Louisiana Supreme Court Divides 4-3, Cancels In-Person Bar Exam, Forces Repeat Takers to Sit for Online Exam, Grants "Qualified" Candidates A Diploma Privilege (Updated)

Three justices bitterly dissented. One observed that after Hurricane Katrina, some test-takers had to retake portions of the bar exam.

|The Volokh Conspiracy |

Earlier this month, the Texas Supreme Court sharply divided over the bar exam. The majority agreed to offer an in-person exam in September, and an online exam in October. Only two Justices would have adopted a "diploma privilege." (And one of those dissenters  announced his retirement).

Now, the Louisiana Supreme Court has addressed this issue. The plan is a bit intricate. First, the Court has eliminated all in-person exams in Louisiana for 2020. Second, the Court has divided test-takers into two categories: qualified candidates and non-qualified candidates. A person who previously sat for any other bar examination is deemed non-qualified. (I suspect this dichotomy is designed to root out repeat test-takers, who already failed another exam.) The class of 2020, which has not yet sat for an exam, will be deemed "qualified." Third, qualified candidates do not have take any exam. They will be admitted right away, and have to take 25 hours of CLE, as well as the state's "Transition to Practice Program." Mazal tov!  Fourth, non-qualified candidates–that is, repeat test takers, or those admitted in other states–will have to sit for a remote (online) bar exam in August or October. Fifth, if a qualified candidate decides to sit for a bar exam, and fails, he will lose his diploma privilege! (I'm sure this option will not be very popular).

The order was signed by Chief Justice Johnson, "for the court." But it isn't clear there is a majority opinion. The Court has seven seats, but there is currently one vacancy. And there were three signed dissents. As best as I can tell, the vote was 3-3. I do not know how the Louisiana Supreme Court handles ties. There is no lower-court judgment to affirm. Perhaps the Chief has some administrative authority that allows her to act unilaterally? Regrettably, the dissents do not highlight this aspect of the decision. If you are familiar with Louisiana procedure, please email me.

Justice Hughes wrote the first dissent. He contended that the "diploma privilege" is an "overreaction to the virus."

I must disagree with the majority's decision to award what is commonly referred to as the "diploma privilege" to recent law school graduates. It is an overreaction, to the earlier overreaction to the virus, whereby the scheduled July bar examination was canceled. We have entrusted the Committee on Bar Admissions to administer the bar examination, yet have ignored their objective recommendations, while expecting the Committee to oversee the window dressing for automatic admission, a thankless task. I respectfully dissent.

Justice Genovese wrote the second, "vehement[]" dissent:

I vehemently disagree with and dissent from the Order of this Court dispensing with the taking of the July 2020 written examination (bar exam) by granting a "diploma privilege" solely on the basis of the seriousness and uncertainty of the Coronavirus affecting our nation, as there are alternatives.

He charged that the "class of 2020 gets a free pass and a law license with no bar exam, not even an online/remote one-day bar exam, and is virtually given a license to practice law with no testing at all."

Justice Crain wrote the third dissent. He determined that granting the "diploma privilege" will create an "emergency" of unqualified lawyers:

Without testing for minimal competency, the majority today grants "emergency" admission, or licenses to practice law, to over 500 new lawyers holding law degrees from both in-state and out-of-state law schools. As noted by my colleague, Justice Genovese, where is the "emergency" to admit over 500 new lawyers to practice law without testing minimal competency? If anything, removing the sole competency filter for admission to the practice of law will create an emergency, not eliminate one. The bar examination acts to protect the public from basic incompetency. Are our counterparts in the medical and accounting professions handing out licenses to practice medicine and certificates of public accounting without testing competency? We owe a responsibility to the public that an individual certified as a legal professional be actually qualified for the certification.

Justice Crain explained that people in Louisiana are required to serve on jury trials. And attorneys must go to court. Why not test takers?

They should be applauded. In contrast, these applicants are being gifted a license to practice law because the majority concluded they cannot safely show up for the test. However, once practicing they will be required to go to court like everyone else.

Recently a Florida lawyer entered a courthouse in a biohazard suit.

Justice Crain added that there is no right to enter the bar:

Membership in the profession of law has always been characterized as a privilege, not an entitlement. Today that appears to have changed, and I fear we may unintentionally be joining a broader effort to eliminate such high-stakes testing.

Justice Crain also highlights a disparity: those who have sat for a bar exam in the past will still have to take the "online" exam.

As applied, the order rendered by the majority is unfair and results in disparate and random treatment– the type of injustice the judicial system should seek to prevent and remedy. Equity does not demand that a select few applicants be admitted, but that all be tested.

I find this argument compelling. I think the majority is implicitly concluding that repeat test-takers are likely to fail, and thus need to be vetted more closely. There is an implicit judgment here that undermines the Court's desire for an even-handed administration of the bar. But in the aggregate, this approach will likely deny the privilege to those people who were most likely to fail.

Finally, Justice Crain notes that following Hurricane Katrina, some test-takers had to retake portions of the exam.

When Hurricane Katrina hit, this state became well-known for its fight and grit during those near hopeless times. Numerous test results from the bar examination administered in the summer prior to Hurricane Katrina's landfall were destroyed. Still, we did not forego the requirement of a bar examination. The affected applicants had the opportunity to retake portions of the exam. Not even in the face of flood-induced homelessness, near complete displacement, and death did we eliminate this prerequisite. Those students took the examination, or at least parts of it, twice. Those applicants rose to the occasion and proved themselves worthy of a law license and the public's trust. I have no doubt the current applicants could do the same.

This issue is very difficult. I'll admit, my thinking on the topic has evolved over the past few months. My former students (most of whom will take the Texas bar, and a few in Louisiana) are in a very, very difficult position. The rules keep changing, and uncertainty abounds. Students had budgeted and planned for a July exam date. Now, leases are running out. Funds are running low. And morale is even lower. We do our best to keep our students motivated. But who knows what the next few months will bring.

Update: A reader from Louisiana explain the Court's divided vote:

Article 5, Section 5 of the Constitution of Louisiana allows the court to assign a sitting or retired judge to any court. A retired judge is assigned as a justice pro tempore during the current vacancy.

The Louisiana Supreme Court issued such an order in a recent case.

The temporary judge cast the fourth, and deciding vote in favor of the diploma privilege.

Update 2: Another reader writes in:

Justice James Boddie, Jr.  is sitting ad hoc for Justice Marcus Clark who resigned before his term expired.  All 7 justices voted on this.  The decision was 4-3.

NEXT: The Majority of Americans Oppose Qualified Immunity. Where Is Congress?

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  1. Why cannot prospective lawyers wear a mask, sit an appropriate distance apart and click on a screen for a few hours.

    National board of medical examiners is still holding same exam format for physician licensure. And physicians in training are sitting for high stakes exams (fail twice, we kick you out of residency) this weekend.

    Though I’m certain that there are a few medical students and resident physicians who would like to receive licensure by diploma. Such a result might even be favored by the med-mal lawyers… 🙂

    1. IT certifications are awarded to whoever can pass the exam, and you can take most of them as many times as you want (and can afford to pay for.) Of course, most employers only prefer certification rather than requiring it. Some of those are as long as the MBE. When I was certified as a CISSP, the exam had 300 questions and allowed six hours to take it. No essay section, however. And that one came with CE requirements, too. On the other hand, Earning MCSE required six exams, and was specific to the version of Windows that was available back then, more than 20 years ago. I don’t think there’s liability for malpractice in IT security, although there probably should be.

  2. Louisiana lawyer here. The Louisiana Supreme Court always sits with 7 justices. When there is a vacancy, recusal, or a member of the court is away (e.g., on medical leave, which recently happened) a retired judge is appointed to decide the issue. So, the decision was 4-3, which is why an order was issued.

  3. “vehemently disagree”

    Is Demi Moore on the court?

    “Sam Weinberg: “I strenuously object?” Is that how it’s done? Hm? “Objection, your Honor!” “Overruled” “No, no. I STRENUOUSLY object.” “Oh! You strenuously object. Then I’ll take some time and reconsider.”

    1. The judges were sick the day they taught law at law school. We shouldn’t have to follow the advice of the galatically stupid.

    2. ““Sam Weinberg: “I strenuously object?” Is that how it’s done? Hm? “Objection, your Honor!” “Overruled” “No, no. I STRENUOUSLY object.” “Oh! You strenuously object. Then I’ll take some time and reconsider.””

      sometimes, you’re putting on a show for the appeals court, not the court you’re actually in. That’s who those strenuously objections are for.
      Plus also, sometimes fhey’re for the news media, so they’ll know what to pay attention to.
      Finally, I suppose some are for the clemency board, to get the executive’s attention and perhaps a pardon or commutation.

      1. sometimes, you’re putting on a show for the appeals court, not the court you’re actually in. That’s who those strenuously objections are for.

        Not in the movie. And not in real life. (An appeals court couldn’t give a crap; all they want to know was whether the issue was preserved.) And obviously not in the context of this blog post, since they were the appeals court. So, no.

        Plus also, sometimes fhey’re for the news media, so they’ll know what to pay attention to.

        In this context, very possible.

        Finally, I suppose some are for the clemency board, to get the executive’s attention and perhaps a pardon or commutation.

        Also no.

        1. ” (An appeals court couldn’t give a crap; all they want to know was whether the issue was preserved.)”

          So you wouldn’t be interested in making sure your objection was noted, just because if it isn’t it destroys the possibility of successful appeal. And why would your client worry about that? They have YOU on their side.

  4. I’m a little confused about all these cases, do judges have unilateral authority to decide rules and procedures for law schools and the bat exam? I assume the states grant some authority to the legal system itself, but ultimately how licensure laws work for law resides with the legislature right? Or the bar association for each state? Do judges determine rules for the bar association unilaterally?

    No idea how these procedures work. Just curious.

    1. The full authority depends a bit from state to state but the highest state court has plenary authority to regulate the practice of law in that state. The only limit is constitutional, a court could not bar blacks from becoming lawyers.

      Bar associations can be so called unified bars, like California, where you have to be a member to practice law.

      In other states, like Ohio, membership in the state bar association is voluntary. Its a trade group but the supreme court here uses it to screen applicants and investigate lawyers, though it doesn’t have to.

  5. Is the diploma privilege limited to graduates of in-state schools?

    It’s a little alarming if graduates of for-profit law schools that seem to exist for sole purpose of accepting money from students that want to go to law school despite having LSATs that indicate they’ll never pass a bar exam will be able to practice law in LA (and any states with reciprocal admissions).

    1. I assume it only applies to accredited schools. Which of course, for law, means absolutely nothing and a lot of accredited schools are not great, but for every other state that was a requirement.

      Hey, at the very least, in about 5 years Lowering the Bar blog will have a lot more material as more idiots enter law.

      1. Pretty sure Lowering the Bar will never lack for material with traditionally licensed lawyers.

    2. The truth is that the curreiculum in every ABA-accredited law school is just about the same. The major difference is how sharp the people in the other seats are. The value of a Yale degree has little to do with the ivy growing on the walls, and more to do with the fact that more of the top candidates apply there. The guy who graduate last in the class gets the same degree as the top finisher. I’m sure they’re all qualified to practice in states that aren’t Connecticut, once they pick up the local rules of court.
      I scored high enough on the LSAT to be courted by the T4 schools that were trying to get themselves out of the T4 ghetto long-term, and then went to the best law school in the state I was living in at the time, because I didn’t have to move to attend there.

      1. I was also recruited by lower tier law schools.

        I’m specifically referring to schools in the InfiLaw System (or rather “system” since 2 of 3 schools have closed for reasons relating to grads being unable to pass the bar), which seem to almost exclusively admit students who won’t be able to pass the bar.

        There’s a difference between lower-ranked, but respectable schools–and I went to U.S. News T2 school, so I’m not damning with faint praise–and “law schools” that admit students unsuited for the practice of law

        1. There’s three law schools in Oregon, which is where I lived when I decided to go to law school,and none of them are in the Tier1. There’s the Northwest School of Law, at Lewis and Clark College in Portland, the University of Oregon School of Law in Eugene, and Willamette in Salem.
          My undergraduate grades were poor. 4th-percentile poor. On the other hand, my performance on the LSAT was great, top-tenth percentile. My undergraduate grades would have kept me out of a T1 law school, even though my graduate-school grades were better. Those undergraduate grades were bad enough I wasn’t even sure I could get into any law school. So when it came time to apply, I looked up what factors were reported by law schools, and first-time bar passage is something they report on. So I wrote an application essay that strongly suggested I’d be a good candidate to pass the bar on my first attempt. (I’m good at passing tests.) I got into the one law school I applied to, and I passed the bar exam the first and only time I took one.

          1. Again, I’m not taking about T2 or even T3 schools. I’m talking about the worst of T4.

            It’s one thing to have a general rule against admitting applicants with an LSAT of less than 135 that allows for exceptions in unusual circumstances. Routinely admitting candidates with middling GPAs and LSATs in the 120s is another thing entirely.

            1. ” I’m talking about the worst of T4.”

              sure. You can divide them into two categories: One that just wants to extract as much cash as they can in the short term before the fact that they don’t have a good product to sell, and secondly, one that hopes to operate in the longer term and move up in the ratings. That second category requires attracting at least some capable and qualified candidates who can graduate and pass the bar. Treating both types of T4 schools as interchangeable is both inaccurate and stupid.
              I worked in the vocational-education industry which has some of the same problem: fly-by-night operations that might not last until next week, much less graduate people with skills that improve their employability. When one of those rivals closed, we both cheered that time had caught up to a scam operation and braced for people assuming that our operation was like the one that just closed.
              We were assisted by the fact that the state kept a list of diploma mills and actually criminalized claiming a degree from one of them as basis for employment.

  6. It comes down to how much faith you actually place on the bar exam to detect people who are unqualified to practice. If you don’t think it works, then what does? Do the law schools accurately determine the unqualified and flunk them out? Do managing partners detect the unqualified and fire them? Will their unfitness surface in court? It’s possible to believe that all of these are factors in determining which candidates should not practice law, and spare the effort and expense of holding exams. I suspect the “majority” opinion reflects confidence that they’ll be able to find and remove any unfit candidates down the road., and that there will be heavy scrutiny of any lawyer admitted this year in the next couple of years. Then they can decide if they need ot have bar exams at all, or they can look at alternatives, such as national licensure instead of the current state-by-state licensing.

  7. This will provide an interesting research population. If it turns our that this year group receives bar discipline, is found to have committed malpractice, or is more likely to be fired, then it is justification for the requirement for a bar exam.

    On the other hand, if there is no significant difference between this and previous year groups, then it tends to indicate these bar exams have no practical value.

    We shall see.

    1. A quick google says that roughly 2/3 would’ve passed the Bar anyway. (And obviously a few more would’ve passed on their second try.) So if we’re talking about 500 people as one of the excerpts above claims, there’s no more than 150 people at issue.

      Given that the bar doesn’t actually screen for competence or ethics, it seems unlikely that we’ll learn a whole lot.

      1. Or I could’ve just read the opinions, which said that 75% would’ve passed.

      2. “Given that the bar doesn’t actually screen for competence or ethics”

        there’s a separate exam for ethics. (OK, it tests for knowledge of what the rules are and how they work, not actual adherence. And candidates only have to be in the top 85% to pass the mpre, but the bar IS screening for ethics.)

  8. In the states that historically had a Diploma Privilege, that privilege was established by the state legislature.

    What authority do the state supreme courts have to take such actions on their own?

    1. In every state of which I am aware, the state constitution leaves the regulation of the practice of law exclusively to the state supreme court.

      At least in the three states of which I am particularly familiar, if the legislature attempted to pass legislation that attempted to set the requirements to practice law, it would be struck down as unconstitutional.

  9. Recent history suggests that something less than 60% pass the Louisiana Bar Exam, of course some of the failures are multiple repeaters. That still suggests the something like 40% of thosenot taking the exam wouldn’t pass.

    1. “That still suggests the something like 40% of thosenot taking the exam wouldn’t pass.”

      The difference between passing and not passing is relative, not absolute. The people who don’ pass don’t pass because they don’t perform as well as the people who did pass, not because there’s something objective being measured.
      The open question is whether or not passing or not passing the bar exam has anything to do with qualification to practice law. (No, I’m not bitter. I passed the bar exam in Oregon in February of 2011. I doubt that it means I’m qualified to practice law, absent guidance from a seasoned practitioner, which is why I don’t practice law.)

      1. I don’t understand much about the bar exam. How is it not objectively graded? Are a certain percentage of people destined to fail, simply because of the way it’s graded?

        1. “I don’t understand much about the bar exam. How is it not objectively graded?”
          Your score is relative to the other people who took the test at the same time you did, and a passing score is adjusted for each cohort.
          “Are a certain percentage of people destined to fail, simply because of the way it’s graded?”
          A certain percentage? No. They’ll adjust it so that some people fail. They want some failures to make the test seem hard. If they feel the need to have more failures, the passing score will be adjusted upwards and poof! more failures. They want most candidates to pass, so if they don’t see enough passing candidates, the passing score will be adjusted down.

          1. I suppose you’re correct that this is how it now is administered. Things have most-assuredly changed in the past 51 years since I sat for the Michigan Bar Exam.

            Back then it was 40 essay questions spread over 5 sets of subject-matter categories. Answers were given either Full, Half, or No credit. One required a certain total score to pass; memory escapes me after so many years, but it seems that 30 or maybe 29-1/2 was the requirement.

            Since the exams were distributed between a number of examiners, I doubt there was any coordination and thus any use of “a curve”. Our exams were returned to us – I think I actually have my set of five bluebooks here somewhere – and it would have looked curious if the written grade for any questions was changed so as to conform to an “adjusted curve”.

            1. It’s ten years since I took a bar exam. However, a substantial portion of the ethics class we looked into licensing procedures.

              We had the MBE which is machine-scored multiple choice, a simulated practice portion, where you’re given a set of facts and a set of authorities , and asked to apply the authorities to the facts given, then a set of essays. I know for a fact that I totally blew one of the essays, because it was on an area off law that I didn’t take the class for. So my answer for that question was a wild, uninformed guess and “I sure wish I’d taken Wills and Estates”
              That gave me more time for the other essays. I don’t know what the score I got was, just that my name was on the list of candidates who passed.

  10. So 4 judges say a bar exam isn’t required. So how is mandating one ever constitutional given the right to earn a living of your choosing. Obviously isn’t narrowly tailored.

    1 judge says the Bar exam is the sole measure of competence. Then why are we forcing people who want to be lawyers to go to 7 years of post secondary school including 3 graduate years and go into tens of thousands if not over a hundred thousand dollars in debt? If the bar exam is the sole measure of competence then having a degree is meaningless.

    The more and more judges and legal educators and administrators argue about what to do the more and more they are making it impossible to square the current licensing mechanisms with the constitution. Of course that won’t stop them from upholding them if challenged because…I guess because they had to so everyone should.

    1. There is no ” right to earn a living of your choosing”. Some arbitrary barriers to earning a living have been struck down, but that is it.

        1. There actually is such a right. It has been recognized as a Privilege and Immunity.

          https://pacificlegal.org/fourth-circuit-reaffirms-that-the-right-to-earn-a-living-is-protected-by-the-constitution/

          Louisiana isn’t in the fourth circuit, so apparently they didn’t find that finding very persuasive.

      1. It is true courts have mostly read it as an anti-discrimination rule rather than a privilege, but I contend that is incorrect. Even Blackstone and Coke recognized it

        https://www.chapman.edu/law/_files/publications/CLR-6-timothy-sandefur.pdf

  11. I don’t understand the justification for this decision. The reason to excuse people from sitting for the exam is because of coronavirus risks, isn’t it? But if the bar exam is being administered remotely, then those risks don’t exist, so why shouldn’t all the candidates have to take it that way?

    And I don’t understand the definition of qualified, which excludes anyone who ever took a bar exam before, anywhere in the country. Yes, it makes sense to separate out people who failed a bar exam before, but that’s not what this policy does; it excludes even those who passed another bar exam. (It also excludes anyone who is going to take a bar exam anywhere else in the country in 2020. Huh?)

    The only way I can make sense of the above facts is to conclude that this is not about coronavirus risks, but about law school graduates whining that the pandemic makes their lives too stressful/chaotic to prepare for and take a test. (i.e., “If you’re not too stressed to take an exam in State X, then you’re not too stressed to take our exam.”) Which is a pretty bad argument, because that’s the one lawyer qualification that the bar exam actually does/should screen for — people who can’t handle stress.

    1. “I don’t understand the justification for this decision. The reason to excuse people from sitting for the exam is because of coronavirus risks, isn’t it? But if the bar exam is being istered remotely, then those risks don’t exist, so why shouldn’t all the candidates have to take it that way?”

      The way you started out with this, I thought you were heading towards something like “why not give them a provisional license until they can take a Louisiana bar exam?” AFAIK, they don’t have any experience offering a proctored exam in any setting other than all together in one hotel ballroom, which is the usual way of doing bar exams. Switching to a remote testing situation hasn’t been tried before, so there’s no confidence they can actually manage to do it.

      1. The way you started out with this, I thought you were heading towards something like “why not give them a provisional license until they can take a Louisiana bar exam?”

        That’s not where I was going, but it’s certainly a reasonable compromise if the issue is coronavirus risks. I don’t think the bar has much utility so I don’t think it’s necessary, but if one does think the bar is important (as, presumably, they do since they’re not permanently eliminating it), it is rather bizarre to suggest that if you graduate at the right (wrong) time, you never have to take it.

        Switching to a remote testing situation hasn’t been tried before, so there’s no confidence they can actually manage to do it.

        Well, I’m sure that comes as a great relief to the applicants who they are forcing to take the exam remotely!

        1. ” if one does think the bar is important (as, presumably, they do since they’re not permanently eliminating it),”

          It’s primarily purpose is PR. People know that lawyers have to pass an exam to be licensed, and they believe it is hard (because they have not spent 3 years paying thousands of dollars to be prepared for it.)
          They don’t know about bar exam prep classes, so they think it’s hard to become a lawyer, rather than just expensive.

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