I awoke this morning with a deep sense of sadness and failure. Twenty-three states are holding in-person bar exams next week. Others are holding in-person exams in September, or online exams in October. Given the state of our country’s pandemic, all of these options are profoundly problematic. We are literally asking people to risk their lives to enter the legal profession. Only a handful of states have recognized the value of diploma privilege. (For a complete account of bar decisions over the past several months, see Epic Fail by Professor Marsha Griggs.)
I have been vocal about my criticism of bar examiners and courts. But, the truth is that this is our fault too. The NY Court of Appeals made a decision regarding the licensing of future attorneys without any engagement with law schools. The Deans of New York’s fifteen law schools met every week over the past several months and tried to engage the Court numerous times. Instead, the Court appointed a working group that did not have a single law school dean or law professor on it. While this was the Court’s decision, I think it’s our fault too.
Legal education has changed considerably over the past two decades. We now focus much more on experiential education, clinical education, and student-centered learning outcomes than legal education of the 20th century did. But, most of the decision-makers who govern licensing in our profession did not go to law school in this century, and we have not convinced them that law schools have changed at all. Even younger decision-makers have not expressed uniform support for diploma privilege, choosing a test that has a documented disparate impact on applicants of color and women, over trusting that law schools have prepared students to practice law.
When faced with difficult decisions, people fall back on their experience to guide them. We clearly have not done a good enough job of making sure that our profession’s decision-makers know that the law school that they experienced is not the law school of today. In the short time that I have been on this side of legal education, I have seen a rapidly evolving landscape. I have found it difficult to keep up, and I’m on the inside. Those on the outside have not seen any of it.
So, today I am asking my fellow legal educators to be more visible. Step out of our (home) offices and get more involved with the practicing bar. I certainly have not been good at doing this, everything else always seems to be more pressing. But we owe it to the future members of the profession to try harder. I have no doubt that the Class of 2020 will work to upend current licensing practices. We need to do our part too.