Welcome back to Ahead of the Curve. I'm Karen Sloan, legal education editor at Law.com, and I'll be your host for this weekly look at innovation and notable developments in legal education.

This week, I'm checking in on the diploma privilege movement and zeroing on why is hasn't gained more traction with state attorney licensing bodies. The fight isn't over yet, but for now it appears that courts are more comfortable with the idea of an online bar exam than eschewing the test altogether. Next, I'm chatting with Penn State professor Tom Sharbaugh about his idea that law faculty set aside their scholarship during the fall semester and concentrate fully on their teaching as a way to mitigate some of the challenges posed to students by COVID-19 and remote learning.

Please share your thoughts and feedback with me at [email protected] or on Twitter: @KarenSloanNLJ

   

Diploma Privilege Stalls, Again

It seemed back in June that the diploma privilege movement was mounting a comeback. Law graduates organized early on in the pandemic to lobby attorney licensing entities to allow them to skip the bar exam this cycle, but saw little success outside of Utah. But the push gained steam again on June 12 when Washington adopted a diploma privilege, followed two weeks later by Oregon. I even wrote a story at the time noting the changing tide, which was helped by a national surge in COVID-19 cases. Diploma privilege advocates renewed their efforts and put on the full-court press. I have to say that I've been impressed with their organization, their tenacity, and their passion as they repeatedly make the case that a diploma privilege is the most humane way to treat law graduates who have already pummeled by the pandemic and the dumpster fire that 2020 has turned out to be. Even law deans and professors finally came around and endorsed diploma privilege, in many cases.

Yet here we are month later with the first bar exams slated to begin tomorrow, and I can count on one hand the number of jurisdictions that have adopted an emergency diploma privilege. (The only other state to get on board since June is Louisiana.) In recent weeks nearly every large bar exam jurisdiction has expressly rejected petitions and calls for a diploma privilege, saying that the bar exam serves as a key protection for the public—an argument the National Conference of Bar Examiners has proffered for years. New York, California, Illinois and Georgia are just a few of the states that have recently rejected call for a diploma privilege. And each instead has decided to offer an abbreviated online bar exam on Oct. 5 and 6.

Here's what I think is really going on: The increasing acceptance of an online bar exam—which many courts and bar examiners were extremely skeptical of or even outright said wouldn't work mere months ago—has undermined the diploma privilege movement. Licensing entities in many states, particularly large ones, recognized that an in-person exam isn't feasible or safe even in September. But they weren't ready to fully abandon a test that sacrosanct in the profession. So they went with a middle ground, which is the online exam. Candidates won't have to shuttle to testing sites and spend two days huddled together in convention centers and hotel ballrooms. And that's a good thing. But they also won't take a test quite a rigorous as the one they normally would, and there are many fair critiques about the feasibility and equity of these online bar exams. (Plus states will be responsible for scoring and scaling exams themselves, which is typically handled by the National Conference of Bar Examiners.)

If you want to know how many candidates feel about this compromise solution, read this excellent op-ed by Shandyn Pierce, and recent graduate of the University of California Hastings College of the Law. He and other diploma privilege advocates have pointed to the disaster that that was American Board of Surgery's qualifying exam—a two-day test that was moved online in response to the COVID-19 pandemic. The test, given last week to about 1,000 medical residents, was canceled halfway through when the online exam technology failed. And in states like California and New York, there will be far more people taking the bar exam, which will likely stress testing systems even further.

We should know a bit more later this week in terms of how online bar exams are going off. Nevada, Indiana, and Michigan are giving their own online, and we've already seen Nevada and Indiana postpone due to technical problems. And while none of those jurisdictions test particularly high numbers of graduates, it will give us some idea of whether this is possible without a technological meltdown. One point made to me last week by the law graduate who maintains the @BarExamTracker Twitter account is that if these July/August online bar exams are epic failures, then licensing entities might suddenly become more amendable to diploma privilege. No one wants the embarrassment and logistical nightmare of having their exam fall apart, leaving candidates high and dry. And I should note that the fight for diploma privilege isn't over. Candidates are continuing to push for its adoption despite these repeated setbacks.

I wish I had a crystal ball to know how all of this will play out. I obviously don't, but I do know there are few winners in this scenario beyond the lucky few who can take advantage of an emergency diploma privilege: Not the graduates who tomorrow will take in-person exams in 23 states, not the candidates who will have to wait another two months-plus to take an unproved. And not the courts and bar examiners who find themselves pulled in different directions by increasingly desperate law graduates and a profession that wants to protect the status quo.

 

Should Faculty Ditch Scholarship Next Semester?

Here's something I've never heard before in my decade or so of covering legal education: A law professor arguing that teaching loads should be higher. So when I caught wind that a professor from Pennsylvania State University Law School was making the case that law faculty ought to put aside their scholarship next semester in order to concentrate fully on teaching, I had to hear more. I hopped on the phone with Tom Sharbaugh, the director of the school's Entrepreneur Assistance Clinic, last week to get the pitch.

But first, some caveats: Sharbaugh isn't your typical tenured law professor. He's a "professor of practice" who spent 35 years in the law firm world. For 15 of those years, he was the managing partner of operations at Morgan, Lewis & Bockius. So he didn't come up through the traditional academic ranks, and he doesn't write scholarly articles. He admitted to me right off the bat that his proposal would likely never be put forth or embraced by traditional law faculty, who view scholarship as integral their work. But Sharbaugh told me that his thinking on this issue was inspired by his experience as a board member for the University of Pennsylvania medical system, which operates multiple hospitals.

"I saw during the COVID-19 situation, it was like all hands on deck. If you were an oncologist, you had to be available. If you were pediatrician, you had to be available. It wasn't just like: 'Hey emergency room physicians, good luck.'"

Law schools aren't exactly ERs overrun with COVID-19 patients, but Sharbaugh said the larger principle applies in that law schools are facing unprecedented challenges in the fall semester with most if not all classes happening online. Instead of teaching just one or two courses during the fall while working on their scholarship, he said law professors should put their scholarly endeavors aside temporarily and take on more teaching responsibilities so that law students have more classes to choose from and can learn in smaller sections. Teaching to smaller classes could make some of the obstacles posed by remote learning easier to overcome, he noted.

But I wanted to know how law journals across the country would fill their editions if all law professors simply took the semester off and didn't produce new work. Sharbaugh answered with a quip that has a little ring of truth to it.

"You could probably reprint the stuff that was published 10 years ago and nobody would notice."

Ouch.

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I'll be back next week with more news and updates on the future of legal education. Until then, keep in touch at [email protected]