Any day now, I and thousands of others will find out if the National Conference of Bar Examiners (NCBE) and the DC Court of Appeals will let us be lawyers, following a grueling and deeply anxiety-inducing summer of cramming hundreds of widely varying legal concepts into our heads while the world imploded.
Starting in early June, I began six-to-eight-hour days, five or six days a week, of staring at my Kaplan Bar Prep Course. That lasted right up until the DC bar on October 5 and 6, which I took online from my apartment—an unprecedented and correct public health accommodation from the DC Court of Appeals, and an act of grace that was not extended to bar applicants in many other states. But making a useless hazing ritual easier to undergo doesn’t make it any less of a useless hazing ritual.
Thanks to the dictatorial wisdom of the NCBE and passive compliance from state courts and legislatures, three years and hundreds of thousands of dollars spent earning a law degree mean almost nothing unless you’re able to also spend two days in an artificial environment accurately regurgitating legal rules that have no relationship to most lawyers’ actual work. I assure you, I will never in my life need to know that “no interest in land is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest,” and yet. Nor will the question of which of two perfected secured interests has priority arise in my immigration policy work. But at least I know if an acceptance mailed to an offeror is binding even if the offeror has already sent a revocation that the offeree hasn’t yet received (it is)! And if I ever do need to know something, I’m quite confident that my legal education sufficiently taught me how to look it up myself.
The absurdity of this system—the topics tested, the rote memorization required, the artificial time limit—has been apparent for a long time. The pandemic elevated that absurdity to new and appalling heights. If your state continued with an in-person exam, you were forced to 1) choose between spending six hours a day for two days in an enclosed room with a bunch of other breathing humans, or 2) wait six months or a year to take the next one, forgoing the ability to practice law and earn an appropriate income in the meantime.
And those of us who were able to take it online? We got to avoid a deadly virus, but were forced to use privacy-invasive software featuring notoriously racist facial recognition technology, and submitted answers using different software that crashed during Michigan’s exam. (And that’s to say nothing of all the people who didn’t have a good test-taking environment, whether that meant unstable internet or loud neighbors.) The DC Bar went above and beyond in their incompetence, storing all of its applicants’ personal information—including Social Security numbers—on an unsecured site accessible by anyone with the link and then not bothering to notify us of their error. I and dozens of others had nearly all of our saved passwords stolen.
These issues just scratch the surface. This Twitter thread going more into depth, from fellow 2020 graduate Alyssa Leader, went viral in the legal community for good reason. Prominent law professors, deans, and public interest organizations who recognized what was happening all signed on to what should have been the obvious choice for state licensing authorities: diploma privilege.
Diploma privilege simply means that if you have a law degree from an accredited university, you can obtain a law license. Before the rise of the standardized-test-taking industry, this was the norm, and Wisconsin still uses it. Lawyers still have to undergo a character and fitness application process, and states could decide to require some form of supervision for the first year or two. But diploma privilege would do away with the useless and expensive bar exam and ensure that a law degree actually has value in and of itself. I’m hopeful that the Diploma Privilege for All movement will have success reversing the inertia that currently enables this ridiculous gatekeeping system.
Studying for the bar this year was a truly awful experience, but I had it much better than many. I had a supportive relationship, a good environment, my health, and (eventually) a job offer that didn’t require bar passage. For the countless who lacked any one of those things, this year was that much harder. We need diploma privilege and we need it yesterday.