Epidemiologists project that, even with strict social distancing, about 81,670 people in the United States will die from COVID-19 infections before June 1. That’s just the first wave. Once states lift restrictions, infections almost certainly will rise again. Until a reliable vaccine or treatment is available, we face waves of social distancing and infection marked by mounting deaths.
The measures we must take to contain the virus, meanwhile, are spawning an economic catastrophe. Unemployment skyrocketed from 3.5% in February to what some economists estimate to be 13% now, with more job losses to come. Our social fabric is at risk, as we cope with enforced closeness to a few and mandated separation from others. Our legal system, which helps hold us together in times of economic and social upheaval, is struggling to function.
As we stand on this precipice, licensing new lawyers may seem like a minor concern. Health, shelter, and food are more urgent than this summer’s bar exam. But licensing new lawyers may be vital to maintaining legal services during and after the pandemic. COVID-19 has already spawned a “tsunami” of lawsuits alleging consumer injuries, shareholder losses, and workplace violations. Law firms have posted long lists of pandemic-related legal issues faced by their clients.
Low- and middle-income people will urgently need lawyers to protect their housing rights, secure health care, fight for safe working conditions, challenge unfair lay-offs, stop abusive debt collectors, protect loved ones in nursing homes and prisons, navigate bankruptcies, and access new benefits that the government has promised to provide. These are life or death issues, faced by the very individuals who already lack adequate access to legal services.
New law graduates play a critical role in serving these needs. Almost half the legal jobs for graduates are with government offices, nonprofit agencies, and small law firms – the employers who are most likely to address the legal needs of low- and middle-income clients. With the COVID-19 pandemic unleashing unprecedented economic hardship, we need a secure pipeline of attorneys to fill these positions now and in coming years. Prospective law students are watching us: Are we a profession that helps highly educated lawyers start their careers in a time of need? Or do we pull up the ladder in a crisis?
So far, jurisdictions are pulling up the ladder. Four states have postponed the July bar exam to “dates to be determined” in fall 2020. The National Conference of Bar Examiners (NCBE) has agreed to provide exam materials at three different times, but there is no assurance that an exam can be safely administered during any of those windows. Nor have plans been announced to move the exam online and offer it through remote testing. Candidates seeking to take the July bar exam have been tossed into a limbo clouded by job uncertainty, financial hardship, and deep personal anxiety.
Alternatives to this licensing abyss exist. We set out several in a paper circulated two weeks ago, and continue to post updates to a website. Jurisdictions could license lawyers based on their successful completion of a rigorous three-year JD program at accredited law schools. They could make those licenses provisional, requiring graduates to work under a more senior lawyer’s supervision for their first two years. States could impose other educational requirements, such as mandatory mentoring or continuing legal education. They could even require weeks (or months) of supervised practice before granting these licenses. Wouldn’t three years of full-time professional education plus supervised practice on real client matters demonstrate a new lawyer’s competence to practice law?
The answer from courts and bar examiners seems to be “no.” Instead, they want aspiring lawyers to take a closed-book, two-day exam anchored in 200 multiple-choice questions. Why do our courts and bar examiners place so much faith in this high-stakes exam to predict who is competent to practice law? This is a question that historians (and perhaps our better selves) will ask when we look back at this crisis in our professional history.
The legal profession’s attachment to closed-book, time-pressured exams centered on multiple-choice questions is not unique: the United States uses those tests in almost every educational and licensing context. Why has our society become so dependent on those tests to predict competence and merit? Initially, we embraced these tests – especially their multiple-choice components – to overcome bias and privilege These are objective tests, we reasoned, that can be reliably scored. The tests, we hoped, would give children from less privileged backgrounds a chance to prove their worth, secure an elite education, and obtain the most rewarding jobs.
Multiple-choice tests also reflect our twentieth-century faith in technical knowledge. The scientific advances of the twentieth century brought us enormous progress. Multiple-choice questions affirm our societal confidence that we have mastered the universe, that we know the answer to everything, from the temperature at which water freezes to which out-of-court statements will be admitted under a hearsay exception. In our knowledge-proud society, we believe that people who score well on closed-book, multiple-choice tests are the smartest.
Just laying out these assumptions raises uncomfortable questions. Standardized tests may have originated to overcome privilege, but today they do the opposite. Systemic disadvantages, starting in childhood, depress the scores of students from disadvantaged backgrounds. Test-takers who are hungry, poorly housed, working full-time, and unable to afford specialized prep courses don’t score as well as their more privileged peers. High stakes exams, from kindergarten through the bar, solidify the position of well-to-do elites.
Our networked society, meanwhile, has moved beyond simple knowledge as a marker of competence. There is more to know today, even in narrow subject areas, than any one human can master. Twenty-first century competence lies in finding information, navigating nuance, and managing conflict. Why are we testing static knowledge in a world that demands agile information-seeking, negotiation, and problem-solving? Why are we testing memorization in the smart phone age?
Closed-book, multiple-choice questions – which lie at the heart of the bar exam and other standardized tests – rely on memorization. That type of testing made sense when knowledge hid in costly cloth-bound books. But today, expertise depends on networking our knowledge to solve problems for which no one has the answer. The spread of COVID-19 makes that fact abundantly clear: there is no memorized, multiple-choice answer to treating the disease, vaccinating against it, or even devising the best protection strategies. Perhaps this pandemic will finally wrench us from our attachment to the type of competence predicted by closed-book, multiple-choice exams.
Meanwhile, COVID-19 has temporarily halted administration of the legal profession’s high-stakes test to predict competence. Several states are now considering an option that would allow law graduates to practice under a licensed lawyer’s supervision while they wait for testing to resume. This supervised practice would give graduates a welcome chance to gain interim employment, but so far courts have not suggested that supervised practice would excuse graduates from taking a bar exam. No matter how many months of supervised practice they complete, or the number of clients they competently serve, graduates will still have to take that high-stakes exam. Why?
Admitting graduates directly into practice, without an intervening test, may make some uneasy—although Wisconsin has done this for decades. Courts may not trust law professors to candidly assess their own students; we might give some students a pass when they should have failed. Courts might also distrust supervisors’ honesty, some of whom might offer a glowing review when it’s not merited. But do we distrust both systems working together? Put it this way: Suppose you retain a small law firm to handle your contested divorce. You can’t afford the senior partner’s hourly rate so the partner offers you a choice of two junior associates: The first graduated from an accredited law school, passed the two-day written bar exam, and just started at the firm. The second graduated from an accredited law school, was excused from taking the bar exam, and has spent three months at the firm, competently drafting documents, counseling clients, and appearing in court. Which junior lawyer would you choose?
Perhaps your faith in high-stakes exams is so deep that you would choose the first lawyer. But if you have any experience in law practice, you will choose the one who has proved their competence on the job – the one who has used their knowledge, skills, and judgment to solve client problems directly. The combined wisdom of professional education with on-the-job experience is much deeper than any written exam can test. Most lawyers recognize this truth early in their careers, after discovering how little the current bar exam corresponds to their practice.
Crises challenge assumptions and demand action. For this year, emergency licensing based on diplomas and periods of supervised practice would offer proof of competence. For the future, we might find a range of ways to prove competence, rather than resting on the predictions of a written exam.