Is This The Beginning Of The End For The Bar Exam?

Episode Notes

Transcript

Joe Patrice:

Hello. Welcome to another edition of Thinking Like A Lawyer. I’m Joe Patrice from Above Law. I’m joined by my colleague Chris Williams.

Chris Williams:

Yes, you are.

Joe Patrice:

And we are here doing what we do usually, which is recap the biggest stories of the week that was in legal for Above the Law. We are going to begin, as usual with a little, the Trumpet fan pair means we begin with a little bit of small talk, which happy first Monday in October when we’re recording this. Anyway. Hello. Anything.

Chris Williams:

Oh, joy. I mean, oh, spooky. I don’t know. Having respond

Joe Patrice:

To, I mean spooky, I mean spooky is correct. It’s going to be, I think my prediction is pain, but yes. So we begin the assault of modern thriving society once again on the first Monday of October. I did see that they just pinged out that they’re not taking the Jizz Lane Maxwell appeal. So I mean, she’s gotten pretty much everything she could possibly get out of this administration already, but the Supreme Court’s not going to bail her out anyway, so there’s that.

Chris Williams:

Speaking of sex crimes, Diddy has been given his sentence.

Joe Patrice:

Yeah, yeah, that’s true. Diddy got sentenced. The wheels of justice turned slowly, but they’re greased with baby oil or whatever. I don’t know. That was

Chris Williams:

Honestly, this was more medium talk than small talk. I saw the new Leonardo DiCaprio movie recently

Joe Patrice:

Over the weekend. Okay. I didn’t know he even had one. What’s his new one

Chris Williams:

Now? It’s called One Battle After Another.

Joe Patrice:

Oh, yes, yes. The Thomas Pension Book. Yeah,

Chris Williams:

Yeah, yeah. And it’s one of those things where there are just moments where sometimes an actor just really showcases their skill in the art because his love interest in the film is over 25 and it really seems like he’s attracted to her. Oh,

Joe Patrice:

Wow.

Chris Williams:

But yeah, it is. I didn’t like the film. I thought the politics of it were horrible, and I don’t want to give any spoilers to people that might go see it. I mean, it’s, it’s a nice looking film, but there’s a lot of race play and slurs, and there is a group of people whose political organization is great, shouts out to the skateboarders, but the other people, terrible job. I feel like most of them end up either dead or locked up, and it felt deliberate. And that’s about as specific of a criticism. I can give the film without I feel like ruining anything about it.

Joe Patrice:

Well, the new book comes out tomorrow. I think so. I think it’s a detective book this time, so be interesting. The new book. Yeah. Thomas Pin’s newest book comes out tomorrow, so he’s like one of these reclusive novelists who writes a book every 10 years and then disappears again, that kind of thing. So He Wrote the book that that movie is based on, and then his new one comes out tomorrow. I’ve seen reviews, but I haven’t really dug into what it’s about or anything.

Chris Williams:

Speaking of taking time to make art in honor of Kathryn Rubinos absence, I feel like somebody has to acknowledge the new Taylor Swift album. There is so much backlash in that from people who were presumably beat Swifties. It is just nice to see. I saw some of the reviews. It was like, we know she bought this. There’s no way this got a hundred. Yeah,

Joe Patrice:

It does. It did seem like a half cooked version of one of her albums almost as though she needs somebody around to tell her, okay, not every track needs to make it, but whatever. I did see somebody on social media said she may be the first person to ever get sexually transmitted CTE. I thought that was funny. Yeah, no, it just fairly weak outing all things considered, and I’m not the big fan that Kathryn is, but I mean, I think generally speaking, Taylor is pretty good, but this was kind of like a collective meh, but whatever. Okay, so we’ve talked relatively small. Let’s dig into the stories of the week. A big story going on that impacts a small group of people for now, but hopefully can be the precursor to a broader movement. Utah has opened up the door to an alternative path to getting a law license that doesn’t involve theBar exam.

Chris Williams:

That’s when you hit the fanfare button on the sound

Joe Patrice:

Board. Yeah, I mean, I did wonder about that. I was like, oh, I can’t hit the trumpet again. I should No bar exam. Yeah, no, no bar exam, which is very exciting for the lot of us who think that theBar exam is a total waste of money and effort.

Chris Williams:

Well, some of the things I think is super interesting is that given the alternate pathway to licensure, it’s not like there won’t be tests, but the thing is, they want to have a test that should a person who is currently licensed and a good lawyer, should they pick it up, they be also able to pass that, which is much a far more intuitive way to approach a licensing scheme than whatever bullshit we have now. But just think, you think Neil Kaia could pass theBar right now? Yeah, nobody can.

Joe Patrice:

Yeah, and nor should they be able to, because one of the big knocks on it is it’s a generalist doctrinal exam. If you dedicate your life to 30 years of being an M and a lawyer, what do you know about the rules of hearsay? You wouldn’t, yeah, no. I spoke with a member of the task force who put it together, and one of the things Professor Bramble told me was that the logic was in a lot of ways for the test portion that takes place. So I’ll break down. Let’s take a step back. So this alternative, you can just still take theBar exam if you want, but this alternative leans on both curricular accomplishments. There are some classes you need to have taken and so on, as well as practical supervised work. They have a 200, and I think it’s 240 hours off the top of my head, requirement of supervised work plus the A BA now requires law schools have six credit hours worth of practical supervised work, which over the course of a semester’s a lot such that it ends up being around 500 hours of supervised work.

And then on the back end of that is the written exam that they’re creating. That, as you pointed out, is designed to be something that a competent attorney could pick up and take today. One of the things that the professor was telling me was that the thinking in the room when they were coming up with the plan was largely if this is about testing minimum competence and somebody who’s a experienced practitioner can’t pick it up and pass it, then either everyone’s incompetent or the test is wrong. And so there’s a plan to have a test that will be a closed universe that will draw on themes that lawyers, no matter what practice area they go into, would be able to know. I think it’s a great program. Hopefully it’s something that other states will start to follow. Utah, of course, very innovative just as a jurisdiction. We talk about this all the time, whether it’s tech or bar stuff. They were the first during COVID, they were the first jurisdiction to open up their doors to maybe we should have some kind of a diploma privilege solution here because of the lockdowns. So always forward thinking, really interesting

Chris Williams:

Idea. I tell you, the one state that needs to be paying attention, California, because their experiments with theBar have been less than stellar. And one of the things that came about from looking at how Utah, it’s been handling it after COVID, there has been no real challenge and no real even challenge or gap in the quality of lawyers that haven’t been licensed through theBar compared to people that just had advanced diploma privilege or whatever they called it.

Joe Patrice:

The example of Wisconsin is always telling Wisconsin is diploma privilege. That is where the NCBE who writes theBar exam is headquartered weirdly enough in the one state that doesn’t use it. The Wisconsin example, we have data, so that’s been going on for years. We know that the quality of attorneys coming out based on disciplinary and disciplinary proceedings against them, so on and so forth, there’s no difference. The public is not better protected by theBar exam existing, so it’s really useful. And California, they got a lot of flack. Their rollout was too quick. It was done because they had dug themselves into a hole for years and didn’t realize it didn’t act fast enough to get out of it. But I am still a big supporter of their decision to try and write a different bar exam. I think they failed at doing it, but I don’t want to, I feel like their failure has been hijacked by forces who want to say, see, this is why you should all just take theBar exam. And I’m like, well, no, let’s not do that. I think Utah, it sounds like, we’ll see how this implements, but this seems like a step in the right direction.

Chris Williams:

Yeah.

Joe Patrice:

All right. Well, let’s talk about some big law stuff. We learned this week that CAD Waller, the oldest law firm, is getting itself a co-manager. This was the biggest story of the week for us last week as it turns out, which you wouldn’t think that internal C-suite shuffling within law firms would be a huge, huge story, but I think it really speaks to how there’s a lot going on under the surface given these firms.

Chris Williams:

What was your initial reaction to finding out about this as a person who’s caught up on the industry and knows the inside baseball of it?

Joe Patrice:

I wouldn’t necessarily go that far, but I will say

Chris Williams:

Compared to the average person, the average person has been covering that shit for over a decade. So

Joe Patrice:

That’s fair. That’s fair. Well, I thought it was interesting. So Ken Waller has always existed in this. Part of the reason that they’re so old is that they are slow and steady. They’re never the most elite firm in the list, but they’re always in the upper tier, always a very respectable, big law firm that just stays the Course. This picking up a new manager obviously comes with the questions, why are we doing this? We see the story they’re telling is, oh, we work together and whatever, but they’ve lost something like 40 partners over the last few months that is not good For A firm. And a lot of this is also tied to the capitulation. This is one of the firms that signed a Trump. It was a weird one to sign a Trump deal. I always thought too, because Trump targeted firms at the, either where there was a very personal grudge, someone associated with the firm had done something that had made him mad, or they were the biggest firms. Caala really didn’t fit that mold in either way. So it was a little weird that they were dragged into this. I thought,

Chris Williams:

Were they dragged into it or did they stick their neck out? I remember there was one firm where they like,

Joe Patrice:

Well, good point. That’s an excellent point.

Chris Williams:

Does it have an answer?

Joe Patrice:

Yeah. Oh no. Oh, no. I was just like rooting you on that point that I thought you were going to get going. Yeah. So obviously Paul Weiss is the one who they already had put out an executive order and they put out these executive orders for the firms that fought back too. But most of the firms who capitulated preemptively made their deals without having a order on the books. But it seems as though they were being called and hassled by the administration to make a deal. So you’re right. This is one where it’s not like they were needed to do this. But yeah, it seems like that sparked a lot of the departures, probably, whether it was just for political reasons or reputation being harmed by being part of the deal, or just a sign that it seemed as though, and that’s the other thing, if I’m a partner, even if I’m not very politically concerned about it, a firm that voluntarily goes down this road, Paul Weiss’s argument was

Chris Williams:

We got tapped on our shoulders.

Joe Patrice:

Yeah. Well, the executive order as structured would’ve made it impossible for us to keep doing business, yada, yada, yada. Okay, well, maybe, but from a cadwell perspective, you have to say, so is this signaling that you think we would not be able to do business if we were hit with something like that? Does that signal deeper problems for us? But yeah, people are picking up and leaving, and that is a reason to look for new management. Now, the speculation is that this is a precursor to some sort of a merger or tie up. They’re officially denying it, obviously saying they’re not currently engaged in anything, but it does raise that specter whenever you start changing around your management. Now, who would that be? I don’t know. It’s hard to speculate what they would be. You would think somebody maybe kind of following the a and o Sherman model, like a tie up with somebody overseas might be an option. But I don’t know. It’s an interesting point.

Chris Williams:

I’ll tell you one thing though. If they merge with either a bigger firm or a firm whose name has priority, it’ll probably be easier to say.

Joe Patrice:

Yeah. I mean, it would be wild to lose that time honored name, but

Chris Williams:

Their white shoe.

Joe Patrice:

Yeah, I mean, yeah. Yeah. I mean, not after Labor Day, obviously. Yeah.

Chris Williams:

I mean, there have to be some standards kept.

Joe Patrice:

Yeah. All right. Well, as we previewed off the top, it is the first Monday of October, so we’re going down the rabbit hole of the merits docket again for another year. So it may seem like the Supreme Court hasn’t been out of session because they’ve continued issuing shadow docket opinions all the time, but they have been until now and they’re back doing their thing. We had a bunch of stories kind of over the week of the shenanigans they’ve been getting up to, I mean, I guess the biggest one being speaking of shadow Docketing, the biggest one being their move to take on these, in particular, this Federal Reserve firing the Lisa Cook firing, purported firing. Anyway, where the administration has said, we are going to fire a Federal Reserve governor. That case has now percolated, and they will hear argument on that. This is obviously something that they were hoping not to deal with.

They have been utilizing the shadow docket to rubber stamp all of these firings, which are largely, I mean, they’re statutorily illegal, but they’ve been arguing that presidents can do whatever they want. Now. They attempted to avoid the Federal Reserve problem by putting some dicta into a previous opinion saying, well, obviously this doesn’t apply to the Federal Reserve. The administration did not take that invitation to leave it, leave well enough alone and has attempted to fire a governor. Now, the Supreme Court is allowing her to keep her job while the case is pending, which has confused the dissenters because the posture is zero different than all the people that they’ve said Trump can fire in the interim while their cases are pending. But I really viewed this as, and what we wrote about was this is something of the shadow dockets confronting reality. They had been hoping to keep all of this stuff under wraps to keep all of this happening with no briefing and no explanation, and their hand got forced.

But I think a lot of it is that they wanted to keep it there. Obviously, people have questioned why do they want to do all this in the shadow docket? They have enough votes. What do they care? They could handle this the real way, and there’s been a lot of the lack of integrity, and they’re trying to do this fast, and I don’t discount either of those. But I also think that a lot of the logic was that by doing it on the shadow docket where it’s really temporary or basically glorified injunctions, they can get the effect that they want to give the administration of basically firing people for and hold it, tying it up for years on end without actually overturning something like Humphrey’s executor. So they can then turn around when the next Democrat comes in and attempts to fire all of the people heading all these agencies, they can say, whoa, whoa, whoa. I mean, we never overruled that decision. That’s a difference. I think from what some of the people analysts are saying. A lot of analysts are like, well, Humphrey’s executor, the writings on the wall. They clearly are hostile towards it, and I don’t think they really are. I think they’re hostile towards, they’re hostile towards it when it impedes Trump, I think they would love to keep it in place in any other circumstance.

Chris Williams:

It’s always nice to see one of those powerless to hurt him, but we can’t help him sort of things.

Joe Patrice:

Yeah, sword and shield thinking.

Chris Williams:

The thing about it that’s most interesting to me is that the lower courts, it feels weird to call ’em lower courts, but I think that is the nomenclature,

Joe Patrice:

Of course, that

Chris Williams:

Are being hit with the expectation to treat the shadow docket outcomes as precedent. But my thing is, and to your point earlier, why don’t they just go through the process of writing out the opinions, even when they write out the opinions, it can still be difficult to figure out what exactly they want. I mean, if you remember when they overturned Chevron, it was like, what do we do now? He was like, we’re overturning, but not really, because if you squint the right way, I just wish we were in a position where there wasn’t a circumstance where a lower court will be screwed. Because even when they’re written all the way out, they’re still either vague or still the expectation that they’ll give a ruling and then it’ll interact with the Trump administration in such a way that, well, actually, we need to clarify. Now, I remember, this may be a little bit of a stretch, but is my mind. It makes sense. I remember when Bruin first dropped court were like, okay, tanks are guns now, and you have a private right to them. And then they were like those following up clarifications on Bruin, what have you, but they were written from the position of, well, of course that’s not what we meant, blah, blah, blah. But it wasn’t clear. It wasn’t clear when the opinion was given.

Joe Patrice:

That’s true. There are written ones that don’t make a lot of sense. That defying point really is brutal because the purpose of those opinion, those emergency petitions is to say, we’re going to hold this until it percolates through the system.

It is not a final answer, but given that it’s not a final answer, and that’s not the standards for it, that justices in particular Gorsuch are saying Other lower courts should act on what we’ve said even though we didn’t explain ourselves, and it is explicitly a temporary order that should be limited to within the four squares of the caption is really dangerous, and it is an indicative of how they want to create vibe precedent and hold the lower courts to it. I view it as something of a form of under ruling. They wanted to create the conditions where these lower courts would take steps to get rid of Humphrey’s executor on their own without saying anything themselves, so they could reimpose it later.

Chris Williams:

Was that a jism, by the way? I noticed under ruling in the article, I was like, oh, that was clever.

Joe Patrice:

No, it usually refers to a slightly different thing, but yeah, no, it is. It’s a thing.

Chris Williams:

Okay.

Joe Patrice:

I’m reapplying it here, but it is a thing generally,

Chris Williams:

Well, less cool points, but still acknowledged.

Joe Patrice:

Yeah, fair enough. We also had, because we’re coming to the end of their vacation or we came to the end of their vacation, we had justices doing their, we’ve had the a CB booked and Sotomeyer book tours that we’ve talked a lot about. Justice Thomas gave himself a speech as well. Two big stories coming out of the event he went to at Catholic University law. He said that he expressed that precedent and stare decisis are shrug emoji in his eyes. Apparently the grand defender of the Anglo-American judicial system believes the Anglo-American judicial system of common law doesn’t matter to him.

Chris Williams:

One thing I will say about that, I do feel, at least in the context of Thomas’ Jurisprudence specifically, I feel like that sounds like a Thomas system. I remember one time I was in law school, there was this dissenting opinion he had where he was basically saying that we need to overrule the slaughterhouse cases because factoring in what that did for how we interpret, I think it was the due process aspect of the 14th amendment just muck the whole shit up. So in complete fairness to Thomas, and yes, I threw up in my mouth saying that I do feel like he’s been on the type of choice that was like, if we don’t like these opinions, we can get rid of them. I didn’t really consider it to be news, but I

Joe Patrice:

Guess if

Chris Williams:

Achi Brown Jackson said that, that’d be way more interesting.

Joe Patrice:

Well,

Chris Williams:

But I’ve seen Thomas’s postures over time.

Joe Patrice:

Well, no, that brings us to, that is a good point. I think we all very much believe that they don’t care in the real world, that they were overturning precedent with zero compunction already. But is there some psychological or notable issue with them saying it out loud? Is that a thing that is new? Whereas they in the past have tried to dance around it? Is this now signaling a newfound excitement for tossing decades worth of precedent?

Chris Williams:

I think that this may be a redirection, maybe an answer to your question at this point. I can’t tell sure. But I think what it is, I think it’s a Breaking K fb, the thing that WWE wrestlers, they have to put on the act, even if they get injured in the moment, their first thought is what would Triple H do?

Because what was it? I think in the Dobbs decision where they were, was it Alito? He was citing something back to the 1600. It’s like part of his justification. So there is an artifice of being interested in the history or this notion that the history is what’s actually making the decisions, and that the justices are no more than conduits of the thinking thus far. But to say fuck star decisis on some level is to disrespect that notion. It’s like you have to go back to 1600. Why are you playing the game if you’re going to later say, eh, it’s a game. I’d rather the commitment, and that’s one of the things, and this is an aside, that’s one of the things I appreciate about the judges, and you’re wearing the white wigs. I know it’s goofy. They have to know it’s goofy, but you can clearly see the traditions in play.

Joe Patrice:

So the other aspect of this Thomas speech that came out was he, years ago, he was teaching a course at George Washington, and he ultimately bailed on that course mid class, and it was immediately after Dobbs. We all kind of made fun of it at the time as though it was because he was kind of snowflake out, and it seems as though he was, what he explained at in this event was that after Dobbs, he just couldn’t keep teaching that class because of unpleasantness on campus, which seems to be that students, a bunch of two Ls and three Ls looked at him. Why are you so stupid? And that was too much for him.

Chris Williams:

I wonder, I don’t know if he was teaching at the time, so trying to mentally do the math, but I just imagine him teaching and his students asking him about John Oliver. John Oliver. There we go. When John Oliver offered him a million dollars in a big rv, he was like, I think he said a million dollars every year in an rv. If he stepped down, I would’ve loved to have been in his classroom and ask him about that. Hey, did you see the TV last week?

Joe Patrice:

Yeah. It really drove home to me, and I kind of refer to it as the,

Chris Williams:

Well, the thing about driving home is if you have an rv, no,

Joe Patrice:

You’d be home by now.

Yeah. It really kind of drives home something of the cowardice of their convictions, who doesn’t spend their whole time worried about what a bunch of students think about them. The people who wrote the Landmark Supreme Court opinions of Old, they never had those worries because they were right. And even I mentioned this in the article, but in a very cynical way, the chief justice cited some of the civil rights era judges and the terroristic threats that they had to deal with. Now, when he wrote about that in this year’s annual report, he compared having crosses burned on their lawns to law bloggers making fun of them. Not really the same thing, but I wouldn’t think. But it does also speak to how there were people and judges in this country’s history who made unpopular but morally right decisions and were willing to stand by them. Meanwhile, this dude gets rid of 50 years of basic civil rights for women and goes, well, now I can’t teach my class. People might be mean to me.

Chris Williams:

Speaking of law burnings, I didn’t mention this over this because small talk, it felt too substantial to mention then, but there’s a judge who blocked a Trump administration request. She was hospitalized after her house was burned, and this is,

Joe Patrice:

I believe she wasn’t there. I think her family was all hospitalized though because her family was at home.

Chris Williams:

Okay, well, that can be looked up later. I’m not sure yet. I think it was, this was right after, I want to say, was it Steven Miller was saying that judges were being terrorists for not going along with, so this disorder, stochastic violence that is actually happening opposed to like, oh, no, they said a mean word when I was at Ruth Chris,

Joe Patrice:

Yeah, judges. Yeah, no, she had already been receiving death threats. She had put a temporary block on the administration’s attempt to get access to South Carolina’s voting roles because the administration is attempting to seize voting records from bunches of states, and she’d put a temporary block on that. And then yes, now the house has burned down, which we don’t necessarily know as though those two things are connected, but obviously deeply concerning that they might well be.

Chris Williams:

It is just in the strange, suspicious, odd phase of connection,

Joe Patrice:

And as far as violence against right-wing judges, which is very few and far between compared to the death threats that are happening to judges, and indeed many of these judges are right wing. They just also respect that the law says Trump is wrong, but more are happening on that front. But it is worth noting that we got a sentence in the would be Kavanaugh assassination, which was not to say it was in Coate, is really stretching the word in ko. They were picked up a long way from his house, but were theoretically planning to try to kill Kavanaugh. That ended with an eight year prison sentence driven largely by the fact that the attempted assassin confessed showed total remorse seems to have zero risk of recidivism, but Republicans are melting down that it’s a mere eight years in prison as though eight years in prison isn’t a really long time to be in prison.

Chris Williams:

Hell of an internship

Joe Patrice:

For a crime that didn’t happen and seemed like it was a little bit, seemed like it was a half-baked plan. Anyway, not to diminish it, I mean, clearly that is something that requires prison time, but eight years seems like quite a good amount of prison time for somebody who’s actually not a recurring threat to the public, but they’re melting down. Meanwhile, we have more houses being attacked and judges receiving threats all over the country. Well, on that note, yeah, on that unhappy note, thanks everybody for listening. You should subscribe to show leave reviews, all of that. You should be checking out the Jabot Kathryn’s other program. I’m a guest on the Legal Tech Week Journalist Roundtable Most weeks, probably not this week since we’re all going to be at a conference, you should be reading Above the Law, so you read these and other stories. Before we get to them, follow us on social media. I’m at Joe Patrice. Chris is at Writes for Rent. The publication is again above law.com and that is it. Peace.

Continue Reading