Bar Exam Working To Prove Its Own Irrelevancy

Episode Notes

Transcript

[Music]

 

Joe Patrice: Hello.

 

Chris Williams: Hello.

 

Joe Patrice: See.  I was so excited that I was going to get through a whole intro without being interrupted.

 

Chris Williams: And why is that?

 

Joe Patrice: Well, because I’m Joe Patrice from Above the Law and that’s Chris Williams from Above the Law and we are hosting this episode of Thinking Like a Lawyer because Kathryn Rubino is not available, which led me to believe that I would be able to give an introduction in peace, however, apparently, she has an accomplice who was —

 

Chris Williams: Kathryn is always here in spirit.

 

Joe Patrice: Yeah, I guess. So, we’re editors at Above the Law and we do this show to give you an update on some of the biggest stories in the legal world of the past week, think of us as your half-hour digest of everything that’s been in the website of note.  So, yeah, but we begin as we always do with some small talk, which we mark by a little bit of a fanfare.  So yes, so some small talk about life, what’s going on Chris?

 

Chris Williams: I think we should change it up a bit and you should go first Joe, how’s life been in last week, what you’ve been doing?

 

Joe Patrice: It’s been a little hectic.  I’ve been driving back and forth from here to the city.  Like I’ve had a bunch of meetings, bunch of the situations where I — it’s easier for me to get hotels to stay over because I have early morning meetings but, you know, back and forth constantly.  I have to go back down again tomorrow.  So, it’s been very hectic for me.  A lot of meetings leading up to some of the big tech shows that are coming.  So, I’ve been in a position to meet with some people who are in New York leading up to those.  I have a meeting with some recruiting directors.  Just lots of stuff like that.

 

Chris Williams: The life of an A-list celebrity.

 

Joe Patrice: I mean, I think we’re very firmly D-list, but we are very big on that D-list.  To a very, very narrow group of people we are very important.

 

Chris Williams: You heard it here, from Joe Patrice, Above the Law, on the big D-list.

 

Joe Patrice: Yeah.  To a group of people we’re very important.  But yeah, no, it’s been very hectic.  How about you?

 

Chris Williams: The opposite.  I’ve been chilling.  Doing a lot of sleep, catching up on sleep, introducing my partner, the name is Aquila, to this show called JoJo’s Bizarre Adventure and we just hit the third part where in Egypt at DIO’s Mansion for everybody who’s also a jo brow and shit is getting real.  Shit is getting real.  It makes no sense to somebody that’s not watching the show, but for everyone that is watching, Iggy just finished fighting a pet shop and it was very gory and great.  I highly recommend it.  Legal analysis is great but if you want to get into something, that should be a whole bunch of IP law.  You should really get into JoJo’s.  All the characters have like bad names and stuff.  It’s cool.

 

Joe Patrice: Okay.  So, with that, I think we can put a capper on our small talk.  I use the alternative sound effect for that one.  So, yeah.  So, there’ve been a lot of things going on in law.  A lot of overlapping things.  Let’s first talk about — because I think it’s — it wasn’t the biggest story necessarily traffic-wise for us but it is one of the most important stories for our core audience.  Those of you who have been around a long time, both in practice or have gone through in law school, considering law school, let’s talk bar exam.  The bar exam — the July Administration which is always the big one of the year happened last week.  Look, compared to the virtual bar exam we had at the height of lockdown it was not that disastrous.  That administration was terrible, of course, notably so as the software glitched all over the place flagged the third of test takers as cheating because they jostle in their seat at one point.  Bad stuff.  We are back to taking it in person.

 

Chris Williams: To be fair, I just want to clarify, Joe saying not being that bad is like saying, well, the Travis Scott concert wasn’t a fire festival but they are both bad.  (00:04:26) This is not selling on behalf of the bar exam.

 

(Voice Overlaps)

 

Joe Patrice: Absolutely, and I very — I think I said comparatively at some point and I’m leaning into that word.  It was still bad and we had – obviously, we talked on the show before about the $53.00 sandwiches that New York was selling to stranded test-takers.  We had the instance where somebody was told they weren’t allowed to take the exam because their fingerprints weren’t clear enough.  They don’t have enough ridges so they aren’t allowed to take the exam.  Ultimately, that story achieved enough notoriety that the bar examiners reversed themselves at the last minute, which was nice.

 

(00:05:04)

 

But, yeah, we had instances of proctors not showing up, forcing delays.  We had internet outages, bad stuff.  But the absolute worst thing that we had happen is after years of everyone criticizing bar exams for being out of touch and having nothing really to do with determining if somebody’s actually able to practice law in the modern era.  The bar exam decided to double down and say, well, if you think that we aren’t teaching the modern era, here’s a bunch of rule against perpetuities.  Asking to rule against perpetuities questions, which most jurisdictions have abandoned or abandoned in favor of a more streamlined version but you know, bar exams is going to bar exam

 

Chris Williams: Because I think — and this is one of the things that I gathered from going to law school is that law school is not about real-world application.  It is about tradition.  You can have inf amount of data that supports that the Socratic method that law teachers to use (00:06:13) in stills anxiety more than a wheel to learn.  Teachers just don’t want a cold call because they love the adrenaline rush of making some person fret over not missing — over missing a sentence on page 394.  Also, Godspeed to the dude who initially couldn’t take the test because of his finger ridges.  Is allowed to take the test and it’s then hit –

 

Joe Patrice: Then immediately hit with the sort of garbage.

 

Chris Williams: Yeah.

 

Joe Patrice: So, the rule against perpetuities questions are annoying.  A lot of — the criticism of law school and for those of us who have advocated that maybe we should have a system that leans more towards diploma privilege, basically.  A system that would instead of forcing folks to take a one-shot generalist exam and therefore get a license to practice forever, we would instead say something more akin to you went to an accredited law school which means you have to have over the course of those years ticked off the following accomplishments.  And if you’ve done that, then you get to be licensed and then having a more robust continuing education system that does more periodic checkups, probably specialized check-ups in a profession that’s more specialized et cetera.

 

Chris Williams: Are you advocating for the notion that spinning $150,000 is enough that the things that come to spending a $150,000 should prepare you to do the thing.  What?

 

Joe Patrice: Yeah.

 

Chris Williams: That it doesn’t require an extra three months of preparation.

 

Joe Patrice: Yeah.  And the knock on that, the people make is that law school doesn’t actually teach real world application, that it teaches more high theory sorts of garbage, which is certainly true in the moment.  But what you’re going to do is ask rule against perpetuities questions in a world where most jurisdictions have abandoned that, then how much better is the bar exam.  And I just think that you’re much better off with a law school that’s teaching people how to — we should have a sound effect for when we name check the show.  A law school that’s able to make you think like a lawyer.  And then, you get your practical education either through somebody who’s hired you or you have — I don’t know.  There could be something akin to the bar exam that is a series of specialized courses and they specialized professional skills exam or something like that.  But the idea that the law schools are not prepared because they’re too theoretical completely falls apart when you start asking these kinds of questions which nobody was expecting which was a real brutal kick in the head for all the folks taking the test.  Hopefully, you all — if any of you are listening who did go through it that you managed to remember your 21 years, if it must vest at all within the life of a person, you know, that that whole stuff.

 

Chris Williams: Yeah, so it would have ruined — so for example, it clearly would have ruined Joe’s chances and like the stuff that — what did you do?

 

Joe Patrice: You know what’s weird?  Is I actually was pretty good at it at the time.  It is a logic puzzle, basically.  And once you once you kind of master that logic puzzle, you can untangle it pretty easily.

 

Chris Williams: No, what I’m saying like when you’re – what was your practice area?

 

Joe Patrice: I did mostly white color defense.

 

Chris Williams: All right, so imagine, just for practical scenario.  Imagine that you have a person, mission statement, I want you to do white collar defense, does very good in a white collar defense classes, does not pass the bar because they didn’t realize that the house vest to Timmy instead of Sarah.  Like that has nothing to do.  The reason they went to law school or their practice area.  That’s ridiculous.

 

(00:10:10)

 

Joe Patrice: And this is the whole — this is the reason why there needs to be some — and look, the bar exam people try to make this — the bar examiners are very aggressively trying to make this some sort of holy war where everybody’s out to get them and they are going as as far as in past years making veiled threats that they would ding people who criticize them through character and fitness investigations, which is horrific.  But there are multiple paths to — multiple alternative paths to managing a licensing system and we just stick with this generalist exam and it’s dumb because as you point out, the practice of law is no longer generalist, there may be some generalist out there and we can devise a system for them, but the vast majority of people choose where they go.  If they’re doing a bunch of real estate closings, they don’t need Crim Pro.  If you are doing a series of like personal injury, you don’t need to know much about mergers and acquisitions.

 

There are so many very specific practice areas that the law has gotten very specialized and the idea that we force everybody to cram in their head for three months to take a one-shot closed book memory exam of everything makes no sense.  Whether it’s a diploma privileged program or a program that tests more on ethics and then has maybe certificates for different practice areas that you get licensed in, that makes the whole job of being a licensed lawyer be more specialized, whatever it is there are alternatives and every day that we stick with this kind of fundamental belief that the bar exam has to be what we live with because that’s what people lived with in the past, we ignore the actual time needed to explore alternatives and see what gets the best result.  But anyway, what’s that?

 

Female: It sounds like a telephone.

 

Joe Patrice: It does but we’re in the middle of a show so we can’t –

 

Female: Somebody quick get that, someone who’s not me.

 

Joe Patrice: Well, and that’s where you could bring in virtual reception services like Posh.

 

Female: It was like exactly what you should do.

 

Joe Patrice: So, let’s hear from that.

 

[Music]

 

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[Music]

 

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[Music]

 

Joe Patrice: So, let’s talk now about everybody’s favorite justice.  So, Clarence Thomas made some decisions last term.  His wife made some coos last term and between the two of those things, folks got a little irritated at George Washington University School of Law that the school continues to get a kick back to this guy to teach and I use air quotes as heavily as one can use air quotes to teach a seminar.  This is a thing that happens where some of these justices get gigs at law schools where the law school gets to slap the name of a justice teaching, a one hour a week or something like that seminar in the off term.  Give them the most they possibly can, which I think is 15 grand under the current set of rules.  Give them 15 grand of extra money.  Some co-teacher probably does all the actual work and the school gets to claim that they’re more important than they are because the Supreme Court Justice works there.

 

Anyway, George Washington folks were a little peeved that the school continues to use their tuition money for this both because they didn’t see why it should be going to somebody who actively put some of their lives at risk.  But also, what really is the academic mission being accomplished here when your version of constitutional law is backward engineering some result based on whatever your contemporary political practices are.  Is anyone actually learning anything?

 

(00:15:12)

 

Chris Williams: No, clout.  The mission is clout.

 

Joe Patrice: Well, and then if you could point to, he’s hired all of his clerks from George Washington and maybe you’ve got something going, but if that’s not happening, then you really aren’t getting anything out of it, anyway.

 

Chris Williams: I think we had covered earlier with the bar exam application that lawyers typically don’t care about like practical outcomes.  It’s a theory.  The theory is what’s important.

 

Joe Patrice: So, the school got a lot of — there was a big petition about this.  The school said, well, we’re not going to fire him because we believe in academic freedom.  And look, we’ve heard this academic freedom discussion a lot.  It’s being bandied about Alito’s work with Duke.  This is — you and I both covered Amy Wax, not mercifully a Supreme Court Justice, but a professor at Penn who uses her job at this point to just kind of say, go on random podcasts and say awful stuff.

 

Chris Williams: Thinking like a beget.

 

Joe Patrice: Well, she now has a defense fund up at GoFundMe to try and raise money so that she can — I don’t know.

 

Chris Williams: Slur Asians and blacks.

 

Joe Patrice: Well, no, I mean, she can do that for free.  This is the — the fund is so that she can hire lawyers to intimidate the school, I think of cohort which is considering some measure of sanction at this point.  But the real question is what is academic freedom mean and does it mean the school has an obligation to shrug off everything and you know, there has to be — I’ve said there has to be some sort of limits because at certain point academic needs to be a modifier to freedom in the words academic freedom and it isn’t you just get to do whatever, you get to do — you get to explore other ideas in the interest of pursuing an advancement of scholarship.  You have to be free to take a non-orthodox stance in order to test your hypothesis and see if it’s right.  We’re not doing that here.

 

Chris Williams: What you’re saying sounds something like there should be some equivalent of teachers not being able to say there’s a fire in a classroom without being fired, there is now way.

 

Joe Patrice: No, obviously not.  Obviously, you can say fire in a crowded theater in all, that sort of stuff, but like when the —

 

Chris Williams: That may have been tongue-in-cheek.  I meant that.  I think that the things — the things that people say need to have, I don’t know, like some bases other than being the same thing or drunk at a dinner table.  I think that the fact that Amy has been able to do this for what, like a decade now, some change.  Yeah, I think it’s abhorrent and there’s some point at which academic freedom is just being used as an excuse to say whatever you want and whether it’s not academic and if it’s not academic, it shouldn’t fall in the protection.  The same way that like threats, especially —

 

Joe Patrice: And that’s the thing, like freedom, you can’t yell fire in a crowded theater despite of decision that once existed that has since been overturned.  But like that’s a broad-based freedom.  Here, we’re talking about schools which had private interest in particular in a place like George Washington or Penn.  These are private schools and they’re hanging on an idea of academic freedom, which is a concept that is a subset of freedom generally about offering some sort of freedom toward the advancement of education and scholarship.  And there’s nothing here to suggest that there’s heterodox views being taken for the purpose of advancing the learning Mission.  It’s giving a guy an extra bit of money to do story time because I’m an important supreme court justice or in Wax’s case, not even letting her do anything anymore and she’s not publishing — the stuff that she’s getting trouble for is not stuff she’s publishing or like going through any kind of a peer review process or anything.  She’s just spouting stuff on TV and nationalism conferences.

 

Academic freedom needs to — like you said.  Like academic freedom needs to be gauged by something and so — but don’t worry, we’re going get a bunch of Jonathan Turley complaining about this or something like that.  So, this is certainly not over.  Speaking of private schools, let’s transition to a little subtopic here.  So, speaking of private schools, private schools do have the ability to have rules because their private schools and that’s something you talked about this week.

 

Chris Williams: Right.  There was a law school, that will remain unnamed, and they had email that went out that basically said, to despair other person or group because their status of race, color, religion, national, origin, gender, sexual orientation, age, socioeconomic class, or disability is antithetical to our tradition.

 

(00:20:08)

 

All the good PC stuff, but the effect is that it was like it had a lot of — there are good people on both sides and the sides are Nazis and people fighting for civil rights energy.  Like it was we will not allow for any racism so advocating for clan rallies bad as is saying, I don’t know, probably something like reparations ought to be considered, right?  Of course, they will have racial implications but the way that they’re weighted is not the same and to equivocate them is the problem.

 

There was another thing that was like because we stand for life, there will be no allowance of saying things like abortion is acceptable.  And especially in classes, would like say con law, you know.  It’s saying if you play devil’s advocate, you will face consequences.  And one thing is, there’s so much conversation about the right being silenced and universities being liberal spaces, but I see heavy – the heaviest censorship that I see tends to be from right-leaning sources, right?  For people that won’t be in silence, they don’t seem to ever shut the fuck up.  Shouts at the Ny.

 

It was a thing where — (00:21:26) I was like, I did not expect this to happen and some of the responses were, duh, you went to a catholic school what did you expect.  But I think that they have a certain point.  It was like, you still expect there to be room for differences of opinion back to that academic freedom thing.  To let freedom that supposed to be happening in classrooms and I just thought that was interesting for people to breathe through and works — it was a nice reddit thread, had a bunch of different opinion.

 

Joe Patrice: It is an interesting question, right?  Like yeah, private schools and particular private religious schools, I have all the rights to do within certain — I shouldn’t say all the rights, but lots of latitude to control how they operate.  On the other hand, bringing us back to the earlier bar exam conversation.  If we’re looking at models of licensure that rely on law schools accomplishing certain minimum standards of curriculum, then there has to be a moment where you say maybe you can’t be a law school that gets that privilege if you aren’t covering.  I mean, I guess teaching abortion at this point it’s not part of common law anymore.  As of this year but yeah.

 

Chris Williams: One example is based off the email like it would be fine and dandy to stand up in a common law to say I think that gay marriage is an abomination and sodomites ought to be punished but it is not okay to stand up and say orbit fell was decided correctly.  So it actually prevents discussions about things that are currently law.  Like I would imagine if teacher being under fire if they taught (00:23:08) in a way that or maybe even loving depending on certain readings of ham in the Bible that weren’t — immediate like, can you believe what these heathens let pass.

 

Joe Patrice: Yeah, no.  I’m trying to figure out.  So, is this the — so, there are multiple catholic universities and I didn’t really read your thing closely enough, which school was this one?

 

Chris Williams: Well, excuse me, I have to go cry now.  I thought I was special.  Like I said, I didn’t name it because the original poster on the Reddit thread didn’t name it themselves.  So, I would have had to rely on people making assumptions.  It may have been Notre Dame but I don’t know.

 

Joe Patrice: I would doubt it’s that.  My guests — I have a guess which one it is that –

 

Chris Williams: Actually, I think Norte Dame may been the school that was mentioned as a catholic school that wouldn’t do this.  So, again, this isn’t official.

 

Joe Patrice: Norte Dame had the issue that they just let Sam Alito give a speech in Rome in which he went full on crazy.  That’s another story that we aren’t even necessarily getting into here.  But if you are at all interested in what the future is about to look like, Sam Alito went real bonkers in this room speech explaining that all rights are only to be viewed through the lens of religious liberty and are all contingent upon on it.  So, your freedom of speech really — there maybe externalities but it really only rests on the ability to speak as in give prayers and proselytize and everything else is subordinate to that.  It was some fun times but I would not think that the administration of Notre Dame would be behind that.  I would, however, think that Free Pizza University would be which is another Catholic oriented school that is run by pizza people.

 

(00:25:00)

 

All right.  So, let’s close off today by talking just this is one of those victory lap moments for those of us who write in this space.  So, we get to kind of, you know, take our bows.  Yeah, that’s right kids.  Everybody who went nuts when Nichola Sandman, better known as the Covington Catholic Kid.  The kid wearing the Trump had while smirking as Native American activist was getting epithets hurled at him.  That video went viral.  There were a lot of news stories about it.  A lot of people — then after those news stories came out opined upon it as this is kind of a troubling trend of racial insensitivity that seems to be very tied to Trump fandom.

 

He sued a million and one media outlets for millions and millions and millions and millions of dollars.  Some of them settled for undisclosed amounts, but rumored to be in the low Millions.  When that happened, a lot of folks started saying, well, this is just sign of how much he’s going to win and all these people who haven’t settled are really going to pay.  Those of us who understand law said that’s not going to happen.  He’s going to lose all of these cases.  The media is going to win every one of these cases.  They have won all those cases now.

 

The people who settled, yes, they did settle for some amounts of money, but as we kind of opined at the time, it seemed as though those amounts of money were in line with paying off a nuisance suit.  It would have cost to CNN few million dollars to drag this case all the way to a trial and then at the trial, there is a risk that you lose, even if the law is on your side.  At which point you have to deal with appeals and work on all that and if you chug all that into a calculator you can come out and say you know what, even if we don’t think we’ve done anything wrong it is a savings for us to give him a few million dollars rather than spend it on the case and that’s what was going on with those settlements we said.

 

Other people said no, no, no, this is clearly a sign he’s going to win, he I didn’t.  And he didn’t because none of these cases ever made much sense.  The claims that were allegedly defamatory were mostly not factual claims.  They were opinion statements about the facts.  The factual claims were he was there wearing a trump hat, was a trump fan, was the person in this video was able to hear these people yelling epithets, all that sort of stuff.  Those never really got challenged in the case.  There was one tiny issue about whether or not he was blocking the ability of the activists to escape.  That is a factual claim.  That did get explored in this case and resolved in the activist’s favor — while in the media’s favor there too.  But most of the claims that were allegedly defamatory were all opinion claims saying that given these facts, we think this looks racist or this looks like he’s a jerk.  Those may be hurtful things to say, but they are not defamatory things to say because their opinions which was obvious to all of us when the complaint first dropped.  And now, finally, as this has come to an end, we get to take our little victory lap that.

 

Chris Williams: That guy had a very punchable face.

 

Joe Patrice: Yeah.  See, now that’s an opinion.  See, there’s nothing defamatory about that.  Now, contrast this, of course, with the next up-and-coming defamation suit that we’ve heard about, which is that the Wall Street Journal reported because they were having just kind of a rough go of it these days.  The Wall Street Journal reported the other day that Elon Musk had an affair with the soon-to-be ex-wife of one of the Google Founders.  And she and through her lawyer has said that this is not true and we are taking the stance that this is defamation, and the Wall Street Journal should proceed accordingly.

 

Now, that’s a factual claim.  That’s not an opinion about what it would mean if you slept with Elon Musk.  You are saying you cheated on your husband with Elon Musk.  That is a factual claim.  That is something that if it is untrue could be defamatory.  If it looks ill on your reputation which having an extramarital affair would and that’s really what’s allegedly defamatory, not sleeping with Elon Musk per se though frankly that also, I think, probably hurts your reputation.

 

Chris Williams: I will say, if she has a kid whose name looks like it could be a bit of HTML that could be evidence for it being true.

 

(00:29:55)

 

Joe Patrice: No, So, Shanahan is the woman in the story, of course, this brings it all full circle of course because she used to run illegal tech company.  So, once again, legal tech, the important place we’re all in the headlines, we’re all the important stuff it’s happening.  I think we’re done, probably, right?

 

Chris Williams: Cool with me.

 

Joe Patrice: Yeah, all right.  So, thanks everybody for listening.  You should be subscribed to the show so hear new episodes as soon as they come out.  You should give it reviews, stars, write something, it shows engagement, that means algorithms like us and that’s always good.  You should be reading Above the Law so you can hear — your CDs as well as some other stories before you get to the weakly round up like this.  You should be following us on social media.  I’m @JosephPatric, Chris’ at Rights for Rent.  You should be listening to the Legal Tech Week Journalists Roundtable that I’m on, especially since we just talked about how Legal Tech is so important to the real-life headlines, right now.  You should be – listen to the other shows on the Legal Talk Network, of course.  And I think with all of that, I think we might be done.

 

Chris Williams: Also follow Kathryn1.

 

Joe Patrice: Yeah.  I mean, she’s not here.  I feel like the bare minimum is that you got to be here, right?  Anyway, we will talk you folks later, bye.

 

Chris Williams: Have a good one.

 

[Music]

 

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(00:31:47)

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