The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.