Are any law schools launching mid-1L transfer opportunities?

“Wow, what a terrible idea,” I’m sure many readers immediately think. But let’s face it, the coronavirus pandemic has “disrupted” (to use an overused term) higher education in a number of aspects. Why not transfers?

I can think of a number of reasons students might want to transfer in the middle of their first year as opposed to the end of it. Students may have expected a particular educational experience (online or in-person, among other expectations), and that experience might have been changed very late in the process—or it might be that the students experienced the option and dislike it, preferring an alternative. Students who want to be in-person, for instance, might want to move to an institution where that’s an option and a university administrative commitment (coupled with state and local authorities permitting such an option). Students who are studying remotely anyway wouldn’t have to move mid-year, as they could stay at home and take online classes (if that’s the option) at an institution in the Spring 2021 term.

Some might note that students haven’t received any 1L grades yet. True, but schools have already been recruiting transferring students before they’ve received their fall 1L grades (a dirty secret of legal education!). Early hints at a student’s grades exist in 1L legal writing assignments. LSAT/UGPA profiles are imperfect, but they’re still useful—and, indeed, the overwhelming focus of admissions remains on these factors. And many schools might say these factors are good enough.

Maybe there’s some ABA rule against this. But it struck me that, in the middle of a pandemic, we might see traditional rules go out the window, at least in some places.

The tension in measuring law school quality and graduating first generation law students

We (I’ll use pronoun here capaciously) know how most law school rankings are generated or how most assessments of law school quality (at least, as measured by law students) are developed. We look to the incoming metrics, the quality of the LSAT scores and undergraduate GPAs among incoming students. We look at attrition rates, including how many are academically dismissed or otherwise withdraw. We look at bar exam passage rates. We look at student debt loads, including those who graduate without debt. We assess “gold standards” in employment outcomes, specifically those who land positions in high-quality positions like full-time, long-term, bar passage-required positions; or those in “elite” outcomes like federal judicial clerkships or large law firm associates.

And while we might pick at elements of these rankings, we might look for “better” ways to measure quality. I think employment outcomes are a great standard. I also like to examine law school student debt loads.

But over the years, I keep wondering whether these “better” ways are, really, better. Prompted from a recent story about the USNWR “best colleges” ranking, I thought I’d muse about why.

Imagine two prospective students, Student A and Student B. Both have poor “predictors” of law school performance (below median LSAC index score, say). Student A is the child of a successful attorney in a mid-sized practice; or perhaps the parent founded and runs a small firm. Student B is a first-generation law student, perhaps a first-generation college student.

Both students will pay the sticker price for law school tuition and cost of attendance. They don’t earn “merit” scholarships. At many law schools, that can easily exceed $100,000, and often tops $200,000 or even nowadays $300,000.

Student A has the wealthy attorney-parent pay the bill; Student B secures, say, $150,000 in federal loans (if the school lacks much in the way of need-based aid, or if the student is just well-off enough to miss the cutoff).

Both students achieve what their predictors did predict: rather marginal law school performance. Job-hunting is tough for students with a bottom-quartile law school grade point average. After graduation, however, Student A gets a job at the parent’s law firm. Student B is left unemployed and searching, or perhaps in a marginally-attached job.

By a pair of the metrics I admire most—low debt loads and high-quality employment outcomes—Student A looks much better than Student B. But, isn’t it simply the path of least resistance to admit Student A over Student B and preserve legacy status? Or, if a school does well on these metrics, how often is it simply because of the cohort of students more closely resembles A over B?

It’s very expensive to a law school to help Student B succeed, both in reducing debt and in ensuring employment placement (or maybe as a prerequisite ensuring academic success).

I don’t have great answers at this point, except to say that I’m puzzling over the next level of data. I think law schools rightly ought to move away from focusing on inputs to focusing on outputs. (USNWR law rankings, not so much.) At the same time, I confess that moving to such measures offers their own limitations—at least, to the extent we think that we want to reward, say, schools for upward social mobility, or schools actually adding value to students as opposed to conferring status. I hope to think more about this in the years ahead.

Kanye West, federalism, and party disaffiliation statutes in presidential elections: Idaho edition

Last week, I noted that an Arizona trial court, in my view, got a party disaffiliation requirement wrong in the Kanye West ballot access case. Mr. West may be a registered Republican in Wyoming, but he is not a member of any recognized political party in Arizona. When the Arizona Supreme Court affirmed the trial court’s judgment, it did so on a different ground.

There’s a similar challenge in Idaho now. Idaho Code § 34-708A provides, "Such declarations must state that such persons are offering themselves as independent candidates and must declare that they have no political party affiliation." But a “political party” is defined specifically under Idaho law. For instance, "Upon certification by the secretary of state that the petition has met the requirements of this act such party shall, under the party name chosen, have all the rights of a political party whose ticket shall have been on the ballot at the preceding general election." The Republican Party of Wyoming has no such rights in the State of Idaho.

Again, this isn’t a mere technicality. It’s simply that presidential candidates look different because they’re crossing state lines. John Anderson might be a registered Republican in Illinois but could run as an independent candidate in the general election. George Wallace might be a registered Democrat in Alabama but run under the banner of the “American Independent Party.” The Democratic-Farm-Labor Party is unique to Minnesota for Democratic presidential candidates; the U.S. Taxpayers Party is unique to Michigan for the Constitution Party’s candidates. And fusion tickets in state like New York might result in unusual translation of voter registration across states. In a state like Idaho, the only way for the Green Party candidate to get on the ballot is via the independent route—because the Green Party is not recognized in Idaho.

To the extent Mr. West’s petition has other problems, those might well be good reasons to exclude him from the ballot. But on this measure, it’s not.

My 2013 blog post that consistently gets the most hits: "Ranking the most liberal and conservative law firms"

It’s not even close. On a given week where I don’t blog, it’s usually the top hit on my site. Even when I do blog, it’s still usually the top. It’s at or near the top of my year-end report, year in and year out.

It’s a post from 2013, “Ranking the most liberal and conservative law firms.”

I used to be way more into rankings on this blog (they’re clickbait-y, and it was a weakness in my early blogging days, I confess). This was an effort (with some help!) to look at campaign finance data, who contributed to the Obama and Romney campaigns in 2012, and figure out which firms, based on employee contributions to the candidates, were the most “conservative” or “liberal.” Plenty of open questions about how to use it, of course!

I didn’t update after 2016 because, well, maybe things were different in 2016. And maybe they’ll be different again in 2020. Maybe I should update. After all, seven years is a long time! But people keep coming back to it.

It’s also noteworthy that the bulk of the hits to this page come in as searches for some version of “conservative law firm,” and almost never as “liberal law firm.” It appears there’s some Google appetite among prospective law firm associates to identify the conservative ones.

This piece by Bonica, Chilton, and Sen in 2016 offers a more robust look at the political leanings of American lawyers—also a useful resource.

I don’t know if I’ll do something like this again, or if I did how I might change the reporting or methodology used. But it’s wild to me that after seven years it remains one of this site’s most popular posts. Then again, rankings do tend to hold as clickbait….

What we don't know about the July 2020 bar exam and Covid-19: a lot

My post last week offering the tentative conclusion that it appears no one contracted the coronavirus during the July 2020 administration of the bar exam languished in obscurity for most of the week until something spurred attention to it, offering voluminous feedback, in some ways the usual assortment of decidedly-helpful to decidedly-unhelpful responses.

There were a couple of tranches of responses I wanted to highlight. The first were a few people encouraged by the results, in particular thinking about how test-takers and bar exam administrators adopted some useful practices ahead of the exam. Test-takers were unusually cautious in self-isolation before the exam to avoid getting turned away from the exam; basic standards like mask or physical distancing requirements go a long way for a relatively short period of time in a room; test-takers traveled by driving in lieu of mass transit to avoid illness. In short, maybe these results shouldn’t be much of a surprise. (They would have been a surprise to me in March, when my robust “might” was all I could muster for an in-person exam!)

The second—and there were much more of these—were those critical of my conclusions. I want to focus on two of the more helpful points to highlight the weaknesses of my post.

The first bucket are questions about whether I asked the right question. As I wrote:

I reached out to several bar licensing authorities to see, as I put it, “whether any person contracted Covid-19 as a result of the administration of the July 2020 bar examination, or if any person contracted it as a result of their traveling to or from or lodging around the time of taking the bar exam.” (Should I have asked a different question? Well, I tried….)

Lots of people suggested I asked the wrong question. For instance, “as a result of” put too much of a causal emphasis, which bar licensing authorities would not necessarily be able to answer—or that made it easier to answer “no.” A positive test shared after the fact could still be reported as one not “as a result of” the exam. Fair critique! My goal was a narrow and specific concern about what we know. But my inquiry could of course have been broader. Additionally, as I noted, “some jurisdictions did emphasize they asked test-takers to disclose if they contracted the coronavirus within 14 days after the exam, and none did so. (That would sweep more broadly than contracting it during the bar exam, of course.)” For a follow-up inquiry (or, if you’re thinking about you, your next inquiry!), I might ask something more broadly, without the causal aspect.

Second, and relatedly about the scope of the question, was whether jurisdictions had contact-tracing protocols in place. Again, some did volunteer the post-exam 14-day reporting period, which, again, suggested to me some contact-tracing protocols in place. But, would it have been more useful to ask—before, during, after the exam—for bar licensing authorities to specify what, if any, contact-tracing protocol they had? Or what their negotiations with the local health officials looked like to do so? Absolutely.

Much of my encouragement came from Colorado's process, because (1) it appears people in the room were all made aware (although I cannot tell how much was word of mouth as opposed to formal notification), and (2) Colorado bar authorities apparently knew the negative results of the test-takers in the room who later took a test as a matter of peace of mind. (That was despite the fact that Colorado's local health authorities said that testing of everyone in the room wouldn't be required because of existing social distancing protocol.)

In short, are there more helpful questions? Absolutely. Is there more evidence we could gather? Definitely. Should we (err, should someone) do so? Totally.

We don’t know the results in a lot of jurisdictions. We don’t know who opted out of the exams. We don’t know how online administrations or administrations split across months look. We don’t know the psychological effect it had on test-takers and how it compares to previous administrations of the exam. We don’t know a lot. Indeed, I only got to seven jurisdictions in my original post! There are a lot of important questions still to ask. (Some I’m working on in the months ahead!)

So… do it! Ask good questions (or, questions better than mine!); engage in good faith with bar licensing authorities and public health officials; determine what we can do going forward!

The most helpful piece, I think, is from Professor Paul Horwitz over at PrawfsBlawg, with this bit I’d like to emphasize:

Voicing ex ante concerns about risks is perfectly understandable. One can hardly wait until after the event to express worries about future risks. And the outcome doesn't mean the concerns about risk were unwarranted. But it seems to me that, at least for those whose arguments were based on academic expertise, or invoked that expertise and appealed to past and ongoing empirical study of the issue, or otherwise invoked a kind of academic or data-driven or scientistic authority in making various arguments, there is an arguable duty to follow up and see what the data ultimately revealed about the accuracy of those warnings.

Claims about the future are often too easy to make. I really like to go back and see how often those (often dire) predictions come true. Sometimes these questions are hard to figure out. This question in particular seems very hard to figure out—hence, a post that opens with “appears,” turns exclusively on the causal questions, and includes a lot of caveats (go back and read all of them!). And, of course, even if true, it doesn’t answer the much bigger questions about the right approach in each jurisdiction (see, e.g., the caveats). It only helps us move marginally forward on one piece of a very complicated puzzle.

The Twelfth Amendment and the Libertarian Party ticket in South Carolina in 2020

The Libertarian Party nominated Jo Jorgenson and Jeremy Cohen as its presidential and vice presidential candidates. The Libertarian Party has ballot access in nearly every state, including South Carolina. But there’s a Twelfth Amendment wrinkle to this ticket this year: Ms. Jorgenson and Mr. Cohen are both inhabitants of South Carolina, as their filing reports.

The Twelfth Amendment requires that when presidential electors meet to vote for a prsident and vice president, on of those two names, “at least, shall not be an inhabitant of the same state with themselves.” That means South Carolina electors cannot vote for two South Carolina inhabitants. It means that the ticket, as printed, is an unconstitutional one.

Of course, either Ms. Jorgenson or Mr. Cohen might move before the electors convene. In Jones v. Bush, for instance, Dick Cheney moved from Texas to Wyoming ahead of the 2000 presidential election to avoid this very issue in Texas.

While it seems unlikely that South Carolinians would choose the Libertarian Party ticket this fall, I’ve repeatedly argued that decisions like these, even involving disputedly-eligible tickets, should be left to the political process. And it’s of course the case that the facts could change before, or here even after, Election Day to allow the ticket to become eligible—an extra reason to do so.

South Carolina law purports to bind electors to vote for the ticket and not vote “faithlessly,” or else electors are subject to criminal penalties. But the law also provides that the executive committee of the party “may relieve” electors of this duty if “in the opinion of the committee, it would not be in the best interest of the State for the elector to cast his ballot for such a candidate.” That might be a case where a candidate dies. It might also be a case where vote might be rejected by Congress. That might allow the Libertarian electors to vote for someone else for, presumably, vice president.

In any case, the mere prospective of a potential Twelfth Amendment problem is no reason to exclude a ticket from the ballot. But, there is a lurking Twelfth Amendment issue here.

Kanye West, Arizona, federalism, and party disaffiliation statutes in presidential elections

I haven’t weighed in much on the Kanye West presidential run since mid-July because, well, I haven’t much of legal interest to write. There have been some typical ballot access issues and some petitioning challenges. He’s gotten ballot access in a few places but not most others, and he’s been kicked off the ballot in several places. He’s not running a “serious” campaign, as I indicated in July. And so I haven’t spent much effort thinking about it.

But the challenge in Arizona to Mr. West’s candidacy piqued my interest, because a district court got the law, in my view, quite wrong.

Arizona law provides under Section 16-341, “Any qualified elector who is not a registered member of a political party that is recognized pursuant to this title may be nominated as a candidate for public office otherwise than by primary election or by party committee pursuant to this section.” (Emphasis added.) Mr. West is apparently a registered Republican in Wyoming. Plaintiffs sought to exclude Mr. West from the ballot by arguing that he sought ballot access through a nonpartisan route, which is forbidden if he’s a Republican. The district court agreed, saying that the “most sensible reading” of the statute is that Mr. West is a Republican.

But when we register to vote and affiliate with a political party, we do not affiliate with a “national” party. We affiliate with a state party. In Arizona, there is a Republican Party, recognized under Arizona law, with its headquarters in Arizona. But Mr. West is registered with the Republican Party of Wyoming, not of Arizona. Wyoming’s Republican Party is not recognized under Arizona law.

True, the Republican Party of Arizona holds a presidential nominating primary to send delegates to the Republican National Convention. And true, this November, the Republican Party of Arizona, like the other Republican Parties throughout the country, will name Donald Trump and Mike Pence as their presidential ticket. But how the state parties affiliate with the national apparatus is a different question.

Maybe this seems too cute by half, but it’s a testament to how presidential elections just look different. For instance, Minnesota doesn’t have a “Democratic Party.” It has a Democratic-Farmer-Labor Party, but it’s affiliated with the national Democratic Party and participates in the Democratic National Convention.

We might want a disaffiliation statute if you’re an Arizona Republican running for an nonpartisan slot for, say, Congress or the state legislature. The Supreme Court in Storer v. Brown upheld such a requirement to protect the interests of the political party from sham candidacies or party raiding. But for presidential tickets, however, we’d need more express statutory clarity—at least, I think so, and my reading of the statute, I think, is the more persuasive view.

Puzzles when crossing state lines in election contests is hardly a novel problem. In 2015 in Arizona, for instance, a court threw out a criminal conviction for someone accused of voting twice, once in Arizona and once in Colorado. The court noted that the defendant hadn’t voted twice under the statute—the statute applied to Arizona elections, not other states’ elections.

It might be too late for an appellate court to correct this misunderstanding of state law. I don’t know whether Mr. West would appeal, or if there are other bases for throwing out his petition. But it’s simply to point out, I think, that disaffiliation statutes simply look different in presidential elections with out-of-state candidates.

UPDATE: On September 8, the Arizona Supreme Court affirmed the exclusion of Mr. West from the ballot, but not on this basis, which is good news. That said, it does appear that the Court used a novel rule previously inapplicable to other candidates, which may be its own problem….

It appears the July 2020 bar exam did not spread Covid-19 among any test-takers

There was much concern ahead of the July 2020 bar exam that administering the exam would be unsafe for test-takers. Indeed, it’s a reason why many states postponed their exams, shifted to an online exam, or offered diploma privilege to some cohort of would-be test-takers.

Several states, however, administered the July 2020 bar exam in person, on schedule. And it appears that there were zero instances of the spread of Covid-19 related to the administration of the exam in any of jurisdictions.

(Let me offer a few throat-clearing caveats here. Past performance is no indicator of future success in later administrations. Some set of test-takers had difficulty studying for the bar exam ahead of the July 2020 exam; some may have had difficulty taking it in masked environments. We’ll see what the results of these administration look like, of course—it might be that pass rates decline by some degree among some because of these factors. But, then again, they might increase if people had little to do or few places to travel and more time to study! Some people also probably withdrew from the administration of the July 2020 bar exam due to family commitments or high concern of the risk of contracting Covid-19 during the administration of the bar exam, which is not a trivial cost. Some set also may well have opted into these particular tests in UBE jurisdictions, as the score could transfer to other jurisdictions that had postponed administrations. In short, there are a lot of open coronavirus-related questions that this post is not about, but additional concerns to think about in evaluating costs and benefits.)

That said, if we are concerned about the risk of spreading Covid-19 during the bar exam, this should be encouraging. There are a couple of ways to think about Covid-19 spread, too. The first is during the administration of the exam itself—several hours indoors for a couple of days. The risk of transmission seems particularly low here if adequate precautions are put in place. The second is the broader concern of spreading Covid-19 during travel to and from the bar exam or lodging in another city during the administration of the bar exam itself. That’s a longer time period, a greater likelihood of interacting with others, and a different kind of risk much more difficult for a licensing authority to control, so I don’t want to minimize the risk of spread to “only” the several hours of test-taking.

My instinct is that if someone did contract the coronavirus during the administration of the bar exam, we’d probably know by now. That is, contact tracing would require contacting dozens of test-takers, and that news would presumably make it to some media outlet. Of course, someone might privately have become ill and never disclosed it to the state bar. Or there could have been a great deal of discretion in how these inquiries proceeded. Or maybe contact tracing simply never took place. There are, admittedly, limits to silence.

I reached out to several bar licensing authorities to see, as I put it, “whether any person contracted Covid-19 as a result of the administration of the July 2020 bar examination, or if any person contracted it as a result of their traveling to or from or lodging around the time of taking the bar exam.” (Should I have asked a different question? Well, I tried….) Not everyone got back to me, and I didn’t reach out to everyone, so it’s also limited in this respect, too.

So far, representatives in Colorado, Iowa, Mississippi, Montana, North Carolina, North Dakota, and West Virginia confirmed that, to their knowledge, no one contracted the coronavirus on account of the administration of the bar exam. (I’ll update if I have updates.) Some additionally confirmed that no proctors or staff contracted it, either.

Proving a negative is tough, but some jurisdictions did emphasize they asked test-takers to disclose if they contracted the coronavirus within 14 days after the exam, and none did so. (That would sweep more broadly than contracting it during the bar exam, of course.)

Colorado was of particular interest, as one test-taker learned immediately after taking the bar exam she tested positive for the coronavirus. No one reported contracting the coronavirus as a result of the Colorado exam. Indeed, according to a representative, about half of the test-takers in the room with this test-taker ultimately took a Covid-19 test, and all came back negative.

This should all be encouraging news for bar licensing authorities. Yes, there remain costs, as noted in the parenthetical above, about administering a bar exam during the pandemic. But, I think, if bar licensing authorities have the space to distance test-takers, it provides ample opportunity to continue administrations in February 2021 (or later this fall in jurisdictions that postponed the exam), it may well be that administering the test as scheduled rather than postponing was the better option. Jurisdictions like North Carolina and Colorado each nearly 700 test-takers, which shows that the administration doesn’t have to happen exclusively on a very small scale. (North Carolina and Colorado had the 14th- and 15th-most test-takers in the July 2019 administration of the bar exam, and neither is offering an additional administration later this fall.) That said, scaling to the 10,000 or more test-takers in New York could present very different challenges!

And, of course, we’ll wait for more data to roll in—whether pass rates change, whether the demographics of test-takers differed, and so on. Some states have preemptively and temporarily lowered their cut scores to account for some coronavirus-induced changes, for instance.

North Carolina is a great example—their total test-takers declined from 783 in July 2019 to 668 this July. But the cut score was lowered slightly, and the pass rate rose from 73% to 83% (perhaps also due in part to some non-random self-selection out of the exam). As of September 1, results are out for hundreds of new law school graduates—and many other jurisdictions languish about their plans.

I don’t purport, as I’ve said since March (!), to have a single answer for every jurisdiction on the bar exam, or what the best steps are for each jurisdiction. Some version of diploma privilege may make sense in some places, modified versions of the exam may look better elsewhere. But on this one little piece of information, we should be encouraged about the health and safety of test-takers for in-person administration of the exam.

It's not bad news: MBE scores rise for July 2020 bar exam

What a tepid title I can offer…. As longtime readers of this blog know, I track performance on the bar exam fairly closely. The July 2020 administration, however, offers only a limited window into what’s happening in legal education. Only some jurisdictions held a July 2020 bar exam; even in those jurisdictions, self-selection among test-takers this time around is probably not random (perhaps skewed toward better test-takers—those with ample resources to study and prepare, for instance).

So the NCBE’s update on performance on the July 2020 bar exam is of limited value. Scores went up. They went up a lot. In fact, they reached an all-time record high! It’s great news for those who took the July 2020 bar exam, of course! And pass rates will probably rise significantly in these jurisdictions that administered the exam.

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Now, I won’t get overly excited about this chart—at least, I usually use this chart to make an overall evaluation of the state of legal education, and it really isn’t great to do that here. About 5700 test-takers took the July 2020 MBE. That’s compared to 45,000 or so in a typical July! (Removing New York alone, of course, accounts for 10,000 or so tests.) 5700 test-takers is a big sample, but it’s relatively a small cohort that tells us little about the overall state of legal education.

The MBE scores were up 5 points over July 2020, but they were up only 3.5 points over 2019 in the 23 jurisdictions that administered the July 2020 bar exam. That means if we added in other jurisdictions, we may well see a smaller spike.

Even within that cohort of states that administered a July 2020 exam, first-time test-takers were about 75% of all test-takers, about 6 points [I think] higher than the previous exam. So the pool of test-takers were stronger as it skewed toward first-time test-takers, which likely accounts for at least some of the improvement in scores. (It also suggests that those who failed the bar exam previously increasingly opted out of this administration of the exam.)

In short, this is terrific news for the crop of test-takers who did take the exam. (Not to mention those in the four states with some version of “emergency” diploma privilege this fall.) Maybe the absence of, say, weddings and night life meant limited travel and greater focus on studying for the exam as an additional contributing factor to success. One could only guess. But it probably doesn’t tell us a whole lot about the overall state of legal education and the cohort of recent law school graduates.