Proportional representation not required in union representation under guarantee of "fair and democratic elections"

That’s the finding from the First Circuit in its recent decision in Conille v. Council 93. The challengers sought equal (something akin to “one person, one vote” or proportionate representation in the makeup of elected vice presidential positions. While some of the selection of representatives were not in dispute, here’s how the court framed the mechanics of the disputed election mechanism:

To choose the vice presidents, Council 93's constitution divides the locals into thirteen legislative districts -- nine geographic and four organizational. These legislative districts do not have independent governing bodies; rather, they function solely as a way to divide delegates to nominate and elect members of the executive board. The Council 93 constitution allocates a specific number of vice president positions to each legislative district. The number allocated to each district bears little, if any, relationship to the number of members in that district. Rather, the allocations are artifacts of agreements made over time as locals have joined the Council. For example, a single vice president is chosen by the delegates representing over 1,800 members in the Vermont district, while four vice presidents are chosen by the delegates representing 1,500 employees in a “Department of Mental Health” legislative district. It is this type of disproportionality that triggers plaintiffs' displeasure.

The core of the dispute turns on construction of terms in the union’s constitution, and courts defer to the union’s interpretation, so winning a “one person, one vote” or proportionality claim would be difficult. But here’s the court’s analysis:

In the alternative, plaintiffs contend that the structure of Council 93's Executive Board violates the AFSCME constitution, particularly Paragraph 4 of its “Bill of Rights,” which provides that “[m]embers shall have the right to fair and democratic elections, at all levels of the union. This includes due notice of nominations and elections, equal opportunity for competing candidates, and proper election procedures which shall be constitutionally specified.”

. . .

The merits of plaintiffs' claim under the AFSCME constitution turns on the question of the proper interpretation of Paragraphs 4 and 7 of the constitution's Bill of Rights. When reviewing a union's interpretation of its own constitution, we defer to that interpretation unless it is plainly unreasonable. . . .

We begin with the constitution's text . . . noting at the outset the absence of any express guarantee of equal or proportional representation on its executive board or on any of its or its subsidiaries' governing bodies, including the subsidiaries' executive boards. This silence contrasts with the text of paragraph 7 of the AFSCME Bill of Rights, which states that “[a]ll members shall have an equal right to vote and each vote cast shall be of equal weight” specifically on issues pertaining to the collective bargaining of contracts, memoranda of understanding, agreements affecting members' wages, hours, or any other terms of employment. The union thus knew precisely how to require equally weighted votes on an issue within the constitution if it wished to do so; instead, it chose to use only the term “fair and democratic” when referring to how elections of its officers must be conducted.

So, we ask if this term by itself renders supererogatory the need to include explicitly the right to proportional representation or an equal vote. See Ramos v. Louisiana, ––– U.S. ––––, 140 S. Ct. 1390, 1400, 206 L.Ed.2d 583 (2020) (suggesting that, with respect to certain rights, the absence of an explicit grant of that right in the text of the Constitution does not imply the right does not exist, but rather, supports the inference that the right “was so plainly included” that stating it explicitly would be “surplusage”).

We think that it does not. We can assume the term “democratic,” by itself, implies a relatively equal right to vote on such matters as one is entitled to vote on, but it is too much of a stretch to say that it must also imply proportional representation on the executive board. The United States is generally considered to be a democracy in normal parlance, notwithstanding the effectively disproportionate representation in the Senate and the Electoral College. See Lyman v. Baker, 954 F.3d 351, 371 (1st Cir. 2020) (“The United States' system of representative democracy [includes] ... the Electoral College and ... Senate.”). Similarly, the term “fair” may suggest some restraint on the procedures used for voting. Paragraph 4 thus requires, as examples, “due notice of nominations and elections, equal opportunity for competing candidates, and proper election procedures which shall be constitutionally specified.” While this list is non-exhaustive, it would have been rather simple for the union to include within it the requirement of equal or proportional representation on all governing bodies, as it did in Paragraph 7 for labor concerns and within this paragraph for competing candidates. Yet, it did not.

The defendants' position that the voting system used to select officers of Council 93's executive board is fair finds further support in the fact that those procedures themselves are approved and subject to change by the convention, in which voting is weighted just as plaintiffs would have it be -- proportionate weight is assigned to the votes of convention delegates based on the number of members represented.

Moreover, the actual behavior being challenged is not precisely an undemocratic or unfair election as a result of an unequally weighted vote. In choosing delegates to the Council 93 convention, union member votes are weighted equally, and these conventions, like a parliament, carry out many of the important legislative powers of the union. Similarly, the five senior officers on Council 93's executive board are chosen according to an equally weighted vote of convention delegates, in much the way that a prime minister might be chosen by a parliament composed of equally weighted votes. It is only the selection of vice presidents to represent the legislative districts that is being challenged.

We have a difficult time saying that the members' right to “fair and democratic elections” necessarily guarantees equal representation on this subordinate body of executive officials. That a cabinet may be made up of appointed officials who do not proportionally reflect the full constituency does not mean that the underlying election was not fair and democratic. The constitutional clause at issue here guarantees only that, when members vote, the process is fair and democratic. The plaintiffs have not contended that their actual elections are otherwise, only that every officer must proportionally represent the constituency. As to that contention, they point to nothing in their constitution that imposes that requirement on Council 93 or any of AFSCME's subordinate bodies.

AFSCME itself also allocates seats and voting for positions on its own executive board in a manner that belies equal representation of every union member, as plaintiffs concede. Although plaintiffs suggest that the ASFCME executive board is somehow more proportional because it is a “hybrid house-senate-like” system, this is nothing more than a particular type of disproportionality. And plaintiffs do not offer any basis in the AFSCME constitution to suggest how much proportionality is enough to be “fair and democratic.” One would expect to find some good reason why AFSCME would view its constitution as outlawing a practice by the Council that it allows itself. Plaintiffs offer no such reason, and we are not willing to create one sua sponte, especially where we are to defer to AFSCME's reasonable interpretations of its constitution. . . . cf. Coleman v. Miller, 307 U.S. 433, 454-55, 59 S.Ct. 972, 83 L.Ed. 1385 (1939) (holding that a “lack of satisfactory criteria for a judicial determination,” inter alia, favors deference to other bodies in deciding what counts as a “Republican Form of Government”).

Of course, the district court reasoned that the voting structure need not be precisely proportional but should at least have “some neutral principle that justifies weighted voting,” and it found no such rationale besides a “hodge-podge of historic deals.” But negotiation and deal-work are the very heart of what unions do. In fact, plaintiffs imply the need to allow unions to make such compromises by suggesting that AFSCME's executive board representation is not problematic because it is like the U.S. House and Senate, which itself is nothing more than an historic deal. See Ronald J. Krotoszynski, Jr., Reconsidering the Nondelegation Doctrine: Universal Service, the Power to Tax, and the Ratification Doctrine, 80 Ind. L.J. 239, 252 (2005) (discussing how the apportionment of seats in the U.S. House and Senate was part of a complicated “deal” involving the balance of power between competing factions). While we recognize that Council 93 is constrained in the deals it can negotiate by the AFSCME constitution, we are hesitant to retroactively read the terms “fair and democratic” to invalidate the bargained-for exchanges that the union members agreed to over the years, especially when AFSCME has made no indication that it believes the term carries such weight and has opted not to restrict its councils in this way. If AFSCME had wanted to tie the hands of its councils in this matter, it certainly could have stepped in and chosen not to approve the provisions in the Council 93 constitution incorporating these deals. Its acquiescence is entitled to some consideration.

A survey of the broad scope of the proposed New York diploma privilege law

A10846 is a diploma privilege bill working its way through the New York legislature. After unsuccessful postponements and questions about how an online version would work, there’s been renewed urgency to help license attorneys in one of the largest and most significant legal jurisdictions in the United States.

I’m sympathetic to some calls for diploma privilege in some jurisdictions in the current environment—but I do think some tailoring is appropriate, as I’ve written. While Washington’s diploma privilege struck me as potentially overbroad, the current text of A10846 far exceeds it, and it’s worth looking at its scope—and what might be amended out of the bill later.

New York does not have a particularly difficult bar exam. And one could look at its July 2019 statistics as a window into what rules for a temporary diploma privilege might look like. Among first-time test-takers from ABA-accredited schools, 86% passed—4748 out of 5517 test-takers. That’s a high pass rate. Of course, it means 769 didn’t pass, and a diploma privilege for all first-time test-takers from ABA-accredited schools would sweep them in, too. As emphasized in my previous writing, however, maybe that’s a tradeoff New York is willing to make, and maybe one could have more robust follow-up of this cohort to try to minimize misconduct or malpractice.

If one took a broader view, more like Washington, to all test-takers, first-timers or not from ABA-accredited schools, it would bring in another 990 test-takers from the July 2019 bar exam. Only 28% (272) of those repeaters passed, so it would add 718 graduates who failed the bar exam multiple times. Again, maybe a tradeoff worth taking in the larger picture.

New York’s bill goes further still. It would extend to “any person who has graduated or will graduate from an American Bar Association accredited law school or who would otherwise be eligible to take the New York state bar examination.” (Emphasis added.) That last clause is significant because New York has a significant cohort of foreign-educated attorneys that take its bar exam each year.

In the July 2019 exam alone, for instance, 2398 foreign-educated test-takers took the bar exam for the first time, but just 1266 passed, a 53% pass rate. Another 1161 repeated the bar exam, and 250 passed, a 22% pass rate. That means over 2000 foreign-educated test-takers failed the July 2019 bar exam. All would be admitted under this rule.

I’ve pointed out in the past how non-JD legal education is on the dramatic rise in American law schools, and how foreign-educated LLM degrees are on the rise. But bar passage rates remain low, likely in part due to language barriers. These test-takers remain a significant cohort of overall test-takers.

Unlike other states that have had temporary “emergency” diploma privilege rules, New York’s is not limited to those who previously registered for the July 2020 bar exam. It extends to all prospective attorneys, through September 30, 2021 (or until the end of the Covid-19 disaster, whichever is later), who satisfy the other requirements, like character and fitness requirements.

That could potentially sweep in many more attorneys who’d otherwise be eligible but have failed the bar exam in the past—they might be in New York (the law is limited to those “who intend[] to primarily practice in the state of New York”) and practice. If they complete “100 hours under the supervision of a permanently admitted attorney,” they would be eligible for permanent admission to the bar. (One hundred hours is two and a half 40-hour weeks.) That’s much lower than, say, Utah’s 350-hour supervised practice requirement.

In short, if enacted as written, it’s possible to see thousands of new attorneys in New York—perhaps much more than the equivalent of the 3500 who failed the July 2019 bar exam if one looks at the scope of the rule that might extend to other would-be attorneys who could otherwise meet the rule in the next year.

It’ll be worth seeing if New York enacts the law as written or amends it. Maybe it won’t be enacted at all. But if it is, it’ll be an even more significant experiment in attorney licensing than Washington’s rule, and emphatically one to watch.

Recent dissental track records in the Ninth Circuit

The “dissental”—an opinion dissenting from the denial of rehearing en banc—is a popular tool in the Ninth Circuit. The circuit is large, and it has historically seen high reversal rates before the United States Supreme Court.

I thought I’d look at recent dissentals in the Ninth Circuit, given the arrival of a number of judges appointed by President Donald Trump, and who joined them.

A few methodology notes. A judge may write a “statement” concerning the denial of rehearing en banc, or an opinion concurring in the denial of rehearing en banc; I include neither in this tally. I do not include those judges who publicly voted in favor of rehearing en banc but did not join the dissental. Only those who joined the (or one of the) dissentals are included.

I track 17 dissentals from January 1, 2019 to August 24, 2020. (UPDATE: Thanks to the astute observation of “@fedjudges” on Twitter, I missed a few the first time around!) Most Trump-appointed judges joined the court after January 1, 2019 (but there are some interesting late 2018 ones I exclude!). I include the dates they assumed office, but it’s not clear when, for instance, how quickly some would begin to participate on en banc votes (or feel comfortable joining a dissental after taking the bench). Those who have retired or taken senior status before today are listed as “others.” If the judge did not join a dissental, it’s in gray; if they did, it’s marked with an “x” and is in orange. I cleared out any shading for opinions released on the day a judge took office or earlier.

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You can click on the image to zoom in. Historically, Judges Conseulo Callahan and Sandra Ikuta have been among the most reliable dissental participants, with some regular voting from Judge Milan Smith, the only three President George W. Bush appointees left active on the Ninth Circuit. Among these fourteen cases with dissentals, there was one dissental joined by Judge Ronald Gould (a President Bill Clinton appointee) and one by Judge John Owens (a President Barack Obama appointee), and no other instances of a Democratic-appointed judge joining a dissental.

The bulk of joining (or writing!) dissentals has come from Trump appointees (with recognition that some judges joined the Ninth Circuit during this window).

Ryan Nelson: 12

Mark Bennett: 10

Dan Collins: 10

Bridget Bade: 9

Dan Bress: 7

Lawrence VanDyke: 6

Kenneth Lee: 5

Patrick Bumatay: 5

Danielle Hunsaker: 1

Eric Miller: 0

Details of the Biden campaign's concerns about Tammy Duckworth's eligibility as a "natural born citizen"

From this New York Times deep-dive:

Other candidates rose and faded in the process: Senator Tammy Duckworth of Illinois powerfully impressed Mr. Biden’s search team, but his lawyers feared she would face challenges to her eligibility because she was born overseas.

…

Ms. Duckworth was regarded by Biden advisers as among the candidates likeliest to help him achieve a smashing electoral victory in November. But legal advisers to the campaign expressed urgent concern that Ms. Duckworth could face challenges to her nomination in court: She was born overseas, to an American father and a Thai mother. While Mr. Biden’s team believed Ms. Duckworth was eligible for national office, campaign lawyers feared that it would take just one partisan judge in one swing state to throw the whole Democratic ticket off the ballot.

I don’t have strong thoughts on the merits of whether Ms. Duckworth is a “natural born citizen.” And even if 2020 was relatively quiet on natural born citizen challenges (until recently!), it’s interesting to see the political process play out here.

I’ve highlighted that there are several bodies that can ascertain candidate eligibility outside the judiciary: the voters, presidential electors, and Congress. Political parties are a good addition. But perhaps it’s worth adding a category for vice presidential candidates, as the nominee and his team can make judgment calls about eligibility, too.

But, disappointingly, the campaign lawyers made a pessimistic call. My work strongly resists the call for other bodies—particularly judges—to review candidate eligibility. Indeed, I’ve written extensively about that. I think many times there are not rules in place to even allow courts to review a candidate’s qualifications. A declaration from Congress could go a long way to ensure that a candidate’s eligibility is not questioned elsewhere. I think most states don’t have statutes in place to authorize review of candidate qualifications, and, indeed, I think they shouldn’t. And there’s always appellate review—granted, one challenge of late-breaking litigation (like naming a vice presidential candidate in August when ballot printing begins in a matter of weeks) increases risk and uncertainty.

Furthermore, it’s also a fundamental weakness of the National Popular Vote. Could one state exclude a candidate from the ballot? And if so, doesn’t that throw off the “national” popular vote total? Absolutely.

In short, it’s a highly cautious, litigation-avoidance strategy that kept (at least in part) Ms. Duckworth off the ballot. It’s worth considering whether a veepstakes that took place earlier could have successfully resisted litigation that might have challenged her eligiblity.

Justice Kavanaugh mentions allocation of power over elections in Calvary Chapel dissent

I’m a little late to this (as I’ve been in the midst of a cross-country move!), but I wanted to highlight a passage from Justice Brett Kavanaugh’s dissenting opinion in Calvary Chapel v. Sisolak. The case was about whether regulations opening some businesses but not allowing churches to open were permissible, which I won’t rehash here. But I did want to highlight one portion of his dissenting opinion:

I agree that courts should be very deferential to the States’ line-drawing in opening businesses and allowing certain activities during the pandemic. For example, courts should be extremely deferential to the States when considering a substantive due process claim by a secular business that it is being treated worse than another business. Cf. Jacobson v. Massachusetts, 197 U. S. 11, 25–28 (1905). Under the Constitution, state and local governments, not the federal courts, have the primary responsibility for addressing COVID–19 matters such as quarantine requirements, testing plans, mask mandates, phased reopenings, school closures, sports rules, adjustment of voting and election procedures, state court and correctional institution practices, and the like.

(Emphasis added.) Professor Josh Blackman highlighted that this mention of elections was “not inadvertent.”

This is not a gloss on any notion of the Purcell principle, which says that federal courts should be particularly reluctant to issue orders affecting elections close in time to the election that may result in voter confusion. Earlier this spring in RNC v. DNC, it figured prominently (if disputably).

But those timing-based concerns are different from the recognition that “state and local governments, not the federal courts, have the primary responsibility.” The default power over the times, places, and manner of holding congressional elections is left with the states, unless the federal government chooses to enact legislation on the topic. For state elections, there’s even less for the federal government to do. And while the federal courts have increasingly relied on the Anderson-Burdick framework as a kind of catch-all opportunity for federal review of election rules, some federal courts have begun to push back. Justice Kavanaugh’s inclusion of this phrase suggests a similar reluctance.

Kamala Harris's other presidential eligibility question (and yes, she's qualified)

I noted earlier that 2020 has proven (so far) to be a quiet year for “natural born” citizen challenges. Senator Kamala Harris of California briefly ran for the Democratic presidential nomination, and she’s been named former Vice President Joe Biden’s running mate. It might lead to a flurry of challenges to her eligibility, as she was born to two (possibly) non-citizen immigrants (the details are thin about when her parents became citizens) in California. That, I think, makes her a “natural born citizen,” as Professors Eugene Volokh and Michael Ramsey point out. She must meet these qualifications because, as the Twelfth Amendment provides, “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

But I wanted to highlight another eligibility question (and spoiler alert, despite my clickbait-y headline, she’s qualified). The President must be “fourteen Years a resident within the United States.” Ms. Harris moved to Canada as a child, and she attended and graduated from high school there.

One ambiguity is whether this means fourteen consecutive years (including the fourteen most recent consecutive years) or fourteen cumulative years. Practice has long recognized it to be cumulative. Thomas Jefferson’s stint in France before serving as Vice President and President (before the Twelfth Amendment, but still a requirement to receive votes as presidential candidate), or Herbert Hoover’s service in London before his term in office, suggest as much. Alternatively, one might say that they were still “residents” of the United States, as it was the last true, permanent home with the intent to remain indefinitely, even if time away moved them abroad. Ms. Harris’s example seems less like Messrs. Jefferson and Hoover in that regard—she moved out of the country, established residence elsewhere, and later moved back to the United States.

Regardless, even if she was a resident of Canada for several years, she easily meets fourteen cumulative years as a resident of the United States. And, more to the point, actually, she meets fourteen consecutive recent years, as she attended college and law school in the United States in the 1980s, easily meeting thirty-plus years’ residency in the United States.

Regardless, her candidacy, like that of Canadian-born Senator Ted Cruz, offers a little something to test out the existing presidential qualifications framework.

Diploma privilege 2.0

While there’s a renewed effort afoot for diploma privilege (either on a one-time emergency basis or on a long-term basis) in lieu of the traditional written bar exam, it’s worth considering that this new version of “diploma privilege” looks nothing like the traditional “diploma privilege” of places like Wisconsin, or as recently abolished in states like Montana. For lack of creativity, I’ll call the new movement “diploma privilege 2.0.”

The bar exam predates law school, tracing back in the United States to 1763. But recent historical “diploma privilege,” or admission to the bar upon securing a diploma from a recognized law school (with other conditions, of course, like passing the character and fitness examination) had a couple of hallmarks. First, it was expressly designated to benefit in-state schools. And second, it was designed around a model of education in which the juris doctor diploma was granted on the condition of learning a certain body of in-state law.

It’s worth going back to recent history abolishing diploma privilege (err, “diploma privilege 1.0”) in some jurisdictions. Consider this justification in Montana in 1980: In the Matter of Proposed Amendments Concerning the Bar Examination and Admission to Practice of Law in the State of Montana, 187 Mont. 159 (1980).

There is no substantial or acceptable argument for retention of the diploma privilege. Its primary purpose has long since ceased to exist i. e., incentive to attract students to a small law school as it struggles to gain recognition in the legal community or the common argument that the last quarter of law school must be devoted to preparing the student for the bar examination which is a detriment to their normal course of study.

There is, in fact, a double standard created by the diploma privilege and the Bar examination as it relates to admission to the Bar in Montana. This standard goes beyond the courses offered in the law school and given on the Bar examination. It is the fact that the diploma privileged person enters the job market in June, whereas a Montana resident forced to attend an out-of-state law school must wait until October to take the examination, and in some cases does not pass fairly enough, many people have elected to attend schools outside the State of Montana. It is also noteworthy that the University of Montana School of Law is no longer struggling. It is turning away many, many students who are Montana residents and who would like to remain here to go to school. Also, we should be encouraging our young people to go to other schools outside the State of Montana for the diversity of educational background and the intellectual exposure which is essential in a free society. There is no doubt that the University of Montana School of Law is very good, but concentrating Montana graduates into the Montana Bar becomes dangerously parochial.

The effect of a diploma privilege on the student and on the faculty of a law school that extends the privilege is subtle but sometimes harmful. There exists the possibility of abuse and the standards of the law school may be affected by the fact that nobody really does his best until he has to. Knowing that their students are not to be examined, some professors may be prone not to put forth their best efforts, or at least a better effort than they did the previous year teaching the same course. Under some circumstance, the curriculum can be adjusted to teach the students what they want the students to know, and there is nothing in the world to prevent this.

E. Marshall Thomas, the former chairman of the National Conference of Bar Examiners, makes the point that even though all subjects were the same on the school curriculum and on the bar examination, it would still not be an idle act to require that they take the examination since it serves a real additional purpose. The fact that the law student knows he must face the Bar examination after graduation and before admission to practice is a healthy, educational stimulant. Mr. Thomas further contends that it is also a stimulant to the law school faculty to maintain high standards of legal education because the faculty knows that their students will be examined by state authorities. He says that the Bar examination serves an additional function in that the Bar examination has one essential difference from the law school examination it is a comprehensive examination covering the entire field of several years of law study.

Further, the American Bar Association has taken a positive, clear and very hard stand against the diploma privilege in connection with the standards of legal education and A.B.A. approval of law schools. Further, there are very few jurisdictions left which permit this kind of privilege. The A.B.A. Section of Legal Education and Admission to the Bar is very strong in its opinion that graduation from a law school should not confer the right of admission to the Bar and that every candidate should be subject to an examination by a public authority to determine his/her fitness.

The University of Montana School of Law has stressed that the Supreme Court members, or rather two of them, are on the Board of Visitors and can oversee and control the curriculum of the school. The A.B.A. says that this is not right, that there is no public officer or officers or departments who control the curriculum of any school. Their job is to see that the school turns out properly educated people who can adequately serve the public. Any attempt to control curriculum content would be an unfortunate limitation on the educational freedom of the school and could not be tolerated in the name of the diploma privilege.

It follows then that to reach our ultimate goals, the diploma privilege must be eliminated. However, at that time, those students who have applied and will be accepted or are accepted or are in the law school when these changes are made, will be given the benefit of all privileges held out to them, i. e., a grandfather-type concession will be afforded to those with any remote contractual right to be a beneficiary of the diploma privilege, as set forth above.

This Court orders the diploma privilege abolished in conjunction with the other changes to be made in our qualifications and admission to practice.

One can judge whether the reasons for or against the privilege are persuasive (it reflects, for instance, a distrust of law schools that I’ve highlighted elsewhere). But I wanted to highlight a few of the points: in Montana, for instance, the privilege was overtly designed to advantage the in-state school over out-of-state schools, and it ended up advantaging in-state enrollees in the job market, too. Another is that the Montana Supreme Court viewed it as inappropriate to try to control the specific curriculum of the law school to ensure that there would be the advantage of diploma privilege of in-state law school graduates.

Wisconsin adheres to this old tradition, if somewhat inconsistently—state bar controlling the curriculum (to a degree), an advantage for in-state graduates, a focus on state-specific law.

This in-state v. out-of-state makes sense in an old regime of thinking about law, in times with less interstate litigation and greater common law variation. Today, however, we have increased mobility, increased uniformity, increased specialization, and such a wide body of law that we expect attorneys to look it up rather than assume they’ve memorized it all—or, more to the point, memorized it all before practicing. Having a generalized knowledge of a single state’s law feels less typical than it might have been decades ago.

Recent developments in written bar exam have moved this way. The Uniform Bar Exam, put forth by the National Conference of Bar Examiners, has sought to make bar exam scores more easily transferred across jurisdictions. It’s much easier to become licensed in multiple states with the UBE. But the UBE, of course, is an emphasis on uniform. It’s hardly ensuring that recently graduates have a (memorized!) body of state-specific knowledge for a given jurisdiction, as the old bar exams might have emphasized. (But it still requires memorization and understanding of law, even if, for some areas, it’s a bit of a fictitious amalgam of common law!)

Indeed, a recent New York task force called for returning to more state-specific knowledge, pushing back against the NCBE’s UBE move. For the reasons I note above, I’m skeptical about this proposal—particularly as the report relies heavily on “anecdotal” evidence that new attorneys don’t know enough New York law to practice in the state. (It would be interesting to try to measure new lawyers’ abilities to handle certain tasks within months of being licensed and whether any disparities in ability exist; and whether those disparities, if they exist, disappear in a relatively short period of time. But, as far as I know, no one is trying to study or measure that.)

The recent push for “emergency diploma privilege” has led to Utah, Oregon, Washington, and Louisiana to offer forms of diploma privilege, but in ways that did not exclusively advantage in-state graduates. Utah and Oregon privileged both in-state graduates and a good chunk of out-of-state graduates; Washington and Louisiana privileged essentially all ABA-accredited graduates. And they did not condition admission to the bar on learning a body of state-specific knowledge—but there are conditions, like, say, in Utah, where admissions is also conditioned on a stretch of supervised practice, which may include some of the state-specific learning one may desire.

(Indeed—and this is an open question!—is this the first time in history that a state offered diploma privilege to out-of-state law graduates? I’m not sure. But I’d be interested to find out if there’s a law school historian out there!)

UPDATE: There’s plenty of interesting history out there! Oregon once had a kind of “reciprocal” diploma privilege, offering it to graduates of any school whose home state would offer them diploma privilege. Texas had an exemption that included out-of-state schools. So, there are other historical examples—just none in recent years.

Earlier, I tried to disaggregate the emergency diploma privilege and the longer-term diploma privilege proposals. I highlighted a point I raised a year ago, that bar exams are, I think, in part about distrust that state bar licensing authorities have with law schools—that is, that state bar licensing authorities think law schools do not have the admissions, retention, and graduation standards that would allow all JDs to become licensed attorneys. It could be other reasons, of course—one may think, like the New York task force, and contrary to my views, that learning some state-specific body of law is important, etc.

In that older post, I suggested some smaller states could learn to trust their in-state law schools again if they worked closely with one another—and not to control the curriculum with state-specific knowledge, but to ensure that all the graduates were capable of practicing law. But I think I would want to reflect on such a proposal to be broader—and that’s hard to do. That is, it shouldn’t just be a privilege for the one or two or three in-state schools that the state bar licensing authority trusts. It should be open to a broader set of schools. But how?

Proponents of this new diploma privilege put their cut-off at ABA accreditation, but I think that’s not sufficiently narrow—that is, sadly, the ABA accreditation process is not designed to ensure schools graduate cohorts competent to practice law, a reason its accreditation rules are tied to, say, a 75% ultimate bar passage rate (not 100%!), or recognition that many graduates never practice law. And it’s beholden to other interests, like the DOJ. ABA accredited schools face probation or, in recent years, closure for failing to maintain standards.

In short, there has to be a way for state bar licensing authorities to determine whether in-state and out-of-state law schools both have the admission, retention, and graduation standards that would entitle them to diploma privilege. That’s a much trickier concept to sort out. But I think it’s the better approach. Rather than favoring in-state schools with conditions of learning state-specific bodies of knowledge, a more generous “diploma privilege 2.0” would look at all schools nationwide without such conditions. But filtering out which is a sticking point for this too-long blog post! Utah and Oregon set the cut-off at schools with an 86% first-time bar passage rate in 2019. That won’t work if the bar goes away as a reference point. Maybe it’ll take a new licensing authority, something other than the ABA, to offer diploma privilege-certified schools. But that also feels like a lot of effort. In short, I don’t have great ideas—just identifying that it’s a different system than the old one and one that, I think, requires some different thinking.

Cautious but eager to return to a hybrid law school classroom in the Fall 2020 term

There’s tremendous variance in risk tolerance in the United States right now, and higher education is no exception. Some press for online/distance/remote education for the Fall 2020 term and maybe beyond, perhaps indefinitely until there is an adequately-effective vaccine for coronavirus made widely available. Others push to reopen and return to as much a sense of “normal” as is feasible, the sooner the better.

I won’t rehash all the debates or the points, except that I find myself in the middle of it all. I’m cautious about all the reopening plans, but I have to say that I’m also eager to return.

I’ve had my toe in three different universities in the last several months. Each had different approaches, but each spent agonizingly long periods of time consulting with, among others, faculty in determining reopening plans. (It also distinctly highlights the privilege of faculty positions, where months away from campus and much consultation are conditions for return, instead of, day, grocery store employees or delivery drivers, who essentially showed up to work throughout the pandemic without such luxuries.) All reached different solutions. Not everyone agrees, of course (and one need only browse Twitter or read media reports), about the solutions. But I’ve found institutions to be as accommodating as possible while considering a wide variety of needs—students, staff, faculty, and the public, among others.

The opportunity to return to the classroom this fall is a new challenge but one I’m embracing. I thought I’d briefly sketch my “hybrid” approach and its planned implementation this fall.

(By the way, I cannot offer enough praise for Professor Jessica Erickson’s tireless and comprehensive look at remote and physically distanced teaching over at PrawfsBlawg. It is essential reading!)

My law school has a “hybrid” approach where it will be one week in the building in person, one week online. First-year students will be in the building for odd weeks, and upper division students will be in the building for even weeks. They’ll alternate for online courses the other weeks. (Some courses are exclusively online to accommodate some students and faculty, too.) It allows for greater physical distancing and more effective use of classroom space, while allowing some of the in-person familiarity and camaraderie that online-only models lack.

It’s caused me rethink how the class looks—not just to think about speaking through a mask to other masked students (but, I’m grateful to see their entire faces online every other week!), but how to develop a rhythm of the semester making the most of both types of learning.

I’m teaching Election Law with a capped enrollment of 20 students. (That cap was quickly reached when it was announced my class would be partially in-person—the student demand for in-person course offerings is high!) I’ve decided to turn the semester into six two-week units (feasible as I develop my own course materials).

The first week will be an online introduction with readings and discussion.

The next two-week “unit” will be a topic, say, redistricting, or race and federal power over voting rights, or something like that. The first week of that unit is the in-class portion, with cases and background readings and discussion. I’ve found that this is the toughest part online—it’s hard to have a conversation, back-and-forth, etc. without being in a room together.

The second week is online. Some of the readings will be built around more contemporary topics (including 2020 topics), which, I think, will be easier to engage online and more naturally build upon what we’ve already done in-person (with better rapport). The last day of that week will be a practice problem or set of problems applying what we’ve learned, with breakout groups to test out a new hypothetical and its application. I’m sketching out a legislative drafting exercise, a litigation strategy session, a practice recount, a political ad vetting exercise—in short, some opportunities to get into smaller groups with more interaction, breaking up the monotony of online experiences, and providing some engaging, contemporary material.

I confess, this is exhausting work to develop and really limiting opportunities for other work this summer. But I am eager to see if it’ll provide better learning opportunities for everyone. It might be, of course, that this plan is blown apart by a surge in coronavirus cases—in which case, well, some of the in-person discussions would revert to online, suboptimal but perhaps necessary. And when we can return to “normal,” maybe some more of these exercises will become a routine part of my classroom experience. But it’s a reason I’m eager to return to the classroom—cautious, yes, and aware of risks, but looking forward to a new term and new opportunities to engage.

High-level implications: California Supreme Court reduces bar exam cut score from 144 to 139

Whew! A long time coming with a lot of implications about the ever-present debate about the “right” cut score. Here’s a few (ed.: hardly!) thoughts that come to mind.

First, California had the second-highest cut score (144), behind Delaware’s 145. (Even accounting for non-scaled score jurisdictions, it’s still probably the second toughest bar in the country). Lowering it 139 puts it behind Alaska (140) and Virginia (140)… and that’s it. So… from the second-toughest to the fourth-toughest.

California has basically permanently had a cut score of 144—it’s modified its scoring over the year, but this has been approximately the same over iterations of the test. Which is to say, lowering to 139 is a big change after several decades! (And I should add, still higher than the range of 133 to 136 proposed by many of California’s law deans in 2017.)

A recent standard-setting study suggested the cut score should remain roughly the same, consistent with historical studies in California, but it left open the possibility of a range of possible scores within an acceptable range. At the lower end, approximately two standard errors below the median recommended cut score of 143.9 (i.e., almost the same as the 144 existing cut score!) from the standard setting study, was a cut score of 139, consistent with a proposal from the state bar. This is the figure the California Supreme Court adopted.

So this 139 is not out of nowhere—it’s consistent within the range (admittedly, at the bottom of the range!) of options from the 2017 study. And it’s possible that score could change as the bar continues to examine the cut score in the future—but this will be a “permanent” change (i.e., not for this administration of the bar, like Oregon). I suppose one could chalk this up to a coronavirus-related change, but it is far more than that.

Second, it’s worth noting that despite being a relatively high cut score, California test-takers are typically more able than most test-takers, and the reduction will translate into significantly more attorneys. On the July 2018 bar exam, for instance, the mean scaled score was 142.8 compared to the national average of 141.1. Given that scores tend to follow a bell curve, this reduction in the cut score will sweep in a significant number of passers. For instance, a simulated cut score for the July 2016 bar exam of 139 increased the overall pass rate from 43.3% to 52.1%, with almost 800 new passers (many of these repeaters). It would also yield a 40% increase in the Black passing rate, 26.1% increase in the Hispanic passing rate, a 23.5% increase in the Asian passing rate, and 17.6% increase in the White passing rate.

Third, all else being equal, we would expect this particular cohort of attorneys admitted to the California bar (i.e., admitted with a score of between 139 and 143.9) to have an ultimate career attorney discipline rate of around 10% or so. All else being equal. It might be there won’t be the resources to discipline so many new attorneys (unless there’s increased funding). And California is also simultaneously (and rightly!) looking at proposals to improve concerns about attorney discipline. We’ll see if this affect ultimate career discipline rates.

This isn’t to say lowering the cut score is the wrong choice—it’s just to say that with any choice there will be tradeoffs. 90% of those attorneys won’t be disciplined over the course of their career, for instance (and one could ask whether discipline rates are the best or only measure of attorney competence, or whether discipline captures all harm to the public). And maybe better surveillance will minimize the risk to the public. Time will tell. (Sadly, it appears California hasn’t yet investigated with precision the relationship between bar exam scores and discipline—maybe it will now.)

Fourth, I can’t help but wonder if the reduction comes at a time as California has been losing ABA-accredited law schools at a sharp rate. The collapse in bar passage scores has particularly hit California schools. California has lost three ABA-accredited law schools in three years: Whittier in 2017, followed by La Verne and Thomas Jefferson, both of which became California-accredited schools in recent months. California nearly lost a fourth ABA-accredited school as Western State found a last-minute institution that saved it. I wondered back in 2016 if California would move in this direction to save schools. Maybe it’s a reason. I admit, it’s not in the letter and likely would never be publicly identified. But it’s certainly something that will help the remaining law schools.

Fifth, what will this mean for California law schools? To shamelessly borrow from an earlier post speculating on what would happen if the cut score were lowered to 139:

At least some law schools will admit larger classes. To the extent law schools were reluctant to admit larger classes because of concerns about bar passage rates, those schools will be more inclined to admit larger student bodies. Of course, there are still other reasons that schools may not increase their class sizes, or at least not substantially—they are concerned about their LSAT and UGPA medians for USNWR rankings purposes, they may be worried about finding meaningful legal employment for a larger number of graduates, and so on. But, at least one barrier in the admissions calculus has been partially removed.

Higher-ranked law schools may begin admitting more students that recently historically matriculated to lower-ranked law schools. That is, a new kind of competition may begin. In light of the thought mentioned above, it may not simply be that schools admit larger classes; they may be grabbing applicants who would have attended lower-ranked schools. This would exert downward pressure on lower-ranked schools in the event that competition for their prospective students increased.

Higher-ranked law schools may see improved racial diversity profiles among incoming classes, potentially at the expense of lower-ranked schools. This is good news for highly-ranked schools and students from racially diverse backgrounds. The lower score will tend to benefit racial minorities, as the data has shown that minorities fail the bar at higher rates. So highly-ranked schools can admit more diverse student bodies with greater confidence of their success. Of course, this will exert downward pressure on lower-ranked schools, who may see their diversity applicant pools dwindle or face pools of applicants with worse predictors than in past years.

Law schools will experience more price sensitivity from prospective law students. That is, the value of the law degree should decline in California, as the volume of attorneys increases and the price for lawyers drops. That should, in turn, make law students more skeptical of the existing value proposition of a law degree. Law schools that have relied on high tuition prices have benefited from the high bar exam cut score, because opportunities for attorneys have been relatively scarce; the drop in cut score will dilute the value of the degree and perhaps require some cost-cutting at law schools. This is not to say that an artificial constriction on the supply of lawyers is a good thing because it props up costs (in my personal view, I think it's quite a bad thing); but, it is to say that lowering the score will have the effect of making cost-sensitivity an increasing possibility.

California-accredited law schools will have opportunities to thrive. San Joaquin, for instance, would have a projected bar pass rate of 50% in 2017 if the cut score were lowered from 144 to 139. Lincoln Sacramento would have a projected bar pass rate of 47%. These exceed some ABA-accredited schools and start to look quite attractive to prospective law students. That’s particularly true given the tuition at these institutions, which is about half the typical ABA-accredited law school.

Negative impact in USNWR for elite schools, and positive impact in USNWR for more marginal schools. This category may not be immediately obvious to observers considering bar exam pass rates. That is, some might ask, wouldn't higher bar exam passing rates improve a school's USNWR profile? Not necessarily--particularly not if the overall passing rate increases.

USNWR measures bar pass rate not in absolute terms but in relative terms--the margin between a school's first-time passing rate in a jurisdiction and that jurisdiction's overall pass rates. If School A has a passing rate of 90% and School B 75%, showing some gap that's only part of the story: School A had a 90% rate in a jurisdiction with an overall rate of 60%, which means it actually did quite well; but School B had a 75% rate in a jurisdiction with an overall rate of 80%, which means it actually did poorly. USNWR measures that relative performance.

So if School A sees its passing rate increase to 93%, but the jurisdiction's overall passing rate increases to 85%, that's bad for School A in USNWR terms--its ability to outshine others in the jurisdiction has dwindled. In a state as large as California and with such a relatively low first-time overall passing rate, this gives elite schools an opportunity to shine.

Stanford, for instance, boasted a 91% first-time bar passage rate in a jurisdiction with a 56.3% first-time pass rate in July 2017, a 1.62 ratio. If the bar pass cut score is dropped to 139, the bar projects a first-time pass rate of 64.5%. Even if its pass rate increases to a projected 96%, its ratio drops to 1.49, a 0.12-point drop. The same holds true for institutions like USC (-0.08), UCLA (-0.03), and Berkeley (-0.06). These are just one (very small!) factor in the USNWR ratings, and these figures are ultimately normalized and compared with other institutions nationally, but it will marginally hurt each of these schools as an institution in the rankings--even though it might benefit a (relatively) small cohort of graduates from these institutions each year taking the bar exam.

In contrast, schools that have had below-average bar exam performance would see a significant increase—some of them in my projections moving up 0.2 points in their ratios or even more. If the school is in the unranked tier, it might help get the school into the rankings; if they are ranked lower, it might help them move up the rankings, an added benefit to their graduates passing the bar at higher rates. And it might help increase the employment rates of these schools.

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In short, this is a huge relief to many test-takers, and in particular to many repeaters who were close on a previous administration. It should result in thousands of new attorneys entering California in short order. The effects? Well, good for law schools in the short term, and good for recent graduates. For everything else, we’ll have to wait and see.