Tuesday, March 2, 2021
Two articles this week:
1. Milan Markovic (Texas A&M Law), In Defense of the Diploma Privilege (February 19, 2021).
From the abstract:
The bar examination has long loomed over legal education. Although many states formerly admitted law school graduates into legal practice via the diploma privilege, Wisconsin is the only state that recognizes the privilege today. The bar examination is so central to the attorney admissions process that all but a handful of jurisdictions required it amidst a pandemic that turned bar exam administration into a life-or-death matter.
This Article analyzes the diploma privilege from a historical and empirical perspective. Whereas courts and regulators maintain that bar examinations screen out incompetent practitioners, the legal profession formerly placed little emphasis on bar examinations and viewed them as superfluous for graduates of accredited law schools. The organized bar turned against the diploma privilege as the legal profession began to diversify, and some states abolished the diploma privilege specifically to block black law students from the profession. The notion that bar examinations ensure a base level of competence is a relatively recent construct.
Perhaps this history could be excused if there were evidence that bar examinations protect the public. However, drawing on cross-state attorney complaint and charge data as well as Wisconsin attorney disciplinary cases, I demonstrate that the bar examination requirement has no apparent effect on attorney misconduct. The complaint rate against Wisconsin attorneys is similar to that of other jurisdictions, and Wisconsin attorneys are charged with misconduct less often than attorneys in most other states. In addition, the rate of public discipline against Wisconsin attorneys who were admitted via the diploma privilege is the same as that of Wisconsin attorneys admitted via bar examinations.
A carefully drafted and enacted diploma privilege would comply with the Constitution’s Dormant Commerce Clause and would incentivize law schools to better prepare students for practice. States also have more direct means to address attorney misconduct than relying on ex ante measures such as bar examinations.
2. R. Bahadur, K. Ruth, K. Toliver Jones, Reexamining Relative Bar Performance as a Function of Non-Linearity, Heteroscedasticity, and a New Independent Variable, 52 N. Mex. L. Rev. ___ (forthcoming 2021).
From the abstract:
One might think that if a law school’s graduates do better on the bar exam than their credentials on entering law school would have predicted, the law school’s faculty must have done a good job. Indeed, some scholarship makes that claim. But it is empirically untrue. What actually yields such superficially impressive results is not pedagogy but rather prestidigitation. When law schools manipulate their matriculant pools via academic attrition and transfer, that sleight of hand improves their bar performance rates. This article reveals the math behind the magic.
We challenge the assertion that effective pedagogy is the primary driver of a school’s overperformance on the bar examination by demonstrating the model misspecification of the linear regressions in support of that assertion. Our analyses, based on original code written for the program Mathematica, generate regression equations that clearly illustrate the error of applying linear regression to heteroscedastic, non-linear data, and the bias in favor of schools with mid-range LSAT and UGPA matriculants this misapplication causes.
Over and under performance on the bar examination, relative to the entering credentials of a school’s matriculants, can be explained in large part by combining the institutions’ academic attrition and net transfer rates into a single independent variable. We demonstrate the marked difference in the value of this variable between schools identified as overperforming and those identified as underperforming their matriculation credentials on the bar examination.
The article concludes by emphasizing the harm to legal education that stems from the unwarranted attribution of bar success to pedagogy and especially the harm this causes to untenured academic support faculty. We also raise the question of whether ABA standard 316—mandating a certain level of bar passage by law schools’ graduates—is ethically and morally supportable given the ability of schools to manipulate bar passage rates by modulating academic attrition and transfer rates.
(LNS, FIU Law)