Friday, October 2, 2020

The Bar Exam v. Diploma Privilege

The coronavirus pandemic has forced a reckoning nationwide about the administration of bar examinations, usually offered two times a year in each jurisdiction. While about two dozen states did hold a late-July, socially-distanced bar exam in person, other states postponed to a planned September administration, which some jurisdictions postponed again in favor of a remotely-administered online exam to be held on October 5 and 6 (see chart at the National Conference of Bar Examiners). Concerns have grown over the possibility of technical issues with the upcoming online bar exam, with a number of test-takers reporting problems with practice exams and difficulty in obtaining remote support. Michigan's online bar exam, held in late July, experienced widespread technical issues which the State Board of Law Examiners later blamed on a hacking attempt.

Whether or not next week's online examination faces similar technical issues, it seems certain that conversations about alternative paths to law practice will continue for the duration of the pandemic. Last week, the District of Columbia became the fifth jurisdiction to provide for emergency licensure of recent law graduates during the pandemic. Oregon, Washington, Utah, and Louisiana have also provided that recent law school graduates may bypass a bar examination and begin supervised law practice under certain conditions. Some readers might be surprised by the idea of a lawyer skipping the bar exam, but "diploma privilege" is hardly a new concept. (Ask law students in Wisconsin, the only state that still regularly permits graduates of its two ABA-accredited law schools to practice law in the state without taking a bar exam, if they meet certain requirements.) As a bit of library research shows, emergency bar exam waivers have revived a practice that was once incredibly common in American law practice. 

The "Bar Examinations" section of Kermit Hall's Oxford Companion to American Law (available online to the Duke community) outlines the history and development of the bar examination in the United States. Up until the 1870s, a bar examinee would be questioned orally by a judge or lawyer, following the end of an apprenticeship period. In the 1870s, a movement grew to develop more consistent standards for examinations; around the same time, "diploma privilege" became more commonplace, as states and law schools sought to entice would-be lawyers to attend their programs. Lawrence Friedman's A History of American Law (4th ed. 2019 available online) notes the growth in diploma privilege practices: "Between 1855 and 1870, Louisiana, Mississippi, Georgia, New York, Tennessee, Michigan, and Wisconsin gave the privilege to graduates of home-state law schools. In 1870, Oregon, which had no law school of its own, went so far as to give the privilege to graduates of any school that had the diploma privilege in its home state" (p. 604). By 1890, as the Oxford Companion noted, 16 states provided diploma privilege for graduates from 26 law schools. The decline of the diploma privilege coincided with the establishment of the National Conference of Bar Examiners in 1931 - by the end of the decade, standardized written bar examinations had overtaken the diploma privilege. By 1974, when a history of diploma privilege was published in the Tulsa Law Journal, only four states still honored the privilege; once West Virginia abolished the option in 1988, Wisconsin stood alone in regularly offering its state's graduates diploma privilege.

As the pandemic continues into the indefinite future, thousands of recent law school graduates have struggled to prepare for ever-changing bar exam dates and formats. Commentators have raised questions about the safe and accessible administration of bar exams under emergency conditions, and even the necessity of the bar examination at all. Critics have highlighted the bar examination's history as a gatekeeping mechanism that was designed in part to restrict access to the bar for racial, ethnic, and religious minorities, and questioned the relevance of the test's content to the skills needed for successful law practice. Whatever happens with next week's online bar examination (and best of luck to our Duke Law alumni and other examinees), these debates are likely to continue for the duration of the pandemic, and beyond.