Tuesday, April 19, 2022
This week in academic/ bar support scholarship:
1. D. Bowman (unaffiliated) and T.M. Miguel-Stearns (unaffiliated), Arizona's Diploma Privilege: There. . . And Back Again? (Arizona Attorney, Fall 2022).
From the abstract:
The Bar Examination is a longstanding hallmark of the legal profession, with most states administering it in some form for at least a century. This gateway into legal practice, however, has not always been viewed as a necessary, or even useful, way to ensure the competent practice of law. In the early 1900s, numerous states—including Arizona—allowed law-school graduates to be admitted to the bar based “upon their diplomas,” under certain conditions. And this “diploma privilege” is not unheard of today: it is still practiced in Wisconsin and a limited version is recognized in New Hampshire. The diploma privilege assumed special significance during the COVID-19 pandemic after several states elected to temporarily admit recent graduates without examination.
This Article discusses Arizona’s brief jaunt with diploma privilege from 1919 to 1925, when law graduates of the University of Arizona were “admitted to the bar of Arizona on their diplomas.” An examination of this history and of the arguments expressed for and against revocation of Arizona’s privilege reveals that conversations about diploma privilege have not significantly changed over the past century. The Article then surveys the continued existence of diploma privilege today in Wisconsin, New Hampshire, and five other jurisdictions during the COVID-19 pandemic.
This Article also briefly discusses the rise of the bar exam, its endorsement by accrediting bodies, and its hold on the legal profession today. Of course, some view the bar examination as a proper rite of passage. Others believe it is an important safeguard protecting the public from incompetent attorneys. Some have found it to be a formidable barrier to legal practice. For many, it is yet another mysterious and formalistic fixture of the legal profession. This Article grapples with these competing viewpoints and, in closing, invites Arizona’s legal community to rethink the utility, efficacy, and fairness of the bar exam, and to consider alternatives to examination that could bestow significant benefits upon Arizona’s residents and legal community.
2. S. Thaxton (UCLA), A Comment on Sander and Steinbuch's “Mismatch and Bar Passage: A School-Specific Analysis” (SSRN March 31, 2022).
From the abstract:
Richard Sander and Robert Steinbuch’s “Mismatch and Bar Passage: A School-Specific Analysis” presents a statistical analysis of the “law school mismatch hypothesis” in an effort to explain racial differences in the likelihood of passing the bar examination. Sander and Steinbuch (S&S) claim their analysis is an improvement on prior studies of mismatch—which relied on data from the Law School Admission Council’s (LSAC) Bar Passage Study (BPS)—because their data are (a) more recent (the BPS is nearly 25 years old) and (b) permit the construction of a school-specific measure of mismatch than was not possible with the BPS. These improvements, notwithstanding, several conceptual and methodological mistakes previously identified in the empirical literature on mismatch analyzing the BPS data are present in S&S's study of school-specific data, thereby calling into question S&S’s conclusion that “the mismatch effects in their models can therefore account for the large disparities in bar passage across racial lines.” This paper identifies six problems with S&S’s empirical analysis and attempts to propose a sensible solution, or set of solutions, to each problem.
[Louis Schulze, FIU Law]