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Thursday, September 07, 2017
Cal Bar's Nadir
This lack of leadership on the part of the California state bar is astonishing.
No joy in Mudville, as the mighty California bar has just struck out.
Posted by Dan Rodriguez on September 7, 2017 at 06:09 PM | Permalink
Comments
To J,
The bar exam contains no question asking the candidate's race or sex. Thus, the bar exam is not "just weeding out women and minorities," as you posit. And, the only questions on the bar exam arguably testing a candidate's definition of "qualified" are questions testing ethics; the right answers to those questions are neither "white" nor "men." Thus, the bar exam does not establish the definition of "qualified" as "white men," as you also posit.
You need to identify a feature of the bar exam that indicates that it is "not doing it's job" in protecting the public from unqualified lawyers and then plausibly relate that feature to racial or sexual disparities in passage rates. You have not done so.
Neither has the California Bar.
As it happens, the bar exam is a test of the skill and knowledge necessary to the qualified practice of law. As such, its rates of passage among women and racial minorities is as irrelevant as its rates of passage between the tall and the short, unless being a woman or a racial minority is itself any more relevant than being tall or short is to the qualified practice of law, and it is not.
To Steve,
The justification for testing many subjects on the bar exam is twofold: first, to test the candidate's ability to assimilate and organize large bodies of information, which is necessary to the qualified practice of law; second, to test the candidate's ability to recognize and apply common legal argument forms (as indicated by a candidate's ability quickly to learn unfamiliar legal rules or predict the holdings in unfamiliar legal hypotheticals), which is exceedingly helpful to the qualified practice of law.
Your implicit premise that as groups, women and racial minorities are of lesser intellect ever to pass the current bar exam at substantially the same rates as white men is racist and sexist because it lacks conclusive evidence and because it is a substantially prejudicial stereotype to individual women and racial minorities. Men should not suffer under the prejudgment of their very intellect because of the color of their skin or the nature of their genitals.
In fact, your implicit premise is racist and sexist in the most repugnant sense. The premise is identical to the rationalization for slavery, segregation, and the disenfranchisement of women. That rationalization fails as a justification, even in service of a different prescription. It is demeaning and dehumanizing.
Even if your premise is true, your conclusion—that relaxing the passing standards of the bar exam will make our profession more diverse—ironically fails to follow. More white men would just pass the bar exam too.
Sincerely,
All the Biffs out there in the legal profession who are doing their best to keep their mouths shut.
P.S., I would note that swamping out any disparities in race or sex in the legal profession is disparity in age, magnified several fold when associated with disparity in wealth. So, if you really think that disparities are itself evidence of oppression and you want to help out women and racial minorities, if you're old, just move your chair down the table or your name down the brief.
But, I guess your client wants you to do the work because you're more qualified.
Posted by: BiffyTheYounger | Sep 11, 2017 2:19:32 AM
The California state bar has taken an important step towards long needed reform in the face of the major demographical shift in the state towards greater diversity. The bar (still overwhelmingly white and male) must be more inclusive and sensitive to these changes. The next step is to reduce the number of tested subjects to break the "teaching to the test" culture that stymies curriculum reform in law schools.
Posted by: Steve Diamond | Sep 9, 2017 3:48:26 PM
"What a lovely way to derail a conversation, NRA."
The point is, if a black person has a right to become a lawyer (or vote) without taking a test, then they have a right to carry a concealed firearm in public without taking a test. If becoming a lawyer (or voting) is a right, then keeping and bearing arms is a right also.
Posted by: Breit Bart and Lisa | Sep 8, 2017 1:06:28 PM
"What a lovely way to derail a conversation, NRA."
The point is, if a black person has a right to become a lawyer (or vote) without taking a test, then they have a right to carry a concealed firearm in public without taking a test. If becoming a lawyer (or voting) is a right, then keeping and bearing arms is a right also.
Posted by: Breit Bart and Lisa | Sep 8, 2017 1:06:26 PM
"What a lovely way to derail a conversation, NRA."
You're saying that if 13% of people are black, but less than 13% of lawyers are blacks, the test to become a lawyer is racist because it has a disparate-impact. I'm saying that if 13% of people are black, but less than 13% of gun-owners are black, the test to get a license to own a gun must be racist because it has a disparate-impact on blacks.
Posted by: GOA | Sep 8, 2017 12:47:06 PM
"What a lovely way to derail a conversation, NRA."
You're saying that if a test to become a lawyer has a disparate-impact on blacks, it should be thrown out. I agree, only if a test to own a gun must also be thrown out if it has a disparate-impact on blacks. That is, a test should be thrown out if it has a a disparate-impact on blacks only if ALL tests should be thrown out that have disparate-impacts on blacks.
You're claiming that only tests you don't like should be thrown out, so i'm calling you a hypocrite.
Posted by: NRA | Sep 8, 2017 12:42:21 PM
What a lovely way to derail a conversation, NRA.
I try not to engage with such obvious trolling, but I will point out that your logic is nonsensical - there are not just as many *white* gun-owners as there are whites, so to say that there should be as many black gun-owners as there are blacks is to say that gun control laws should disproportionately *benefit* blacks. I'm surprised considering most people of your political persuasion don't agree with affirmative action.
Posted by: J | Sep 8, 2017 2:20:38 AM
Biff - because if the reason for the bar exam is to protect the public from unqualified lawyers, but it's actually just weeding out women and minorities, then it isn't doing its job correctly. We can't define "qualified" as being "white men."
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Same with gun-control laws. If gun-control laws have a disparate impact on blacks and women, they have to be thrown out. There should be just as many black gun-owners as there are blacks.
Posted by: NRA | Sep 8, 2017 12:49:17 AM
Biff - because if the reason for the bar exam is to protect the public from unqualified lawyers, but it's actually just weeding out women and minorities, then it isn't doing its job correctly. We can't define "qualified" as being "white men."
Posted by: J | Sep 7, 2017 10:47:57 PM
I think that once you embark down the path of tinkering with the rules of an exam that that has already been given dysfunction is the foreseeable result. The Committee of Bar Examiners had a clear, nearly unanimous recommendation. When the decision went up to the Board of Trustees--the California Bar's epistemological equivalent of "Survey Says"--the predictable end product was chaos.
Posted by: Rob Anderson | Sep 7, 2017 9:47:16 PM
Am I correct that the only legitimate reason to have a bar exam is to protect the public from unqualified lawyers? If so, what is the excuse for the focus on the passage rates of men/women or Hispanic/black applicants?
Posted by: biff | Sep 7, 2017 9:10:48 PM
https://en.wikipedia.org/wiki/The_Mighty_Casey
According to The Twilight Zone: Unlocking the Door to a Television Classic by Martin Grams, the entire production was originally filmed with Paul Douglas in the manager role. (Douglas previously played a baseball team manager in the 1951 film, Angels in the Outfield.) On Friday, September 11, 1959, the day after the episode finished shooting, Douglas died.
Posted by: Paul Douglas | Sep 7, 2017 7:40:23 PM
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