Legal Law

Bar Examination ‘Socially Distant’ Seating Doesn’t Look A lot Completely different Than Its ‘No Dishonest’ Seating

Have you gotten the impression that some of these state bar examiners, despite everything going on around them, still care less about the risk of spreading a potentially deadly virus than maintaining the integrity of their “process”? Because that’s certainly the impression we’ve gotten when states tout their safety protocols only for it to come out that they didn’t even bother approaching public health officials until a few weeks before the exam.

Montana’s bar exam isn’t the biggest that will take place, but that doesn’t mean it doesn’t carry with it a great deal of risk. Indeed, many of these smaller exams carry heightened risk because they do not support multiple testing sites and therefore concentrate applicants from all over the state in one location becoming the hub of a future wheel of outbreaks.

A petition was filed seeking emergency diploma privilege for those planning to take the July exam. The petition, brought on behalf of 63 of the 68 graduates, was also supported by 83 Montana attorneys, including 4 retired state Supreme Court justices.

In response, the bar examiners fought like a rabid dog over a bone to protect their carved out law school trivia fiefdom, arguing that around 25 percent of people fail the exam — neglecting to point out that this is a manufactured number decided upon by the bar examiners. In fact, the whole cut score process should have given us a clue as to how bar exam season would go. It’s not like a driving test, cut scores are set based on the prediction that they will result in a reasonably predictable 20 percent or so of examinees failing. These are people who literally set the scores of their test to justify their jobs — obviously they care more about preserving that role than anything else up to and including a pandemic.

The response also takes a dizzying spin of circular argument roulette:

Taken to the extreme, if we cannot safely administer a bar exam, the
Supreme Court cannot safely sanction jury trials in courts of our state, as many of the same issues exist.

Yes, that would suggest that! You also probably have a terrible plan for administering jury trials right now.

The court rejected the petition, noting that the state eliminated diploma privilege in a 1980 opinion on the grounds that there was no longer a value to encouraging people to attend law school at the University of Montana. What that has to do with the current bid for diploma privilege is unexplained. Regardless, the court accepted the bar examiner position that all applicants “will have 116 square feet of room for their sole use.”

That certainly sounds like a big number. What does it look like?

I dare say you’d get fidgety if someone stayed that close to you in a grocery store for 3 minutes let alone for two 12-hour days. Just like the layout in North Carolina, these estimates of personal buffers sound huge in the abstract but become somewhat terrifying when seen in reality. Or at least they sound huge to people in Montana — here in New York we know exactly what 116 square feet looks like because that’s the size of our dream home.

Still, this doesn’t look like much more than pushing the usual “anti-cheating” distance an extra foot at most. There’s just a complete lack of seriousness on the part of the bar examiners going forward with these tests. There’s exactly ZERO evidence that the test protects the public, it’s just… this thing we do every year.

Good luck everyone. And remember, we depend on your tips to cover bar exams across the country so please let us know what’s going on… good, bad, or indifferent. Reach us at [email protected]

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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