Harvard Law students want to get their licenses without having to take the bar exam (coronavirus exemption!)

It seems that some U.S. students are using the pandemic emergency to their own advantage. As I’ve written before, students at several schools have urged changes in the methods grading during this semester of “remote learning”. That’s not automatically something to be rejected—except in the cases where students are requesting that everbody “pass” and that the “fail” part of “pass/fail” be eliminated (this is the subject of a petition at Yale, as well as requests from students at Vassar and, I’m sad to say, my alma mater, The College of William & Mary). Even worse, some students simply want everyone to be given A or A-: the two highest grades. This is called the “double A model”, and has been urged by students at Harvard and the University of Texas, As far as I know, no college has yet acceded to either of these demands, and good for them.

Here’s another example of students leveraging the current crisis in their favor. Harvard Law Students are asking to get their license without having to take the bar exam, an exam typically taken in July after students graduate from law school, and for which they prepare arduously and independently. (There are exceptions: according to Wikipedia, “Each state controls when it administers its bar exam. Because the MBE [multistate bar examination] is a standardized test, it must be administered on the same day across the country. That day occurs twice a year as the last Wednesday in July and the last Wednesday in February.” And some states don’t adhere to the double date.)

Now the law students don’t want to bother with that exam, at least at Harvard. Here’s an article from the Harvard Crimson about the issue (click on the screenshot). I find the student initiative distasteful because they are dragging in identity politics to justify their request, and in a way that seems self-serving rather than societally useful.

 

You don’t get a license to practice law without passing the bar exam, and yes, several states have already postponed the exam in light of the crisis. But that’s not enough; Harvard Law students want the exam waived completely:

Nearly 200 third-year Harvard Law School students signed a letter to Law School administrators Thursday asking for the school to publicly advocate for an emergency diploma privilege — a policy granting graduating students their law licenses without requiring the bar examination.

. . .The Supreme Judicial Court of Massachusetts announced Monday it would postpone its July 28 and 29 exam until an undetermined date in the fall.

But the Law School students’ letter argues that merely postponing the bar exam will jeopardize the employment opportunities and financial security of graduates.

“Most HLS graduates planned to begin working with employers starting late Summer or Fall 2020,” it reads. “If state bar exams continue to be postponed, it is unclear if students will begin working, as planned.”

I doubt it. I’m sure law firms and other employers will allow the students to do law-related work that doesn’t require licensing until they pass the postponed exam a couple of months after it was planned.

And then they bring in identity politics, saying that unless the bar exam is waived completely, not only will marginalized students suffer disproportionately, but the mental health of all students will be jeopardized and that the newly minted but license-less lawyers wouldn’t be able to help the oppressed people hurt by the pandemic.  The Crimson quotes one author of the letter:

[Donna] Saadati-Soto said students who can secure employment before the postponed exam might have to decide whether to work full-time or study for the exam full-time — a decision she thinks would eliminate traditionally marginalized students from the legal profession.

“Folks that don’t have the financial security to be able to just quit their job and study for the bar at any moment — they might choose to forego the state bar,” she said. “That means low-income students, immigrant students, folks of color are the ones that are going to be more likely to have to forgo taking or studying a later exam because they’re going to be needing to work to provide for themselves and their family.”

First of all, any “marginalized” student who got into and graduates from Harvard Law School is automatically privileged (or “de-marginalized”), for Harvard is recognized as one of the best—if not the best—law schools in America. Further, graduates of color will be snapped up instantly by employers who want diversity, especially if they carry a Harvard Law School diploma. And seriously, does Saadati-Soto think that a student who graduated from Harvard Law won’t do everything they can to get a job in law, including taking a few extra months to study for the bar?

Oh yes, and there’s the mental health issue that we see increasingly used as a way to leverage student demands (yes, of course some students have mental health issues, but they should seek counseling, not a waiver of bar exams):

[Saadati-Soto] also said that the legal profession currently faces a mental health crisis, and having to take the bar exam could exacerbate the issue by adding unnecessary financial and academic stress in the midst of a global pandemic.

I wonder if that “mental health crisis in the legal profession” (one of which I was unaware; is it real?), comes from there being too many lawyers? But let’s pass on to what really ticks me off about this letter: its claim that social justice is best served by waiving the bar exam:

The letter argues that the huge numbers of people impacted by COVID-19 require that as many lawyers as possible enter the workforce to advocate for struggling small businesses, recently unemployed individuals, and families facing eviction.

It also alleges the country could need more lawyers to continue providing criminal defense and advocating on behalf of working people and detained immigrants — a need it claims can only be fulfilled if law school graduates are granted automatic admission to the Bar.

“We cannot ignore matters of due process and deprivations of individual liberty, even in times of novel national crises,” the letter reads. “We the undersigned request that Harvard Law School recognize the imminent need for legal advocates and take the most humane, public-health conscious, and ethical approach.”

This is transparently self-serving given that not all of the “freed” lawyers will work on social-justice issues. How do they know that postponing the bar exam will affect social justice in these ways? And, don’t forget, it will also beef up the number of corporate lawyers, financial lawyers, and the many lawyers who work in the service of capitalism. If they take this tactic, why aren’t they arguing for eliminating the bar exam only for those who have job offers in social-justice positions?

This argument, of course, doesn’t just apply to Harvard, but to law students throughout the U.S., and can be used as a reason to completely eliminate the bar exam for all students graduating this year. The letter doesn’t mention this. God bless the child that’s got his own.

I have no sympathy for these students, and am revolted by their appeal to social justice as a way to leverage their request, for this allows them to argue that if the request is refused, those who do so are racists who don’t care about the marginalized, immigrants, or small businesses. But how do you ensure quality lawyers without a bar exam?

In fact, everyone about to finish a degree will experience disruption of some sort. I don’t see that lawyers are anything special in the current situation. But they’re good at pretending they are!

But health professionals are, and some medical schools are graduating their students early to release a workforce to combat the pandemic, as well as delaying (but not eliminating) the complex testing process needed to get a medical license (see here and here). I find this sensible and useful—much more useful than unleashing a bunch of unlicensed Harvard lawyers on the world. Note, too, that medical students are NOT demanding that the licensing exams be waived, even though they could use the same arguments as the Harvard Law students.

I wouldn’t want to be treated by a doctor that was unlicensed, nor would I want to hire a lawyer who never passed the state bar exam and therefore wasn’t licensed to practice.

50 Comments

  1. Posted April 6, 2020 at 9:09 am | Permalink

    If there is one country that does not “need more lawyers” it is the U. S. of A. (There are already 1.3 million.)

    • chrism
      Posted April 6, 2020 at 10:01 am | Permalink

      Quite. If there was a shortage of lawyers (snigger), and lawyers were known to alleviate the pandemic in some fashion, there would be a rational case to be made. As it is, one can’t even throw the virus a few spare lawyers without helping it multiply and infect more of us lay people.

    • Posted April 6, 2020 at 10:08 am | Permalink

      Here’s one of those morality questions involving a lawyer:

      A lawyer and a real estate agent are both drowning. You have a life boat but there’s only time to save one of them.

      Do you make a sandwich or call for pizza?

    • Nicolaas Stempels
      Posted April 6, 2020 at 1:46 pm | Permalink

      Reminds me of an old South African joke:
      You are alone on a trail, to the left of you a hungry lion is approaching fast, in front of you there is a lawyer on the trail, and to the right of you an agitated and angry black mamba is slithering straight towards you. You check your gun and see you have only two bullets left. What do you do?

      Answer: you shoot the lawyer twice, just to make sure you got him.

  2. rickflick
    Posted April 6, 2020 at 9:13 am | Permalink

    At an elite university like Harvard, I would expect students to all be pretty much qualified. Any failures would be known from an early stage of their education dating back to before the coronavirus and should have been/ could now be removed. So, I don’t think the students, if unleashed on the country prematurely would present a significant legal danger. I’m not as sanguine about a low ranking school that gets spill over students. Still, these are extraordinary times. Perhaps the best solution would be to give them all temporary licenses and test them later to make it permanent.

    • Posted April 6, 2020 at 9:20 am | Permalink

      If you expect all students to be pretty much qualified, shouldn’t they never have to take the bar exam? What about Yale, then?

      And no, they don’t want to EVER take the bar exam. Ever.

      • George
        Posted April 6, 2020 at 11:18 am | Permalink

        If you graduate from an accredited law school, why should you have to take an exam before practicing law? I jnow there are boards in the health care professions but even there it should be up to the educators to weed out the unfit. Of course that might interfere with maximizing tuition dollars.

        • Posted April 6, 2020 at 11:33 am | Permalink

          That is a question that can be applied at any other time, without a pandemic crisis.

          I expect the truth is that not all law school graduates are created equal. Plenty of students who graduate with a law degree, even from ‘Hahvahd’ will still fail the bar exam. That presumably means something. There is a score that comes from the exam, and employers probably will want to assess that score among their applicants.

      • George
        Posted April 6, 2020 at 11:18 am | Permalink

        If you graduate from an accredited law school, why should you have to take an exam before practicing law? I jnow there are boards in the health care professions but even there it should be up to the educators to weed out the unfit. Of course that might interfere with maximizing tuition dollars.

      • George
        Posted April 6, 2020 at 11:18 am | Permalink

        If you graduate from an accredited law school, why should you have to take an exam before practicing law? I jnow there are boards in the health care professions but even there it should be up to the educators to weed out the unfit. Of course that might interfere with maximizing tuition dollars.

      • George
        Posted April 6, 2020 at 11:18 am | Permalink

        If you graduate from an accredited law school, why should you have to take an exam before practicing law? I jnow there are boards in the health care professions but even there it should be up to the educators to weed out the unfit. Of course that might interfere with maximizing tuition dollars.

        • Filippo
          Posted April 6, 2020 at 11:26 am | Permalink

          Does your view extend to drivers licenses of any kind, barbershops, K-12 teacher certification and licensing, firefighting, policing, EMT, HAZMAT, airline pilots, architecture, engineering, among others?

        • Posted April 6, 2020 at 11:39 am | Permalink

          Each state has different laws so passing the bar in each state tests something different. Perhaps very few of the laws are really that different and there could easily be a national bar exam. On the other hand, I’m sure state bar associations want to keep control over who gets to practice law in their state. One can take issue with all of this, of course, but those are the reasons.

        • Derek Freyberg
          Posted April 6, 2020 at 1:33 pm | Permalink

          There are a couple of states that do not require a bar exam for graduates of accredited law schools IN THAT STATE. None, as far as I know, accept graduates of accredited law schools out of state.
          Graduation from an ABA accredited law school allows you to take the bar exam in any state – if you graduate from an accredited school in California you can take the bar exam in New York, and vice versa; but each state has different laws (Gee, what a surprise!) and so each state has its own bar exam, testing not only general law principles but also the law of that state.

        • davelenny
          Posted April 6, 2020 at 3:54 pm | Permalink

          Does grade inflation affect individual college graduation rates?

    • eric
      Posted April 6, 2020 at 9:34 am | Permalink

      Harvard’s pass rate for the bar exam is 81%. All the schools I looked at had pass rates between 60% and 82%, so they’re right at the top…but nowhere near the 100% you seem to have assumed.

      • Posted April 6, 2020 at 9:55 am | Permalink

        I had no idea it was that low. That means that 1 our of 5 Harvard Law grads has to take the exam again (or give up. . )

        • rickflick
          Posted April 6, 2020 at 10:54 am | Permalink

          Sometimes, I think, candidates take the exam without really working at it to get practice for the next time. This could account to some degree for the low percentage.

        • eric
          Posted April 6, 2020 at 11:38 am | Permalink

          My apologies, I got that wrong. I was misreading the table for Massachusetts pass rates vs. Harvard pass rates.

          It’s 81% for first time test takers throughout MA. It’s 98% for first time test takers from Harvard.

          Thanks for the comment skepticism. It made me double check. Peer review is a good thing. 🙂

          Thinking back to the subject of the original post, I think I still disagree with RickFlick. Simply because it would be unfair to other people taking the test, and because it’s not right to grade someone based on a statistical average of how their peers did. I think delaying the test for everyone across the nation for a month or two is a much better choice.

    • Posted April 6, 2020 at 9:40 am | Permalink

      Perhaps the best solution would be to give them all temporary licenses and test them later to make it permanent.

      I don’t understand. Is there some shortage of lawyers? Is the attrition rate of lawyers so high that we need to throw this year’s crop into the meat grinder with inadequate training?

      Wouldn’t it be better just to postpone the bar exams until it is safe to take them.

  3. Randall Schenck
    Posted April 6, 2020 at 9:22 am | Permalink

    Yes, we need more lawyers. Trump is running low.

    How about all those at Harvard waiting to take the test, suit up and go work at a hospital….you know the front lines.

  4. eric
    Posted April 6, 2020 at 9:39 am | Permalink

    Seems pretty ridiculous from an employment perspective. I expect demand for legal services is down given the courts are likely delaying cases, which means there’s probably far fewer billable hours to be had. Waiting to get a legit license to practice law until self-isolation stops, seems to me to be a more sensible choice than getting a somewhat shifty license now.

    • Filippo
      Posted April 6, 2020 at 10:38 am | Permalink

      These self-absorbed, entitled Harvard (and other such schools) law students should take a quick course to become certified nursing assistants so as to directly assist with the coronavirus pandemic and make some amount of money, spending their off-work hours studying for the bar exam schedulled some months later than usual.

      Their aide experience will support the noises they make about helping others and be evidence for their willingness to occasionally do “pro bono” legal work bar associations say they expect.

  5. Evan Plommer
    Posted April 6, 2020 at 9:42 am | Permalink

    Allowing medical students to go out and practice (a.k.a. HELP) during this pandemic seems right, as long as they’re required to pass their exams at a later date. Harder to see an equivalent legal crisis.

  6. dd
    Posted April 6, 2020 at 9:47 am | Permalink

    Let’s say Harvard goes along with the request.

    Wouldn’t that class of lawyers be stigmatized until they did pass the bar?

    • Taz
      Posted April 6, 2020 at 10:24 am | Permalink

      It’s not Harvard’s decision, it’s the state that mandates the bar exam. These students are going to find out that state officials aren’t university administrators. The only response will probably be “request denied”.

  7. DrBrydon
    Posted April 6, 2020 at 10:05 am | Permalink

    I have no sympathy for them at all. God, what a generation!

  8. David Fuqua
    Posted April 6, 2020 at 10:13 am | Permalink

    Harvard law grads go all over the country after graduation and apply for and take the bar in the state where they will practice. How can the University obtain waivers of the bar exam from 50 states, on even Massachusetts for that matter?

    All law grads dread the bar exam, and not all of them pass the first time. There is a fair question as to whether the bar exam serves its intended purpose of protecting the public from unqualified lawyers. I’ve encountered many licensed lawyers who were at best barely competent. I have met only one in my career who gave up after the third try and became a politician.

    But I do think we need some benchmark before the state gives you a license to practice and the privilege to appear in courts and advise clients in the matter of their rights. It is serious business when a client irretrievably compromise rights.

    One is not qualified by good intentions and not necessarily by having obtained a diploma.

    As a historical note, Mississippi had a diploma privilege for years when it had only one law school at Ole Miss. During the civil rights era, the diploma privilege was used as a tool to keep civil rights lawyers out of the Mississippi courts. When other law schools opened in the state, particularly ones accessible to poor and black students, the diploma privilege was attacked on the ground that it violated the equal protection clause. The privilege was abolished in 1981.

    I agree with the arguments you make in analyzing these students’ idea. And you are right, a HLS graduate typically stands first in line for the best, highest paying jobs. For each HLS graduate dedicating his or her career to social justice, probably two other fellow graduates (or more) dedicate their careers to supporting capitalism and personal wealth. They should all gain the privilege of a law license by testing then battle each other as lawyers for the good of the nation.

    • Filippo
      Posted April 6, 2020 at 11:45 am | Permalink

      ” . . . gave up after the third try and became a politician.”

      I wonder if the U.S. constitution should be amended to require certain minimum requirements of politicians, including some sort of certification (of a non-mental type) and licensure.

      • Hempenstein
        Posted April 7, 2020 at 8:15 am | Permalink

        Or at least that they pass the same scrutiny given to job applicants at McDonalds (which I imagine includes a urine test).

  9. Ken Kukec
    Posted April 6, 2020 at 10:23 am | Permalink

    An odd fact that bears noting in this regard is that on occasion top-ranked law schools, such as Harvard’s, have lower bar-exam pass rates than much lower ranked schools. This is because top-ranked schools treat the law as an intellectual pursuit, whereas some bottom-ranked schools view their mission as essentially a three-year bar-exam prep course.

    Right out of law school I did a clerkship with a federal judge. I was of half a mind to take the bar exam cold the summer before the clerkship started, since I had pretty good test-taking skills, and since, even if I failed it, I’d have another chance to take it before going out into private practice.

    Then I met a few of my judge’s former law clerks who informed me that no law clerk for any judge in that jurisdiction had ever failed the bar exam on his or her first attempt. Not wanting to risk the infamy of being the first, I lined up with the rest of the recently graduated sheep and forked over the money for a month-long intensive prep course.

    • Hempenstein
      Posted April 7, 2020 at 8:21 am | Permalink

      You comment is right in line with my son’s. He didn’t graduate from Harvard Law, but told me that their grads are under-represented as actual practicing attorneys.

  10. Posted April 6, 2020 at 10:38 am | Permalink

    I think they got jealous because some 4th year med students are being allowed to start practicing early due to the emergency need. Perhaps I’m being uncharitable.

  11. Posted April 6, 2020 at 10:38 am | Permalink

    Some med school students are being allowed to graduate early in order to supplement current medical needs. Nurses too. They still have to complete residencies later.

    • Posted April 6, 2020 at 11:02 am | Permalink

      But perhaps they are not allowed to act as licensed MDs but to help out in capacities that do not require a license.

  12. harrync
    Posted April 6, 2020 at 10:50 am | Permalink

    I had an acquaintance who graduated from a good law school [USC], got a position at a top LA firm – and failed to pass the bar exam. They kept him on and he did pass on the second try. And at that time [1968], it took a while to get the results, so every grad who got a job with a firm was working as a non-lawyer for the firm until the results were in. One reason it took a while to get the results was that there were no multiple choice questions. Three days of two three hour sessions where you were given a one page fact sheet and told to write for three hours. It took a while for the graders to go through all those essays. Results probably come in faster today.

    • Derek Freyberg
      Posted April 6, 2020 at 1:50 pm | Permalink

      When I took the CA bar in 1982, it was two days of essays, with one day of multiple choice (the MBE – Multistate Bar Exam – 100 questions each in the morning and afternoon) in the middle. I think ’82 was the first year that they had 1-1/2 hour essays (so only two per session) for two sessions, for a total of ten essays; previously it had been all 1 hour essays, so you ended up writing twelve essays over those two days.
      And yes, students from good schools failed, and they still do – the CA pass rate was 64% for first-timers in summer 2019, 72% for accredited schools.

      • Posted April 7, 2020 at 12:29 am | Permalink

        46% first time pass rate in NY.
        Sorry counselor, I just couldn’t resist! 🙂

        D.A., J.D., NYC (2002)

  13. Posted April 6, 2020 at 11:00 am | Permalink

    “mental health crisis in the legal profession”

    These students have probably been watching “Better Call Saul”.

  14. Posted April 6, 2020 at 11:26 am | Permalink

    My initial reaction is unprintable.
    But my more tempered reaction is that students who have not yet earned a degree or license do not get to dictate terms for getting that degree or license.
    Case closed.

  15. EdwardM
    Posted April 6, 2020 at 11:45 am | Permalink

    They can’t seriously think they’ll get their wish. Now that students at Harvard and the several school mentioned have so publicly planted their snowflake flag, it will be interesting -and telling- to see which University Admins and faculty salute.

  16. phar84
    Posted April 6, 2020 at 12:04 pm | Permalink

    Funny you don’t hear from the rest of the student body that should want to be able to pass the bar as imprimatur for their licenses.

  17. Charles A Sawicki
    Posted April 6, 2020 at 12:43 pm | Permalink

    A pandemic of whiny baby students?

  18. Posted April 6, 2020 at 12:52 pm | Permalink

    When a student like Trump can pass the presidency test, what do we expect … let anyone in …

  19. Jon Gallant
    Posted April 6, 2020 at 1:25 pm | Permalink

    The letter about the desperate need for more lawyers (to defend the marginalized etc. etc.) was undoubtedly written by Titania McGrath. The give-away of her authorship is
    in one line: “the mental health crisis in the legal profession”. Priceless!

  20. KD
    Posted April 6, 2020 at 1:50 pm | Permalink

    Why not just make prospective lawyers pay a steep fee to get licensed, and we scrap the whole bar exam test because its racist, sexist and homophobic?

    I’m sure we can set up a finance company to give students of color good financing terms on credit, and put Duval Patrick and Kamala Harris on the Board of Directors.

  21. KD
    Posted April 6, 2020 at 1:53 pm | Permalink

    A better innovation would be to scrap the whole 3 years of law school business and simply license anyone passing the test and a background check.

    Of course, this would end the law school scam, and so it will never happen.

  22. Posted April 7, 2020 at 12:26 am | Permalink

    Damnit THAT kind of thing gives lawyers a bad name. Making specious arguments like that – and throwing in social justice is despicable. There’s no reason why new attys can’t have things on “hold” for a few months. The bar exam system is like the medical boards, like the boards prevent doctors from being “goop” doctors, the bar exam makes for REAL lawyers. Which we do want, however irritating (insert lawyer joke here). 🙂

    I know b/c I passed the (hardest) NY state bar in 2002 and I am a lawyer. I hate to say “these whiny kids get offa my lawn” but “Get…”
    You’re right “on point”, Prof. Coyne.
    D.A., J.D., NYC


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