among Oregon’s three schools, only the University of Oregon (86%) had a first-time passing rate that met or exceeded the 86% threshold. Both Lewis and Clark (81%) and WIllamette (82%) would have failed the standard. Utah’s rule was an 86% threshold that applied to everyone, but one that both Utah schools met. It’s not clear how such in-state favoritism will be received. But, as I noted in the Utah proposal, recognizing diploma privilege for about a third of all law schools is generous compared to in-state only practice.

Second, it uses the 86% standard, and I don’t know where or why. The first-time pass rate for the July 2019 exam was 84%. That’s lower if you count the February 2019 exam results, too. Did Oregon just use the 86% Utah used? Maybe? Given that Utah and Oregon use different cut scores, it seems extra strange. (If someone has more information, please share! I’m dealing with a second-hand report here!)

Third, the 86% standard seems even less justifiable given that Oregon is announcing a temporary reduction in the cut score from 274 to 266. That moves Oregon from one of the highest in the country to at the bottom end of average. Schools that historically have a sub-86% pass rate would assuredly do better on this exam than their overall pass rate would otherwise suggest. (Conversely, however, and undermining my own point, the pass rate should also increase in this administration, so perhaps it accounts for the fact that the test will be easier and therefore a school’s cumulative pass rate should be accordingly higher.)

In any case, I think both Utah and Oregon recognize that first-time test-takers pass at overwhelmingly high rates in their jurisdictions, and the cost of a handful of additional admitted attorneys outweighs the consumer protection concerns. Washington’s rule, in contrast, would admit far more who failed the bar once, or even multiple times. It remains to be seen what long-term effect this has, or whether other jurisdictions adopt similar proposals.

But both Utah and Oregon emphasize that overall pass rates matter a lot for out-of-state benefits. Schools with relatively high pass rates in tougher jurisdictions like California and Virginia won’t reap the benefit unless they can secure more success for their students in absolute terms.

UPDATE: I’m usually pretty generous with the comments for posts, but this one has prompted some bickering and I’ve trimmed back on them.