from the naked-emperor dept
Thousands of law school graduates sat for the bar exam this week. It has long been questionable whether this semi-annual process of testing lawyers is in any way a valid method of determining whether a lawyer is qualified to practice. But the egregious way bar authorities have altered the administration of the test to respond to the pandemic has made it clear that the answer is no.
In theory, how lawyers become licensed to practice shouldn’t really be a technology topic. On the other hand, here at Techdirt we do talk about law, and sometimes that means we need to talk about the role lawyers play in our legal system so that law can be effectively and equitably administered in a way that protects liberty. And sometimes that means that we need to talk about how technology may interfere with that role.
We also regularly chronicle when awful lawyers do actually cause real harm, and we cheer when their bad behavior is finally checked. Lawyer licensure is one way that bad lawyers can be checked, and that’s why we need to care when the systems we use to license lawyers themselves need to be checked. Especially when, as now, those systems have deployed technology in a way that just further betrays any credible principle underpinning the licensing system.
Even before the pandemic the system was already straining credulity. While on paper it makes sense for bar admissions authorities to test the competency of new lawyers before admitting them to practice, it has been increasingly apparent that the actual exams being administering generally do no such thing, instead testing them on irrelevant knowledge that will be of little use to them in their jobs, and under circumstances that in no way align with those they are likely to experience as part of the actual practice of law. While there are occasional moments of potential utility, the bar exam, on the whole, has become little more than a formal system of hazing that newbie lawyers must endure before gaining entrance to the profession.
And the pandemic has only exacerbated all of those problems. As the coronavirus upended standard testing practices, it had the effect of pulling back the curtain to reveal the defects of the entire system as bar authorities responded to the moment by doubling-down on the worst of it. Because instead of using it as an opportunity to focus on what could potentially be worthwhile about the exam, bar authorities decided to make it an even more arbitrary and impossible obstacle for new lawyers to hurdle.
To sit for the exam, examinees in many states had no choice but to install insecure, invasive, and unstable remote proctoring software, Examsoft, on their own personal machines (and in some cases expend additional resources to even come up with a machine that would be eligible for the software) in order to lock them down so that they could be used for nothing but writing exam essay answers, and surveilling the test takers while they took the test in order to make sure they did nothing but.
I still had my exam sessions crash several times, and at one point my camera turned off 10 minutes into a session. Luckily I realized it, otherwise I have to imagine I would have been flagged and my score invalidated. @ExamSoft @NCBEX
— Bree Philips (@philibree) July 29, 2021
The result of all this distrust by bar authorities that examinees might cheat on their tests was the complete sabotage of their performance on this test by said bar examiners, who had elected to employ this software despite its previous flaky performance.
— Whitney Merrill (@wbm312) July 28, 2021
Speaking of trust, it let examinees be deceived that everything would be fine, only to put them through needless stress when they found out it wasn’t.
Lol, the CA bar replied to me on Monday, before the exam, and said to follow ExamSoft's advice and use an external camera. Then they emailed me again today, during my second day of testing, to let me know external cameras are not allowed after all. This exam is ? https://t.co/z4tNiF0oWh pic.twitter.com/WwzBs7LniC
— andrea ? (@taquitararita) July 28, 2021
Mine crashed and it?s literally a brand new computer. I had to purchase it because Examsoft updated the software a week and half prior to the exam and suddenly my computer would no longer work with it. Getting a new one was their only advice. Complete incompetents.
— Jew the Bartman ? (@halfbreedjew) July 28, 2021
And it put all these test takers through this hell for nothing.
Hey @NCBEX and @ExamSoft, how can you guarantee that the *THOUSANDS* of bar exam takers who experienced crashes didn't use the significant unmonitored down time to look up answers? There is absolutely no way to grade this bar exam fairly at this point.
— Everett S (@CornBreadFan2) July 28, 2021
Horror story after horror story after horror story accumulated during the days of the test as examinees, who in many cases were taking the most important and taxing test of their lives, found themselves with frozen machines, busy support lines, and constant reboots chewing up the finite time they had available to complete the test.
Shoutout to @ExamSoft whose software crashed in the middle of my bar exam and now has my laptop locked in a white screen I can?t escape while I wait for 30 minutes on hold for someone to answer. Thank you for wasting a year of prep and 1000?s of dollars.
— natasha c (@TashaC_93) July 27, 2021
The upshot: for many, the ability to finally earn a living in their new career, despite the immense amount of time and money expended, will be derailed by this fiasco, as many a qualified lawyer will unjustly fail the test thanks to the software failing to work.
"Technical issues" meaning that hundreds of people will need to waste another 6 months and several thousand dollars (not to mention lost income) retaking the exam.
(You know, the one they cram test-specific knowledge for, and that *practicing law* is likely to make them forget.) https://t.co/6ruwpd2XHu
— Kat Walsh (@mindspillage) July 29, 2021
Such an outcome is inexcusable, unnecessary, and bad for the profession at large.
I certainly hope @WAStateBar, @JudgeMaryYu, and the other members of the WA Supreme Court are paying attention to what's happening with @ExamSoft and @NCBEX – we cannot rely on shoddy software and uncaring (and incompetent) overseers to determine who joins our profession.
— Alan Mygatt-Tauber (@AMTAppeals) July 28, 2021
It’s bad for the profession because it has the effect of locking out scores of people who could actually be good lawyers. Even pre-pandemic, the bar exam had the effect of keeping out smart, capable people who simply don’t test well, or who could not afford the extra cost of exam preparation in terms of time or money. The reality is that few, if any, law students graduate from law school ready to sit for the bar exam. Nearly everyone does a separate bar exam course to prepare, which easily adds several thousand dollars to the cost of an already extremely expensive legal education. (Plus it also costs a lot of money to even sign up to take the test in the first place, let alone take the time off to study for it. Google “bar loan” for what a good chunk of law grads need to take out in order to finance the endeavor.) The profession already suffers from a lack of diversity by driving away those who can’t afford the enormous cost of pursuing it. Having additional arbitrary hurdles connected with the test only worsens that lack of diversity, and adding even more, through imposing these insidious remote proctoring requirements, will only exclude even more qualified people, and for no good reason.
Because these proctoring requirements are also unnecessary. Treating examinees like presumptive cheaters, especially at the expense of testing their actual competence, does the profession and public a huge disservice. The reality is that the practice of law in the United States is not a memorization game. In fact, relying solely on memory is likely to be malpractice ? good lawyering almost always requires looking things up to be sure. The trick is to have enough familiarity with the law to be able to spot the issues that arise and know how to efficiently look up the specific law that applies to them, which are the skills the exam should be testing for. And that means that a timed, open-book test would do a vastly better job meaningfully assessing law graduates on their readiness to be lawyers than this bizarrely patronizing and punitive system currently does.
And it’s inexcusable that this is the current state of affairs. It is bad enough that even in normal times bar authorities so heavily policed test takers that they forbade menstruating women from having sanitary supplies available (or forced them to show them off publicly). But the pandemic protocols have completely forsaken any claim on the bar exam being anything close to a socially valuable exercise. Instead these protocols have revealed it to be little more than an arbitrary exercise of power by bar authorities, who seem to be utterly confused about why we have bar authorities in the first place.
The job of bar authorities is to help shore up the administration of justice, not directly undermine it with pointless displays of authority over people’s lives and livelihoods. The ghastly irony here is that the very same stakes that have driven bar authorities to automatically suspect every bar candidate of cheating and to impose these onerous remote proctoring rules are the very same stakes that they have shown themselves to be completely indifferent to by imposing these with these very same onerous remote proctoring rules, with potentially devastating and undeserved results to perfectly capable bar candidates’ futures. In the wake of these misplaced priorities it is impossible to believe that these same authorities can be qualified custodians for anyone’s interests, including the public’s. And by so abdicating their legitimacy as stewards of the profession they make it impossible to credibly act as such, no matter how much the public, or the profession, might need them to.