New Law Graduates' Needs, New Client Service Needs, and the Bar Exam: Three Problems That Needn't Have One Solution

I admired Dan's post below on "the high costs of bar federalism." Although I can certainly appreciate his point, having experienced the issue first-hand as a youngster with a Canadian law degree and American LL.M. when I sought to enter practice and got tangled up in such rules, I take no strong view on the issue. What I admire, in addition to his passion and compassion and the years he has spent on issues like this, is that Dan addresses one issue, more or less, at a time.

I posted earlier on recent writing addressing emergency efforts to address the bar exam and licenses to practice at this moment. My basic point, made at some length, was that "we should separate the question of the emergency need for legal services in this crisis from our understanding that the same crisis may cause suffering and economic uncertainty for new law school graduates." Since then, there has been a good deal more advocacy on these issues and more action from state bars. I doubt that I have kept on top of it all as thoroughly as Dan. (One reason is that much of the discussion has taken place on Twitter, and I try to maintain a healthy ignorance of what goes on there.) One source I have found useful in its discussion of these issues is Derek Muller's blog, Excess of Democracy. Derek has also been writing about these issues for some time. Also worth noting is this blog post by the group of professors who wrote an earlier draft paper examining several options for addressing new law graduates' current needs and the imminent legal service needs of clients, a paper I discussed in my earlier posts.

In a post on his blog, Derek laments that some discussions and arguments about this issue "have spiraled away from the emergency-oriented concerns into more broad-based (and, in some ways, timeless) critiques of the bar exam generally." To that, I would add what I noted in my earlier post: that some proposed solutions to the concerns of imminent law school graduates have been combined, not especially clearly or entirely persuasively, with arguments that we are facing a sudden need for client representation for a host of new and vulnerable clients dealing. So we really have three issues that are being addressed at the same time, and that are often combined (and sometimes jumbled together): 1) What to do about current law graduates given delays or other problems with the bar exam? 2) What to do about clients who require legal services that are related to the current crisis, or whose access to legal services is being affected by the current crisis? 3) What to do about the bar exam generally? 

There are excellent strategic reasons to combine all three issues. They are in the spirit of never wanting to waste a crisis, or at least in the spirit of making the argument that is most affective, most persuasive, and likeliest to silence doubt or questions and encourage a bandwagon effect. The problem with combining them is the potential loss of the soundest, clearest thinking and the wisest short- and long-term solutions. For those who are deeply concerned by the needs of law graduates or clients, or who have long been advocating changes and see a sudden road opening up that will give their arguments traction and light a fire under the feet of institutions accustomed to delay, that may seem like a trivial cost. But it does not necessarily lead to the best solution for each individual problem--only the fastest one. And in the longer run, if it turns out that the assumptions about problem A that are used to argue for a solution to problem B are unsound, it may undermine trust in either the solution or the expertise and authority of those who argued for it. That is not a great problem in itself, both because experts are rarely punished for being wrong and because if these particular experts are discredited, others will come along. The greater problem is that it will undermine trust in expertise and authority even when they are merited and properly wielded, and despite the societal value of having trust in expert knowledge and institutions.

I try to separate the three questions in what follows. I apologize for the incompleteness and crudeness of my thoughts but not the length of the post. If a crisis in legal services affecting millions of vulnerable people (at least if one accepts that premise), a fairly radical nationwide change in current licensing rules, and a possible long-term change to legal licensing and legal education--because a change in legal licensing necessarily requires immense changes in our current mode of legal education--are not worth a few extra paragraphs on a blog that often discusses legal education, I'm not sure what is. (I do apologize for any repetitions or undue paragraph length. "If I had more time, I would have written a shorter letter," and so on.) 

I. 

Of the three issues, the most important, I should think, is the question of addressing legal needs. If the co-authors of the blog post are right, the concern here is that "[l]ow- and middle-income people" who "already lack adequate access to legal services" will "urgently need lawyers" to address a range of "life or death issues." I can understand law schools worrying greatly about their students, and also focusing on the things they may know more about and be in a position to address. But on any reasonable moral calculus, and especially given that law schools are a branch of the legal profession and that the profession exists to provide legal services, I should think that this is clearly the main concern. Whether the particular arguments made to support the proposition that there is a looming crisis in legal representation are convincing is a separate matter. A citation to a Newsweek article noting the inevitable development of a COVID-19-related class action market, for instance, is unconvincing: there is already a substantial class action bar, it obviously is not having difficulty filing those actions, the merits of those actions remain to be adjudged and will surely be dubious in some instances, and class action lawsuits and settlements work themselves out over a much longer time frame. (The authors may mean that there is a desperate need for class action defense lawyers in those suits, of course. I can't speak to the data here. But it does not seem related to the needs of low- and middle-income people, except insofar as those suits contribute to increased unemployment.) But I certainly find it plausible that there is an urgent need for legal services in other areas.

As I argued earlier, addressing that issue requires addressing that issue. It may, or may not, have anything to do with the needs of new graduates. Arguments that "we need a secure pipeline of attorneys to fill" the kinds of positions in which lawyers provide services to those in need "now and in coming years" may be true. But once one starts talking about "coming years," one turns one's attention away from current crises, away from current clients, and even away from the question of whether changes are needed so that new graduates can practice law in June or July of this year (which, again, is not the specific issue of a crisis in client representation, but a separate issue).

If we want to solve this issue, we need to ask a series of basic questions involving both clients and lawyers. Where is the need greatest? In those places, what is the state of lawyer availability? In the relevant subject areas, given the necessity of practicing from a distance, what is the state of lawyer availability nationwide? More generally, we cannot assume that because there were not enough lawyers providing representation to clients in need in April of 2019 (if that is indeed correct), the same holds true in April of 2020. We would want to ask: How many existing, licensed, experienced lawyers are not currently busy with legal work? It is surely the case that many experienced lawyers are currently facing a slowdown in legal work. How many of those lawyers who are not already taking on low- and middle-income individuals (and, I should think, small businesses) in urgent need of legal services, on a pro bono basis or otherwise--and I assume many already are doing such work--would be willing to take on some of that work? What could state bars do to encourage or even require such work by already-licensed and experienced attorneys, whether through existing pro bono networks and requirements or through new requirements, possibly draconian but no more unusual than some of the other actions that have been proposed? In doing so, how could the bars ensure that these lawyers' services are directed to the places and issues of greatest need? What could they do to relax reciprocity rules so that, for instance, an under-employed lawyer in Montana with experience in handling Social Security claims could take on those issues for clients in New York? Surely, if we take client needs as the most important thing and if we believe these individuals face a crisis, we should start by trying to give them a pipeline to lawyers who are already experienced at practicing law and thus most likely to be of the greatest help. We certainly should not assume that we need to turn in the first resort to green lawyers, and certainly not because of assumptions based on the pre-COVID-19 legal profession.

It is more than possible that new law graduates might still be needed to supplement the best possible lawyers for these desperate clients. (In which case, it would make the most sense to relax bar admission rules on the condition that the new graduates do only the kind of work that falls within the category of urgently-needed legal work for low- and middle-income clients.) But to solve the problem of client needs, we should be asking first and only what is best for those clients. I should think that would involve first trying to connect them to lawyers with the most experience--or any experience--in practicing law. That may or may not be of help to current law graduates and may or may not have anything to do with the bar exam. But those, I repeat, are separate questions. 

II.

The second--and separate, if potentially related--question is how to address the needs of current law graduates. If my previous post seemed less sympathetic on this point, despite a number of statements making clear that I do care about that issue, it was because my focus--in keeping with the focus of the authors of the paper I was commenting on--was on client needs. But of course I do care about my students and about law students generally.

It is still the case, however, that caring about them does not mean advocating that they immediately be admitted to practice. That measure is justified only if it will not harm clients. Current graduates face two concerns: They face serious financial needs, and they greatly desire to begin practicing law. The two concerns are not the same, and fulfilling their desires is less urgent than addressing their urgent financial needs. There are a number of things the institutions with the closest relationship to graduating law students could do to address the first need. Law schools fully refunding their spring semester tuitions, for instance, would be a considerable financial aid that would not require any changes in current practice rules. So would law schools forgiving all debt related to this semester. Reducing or zeroing out faculty pay for several months would be a drop in the bucket, but it wouldn't hurt. (Of course it would hurt faculty. But that's less important. And it is in some tension with the routine claim, which I admittedly find extremely dubious, that law faculty can always easily find high-paid work in legal practice.) Law firms could play a potential role, too. Large or medium-sized law firms that have already hired some of these students could take a financial hit and agree to hire and pay them until they are able to take the bar exam, even if they cannot currently engage in some forms of work. They would still be able to do other forms of legal work, of course, so it would hardly be the equivalent of a no-show job or a total loss for the firms. And to the extent that the focus of various arguments right now is on the desperate need for legal services for low- and middle-income people, those law firms should be sacrificing some present profit to do that kind of work pro bono anyway, and these graduates could still perform some kinds of work that would help the existing lawyers at those firms in their contribution to that effort.

In short, and leaving aside other forms of financial relief from state or federal governments for which these individuals might be eligible on the same basis as anyone else (which seem to have been greatly neglected in discussion so far), there are many ways to address the question of financial need for new law graduates that do not necessarily involve any changes in legal practice rules or any risks to clients. They merely require great sacrifices from institutions, including law schools and law firms, that have at least some resources. (Enormous resources, in some cases.) In some ways, some of these steps would be better for new graduates, albeit more painful for law schools and other institutions, because not every graduate will have a paying job waiting, and simply having a license to practice law is hardly the same as a guarantee that one will actually earn a living any time soon.  

It now appears that the trend in addressing the current needs of law students faced with the apparent impossibility of taking the bar exam (assuming it is impossible) is one of supervised practice. Although I raised questions about some of the different options discussed in the co-authored article I commented on in my last post, I was pretty clear that I like the idea of supervised practice--that, indeed, my own licensing experience in Ontario relied on it and was a better guarantor of knowledge and fitness to practice law than a bar exam. So I'm glad that this is the general trend. I should point out that in the provinces I was acquainted with, articling students served for nine or twelve months (in addition to taking a different form of bar exam). Things may have changed a good deal since then. But I find it highly questionable that three months of supervised practice, the amount some have recommended, is genuinely adequate to ensure competence to practice law in the absence of further testing. I would find it highly questionable at the best of times, given how brief a time that is. It is even more questionable at present, given uncertainty about what and how much work these new lawyers would be doing, and how much variation there would be in the degree and competence of the supervision. A crisis cuts both ways: in favor of doing something, and against the likelihood of doing it well and in a way that guarantees the protection of vulnerable clients. 

There are arguments against supervised practice and in favor of a so-called "diploma privilege." Supervised practice would not necessarily directly benefit every new graduate. It would not help those who want to or perforce must enter solo practice. It raises questions about specific details of implementation in a way that simply granting a privilege to practice law would not. It quite likely would have a disproportionate impact on students, benefiting not just those with the best grades (which does not seem inherently unjust), but also those with the best connections and pedigrees, and having less benefit for first-generation law graduates and other less advantaged students. If our only concern was that of putting this year's graduates in the same position they would be in had they not faced the impossibility of a safe and timely bar exam, then the diploma privilege would be the most "fair and equitable" approach, as a pair of third-year students write eloquently and movingly in the piece linked to above. And I did say that if we properly separate the three different issues, we should address this issue simply in terms of helping current law graduates.

But, of course, for a helping profession, the goal of helping new graduates cannot be absolute. It cannot be accomplished in a way that harms potential clients or even meaningfully risks harming potential clients. It has to be accomplished in the best possible way given the constraints of professionalism and of putting clients first. Supervised practice addresses those concerns. (No doubt other means could be found of addressing them; and one might add that even with supervised practice, additional measures might be needed to satisfy them.) It does require us to work out details of implementation, but that is as much a feature as a bug. Ease and universality of application is not always a benefit; it depends on what problems it leaves unaddressed. The "diploma privilege," at least unadorned by the kinds of restrictions or requirements that would also raise questions of implementation, achieves "equity" and universality by simply allowing everyone who graduates from a law school to immediately represent clients, without any further quality control. And it does so under conditions that are not like the oft-cited state of Wisconsin, whose diploma privilege, as I noted in my earlier post and Derek Muller addresses here, is ringed round with requirements and supervision of law schools and involves a state with only 25,000 lawyers in total. (By contrast, California has some 170,000 lawyers and New York some 180,000 lawyers. It is easier for an incompetent or unscrupulous lawyer to go unnoticed in such a large population.) The universality of the "diploma privilege," at least unless accompanied by other rules and restrictions--which would themselves raise details of implementation and questions of equity--is just as much a bug as it is a feature. Insofar as the arguments that are typically made for a diploma privilege or other forms of immediate licensure include not only humaneness toward the graduates themselves, but also a concern for low- and middle-income clients and the new needs they face, those advocates should, at a minimum, be willing and eager to listen to concerns about how any particular approach might harm as well as help clients--even if that means selecting an approach that would not immediately help every graduate.

In short, at least based on what I have read so far, I think those states and advocates that have focused on supervised practice have taken the best available approach to the specific problem of what to do about current law graduates in this unique situation--as distinguished, I emphasize again, from the separate questions of what to do about client needs in the current situation and what to do about the bar exam in the short or long term. This is a provisional conclusion and subject to correction and innovation. Others have no doubt thought about the issue more, and more expertly, than I have. And someone might yet come up with a different idea than those that have been most popular or prominent so far. It may well be that a supervised practice approach would not be a universal solution to students' desire to practice law or their financial needs. But it seems the best available approach, given the necessary professional and ethical constraint of putting clients' interests first.   

III.

That leaves the longer-term fate of the bar exam. I would not be sorry to see it (or the current version of it, at least) disappear. I would be sorry to see it disappear without due thought for what needs to be done to ensure the proper education, training, and certification of legal professionals. And I would be sorry to see the question of what ought to be done to ensure access to legal services at this moment, and to ensure the fair and humane treatment of current law school graduates at this moment, confused or conflated with a much broader and longer-term policy question.

One needn't repeat the usual litany of arguments against the bar exam. There's no shortage of writings on the subject. What most of them have in common is that they don't advocate eliminating it immediately or thoughtlessly. There may be articles out there that argue that law school alone, as it exists today, is adequate to ensure competent lawyers who upon graduation are both ready to practice and certifiably trustworthy, although I haven't looked for them and they would bear an enormous burden of persuasion with me. (Since most law schools don't require the same curricular program as the two Wisconsin law schools, they are not an adequate comparator.) I know there are some writings that assert that twelve weeks of training after graduation would suffice. I find that highly doubtful, at least in the absence of significant changes to law school programs as they exist. (As I've said, I could imagine a longer apprenticeship serving that function.) But most serious treatments of the issue, even those that find the bar exam most unjustified, look for substitutes that will achieve in fact what the bar exam is supposed to accomplish, talk in terms of pilot projects, and show some awareness that in the absence of more general reforms, the bar exam, in combination with other measures, serves some purpose. There is a difference between hoping that "this pandemic will finally wrench us from our attachment to the type of competence predicted by closed-book, multiple-choice exam," to quote the Harvard Law Review Blog post I linked to earlier, and concluding that the cure for that "attachment" should be to get rid of the bar exam and continue everything else as it is save for the addition of an impromptu 12 weeks' apprenticeship--the length of a summer associate job, hardly a guarantee of competence or test of fitness.

To be clear, the blog post doesn't go as far as that, and many of its authors have thought at length and more carefully about what might replace the bar exam. If they recommend a short-term substitute for the bar exam, there are ample reasons to do so. Again, however, my point is neither to defend the bar exam, which I'd be happy to see replaced, nor to reject the idea of finding a temporary substitute for it, which I would also support. It's that we shouldn't confuse the question of what to do this summer, or even this February (although we lack sufficient information to do more than plan for contingencies that far ahead), with what is needed in the longer term.

If we are going to think about the longer term, it would be useful to think not just about what would serve as a substitute for the bar exam, but about what needs to accompany that substitute. Not every test is an evil, and one might think that while a two-day memorization and endurance contest is foolish, a series of shorter, subject-specific, possibly more skills-based exams, albeit still requiring substantive legal knowledge, would be a good idea. (The Ontario bar, at the time, had such an approach. It was at least sounder, in my view, than the two- or three-day exam approach.) Or one might go with more of an apprenticeship model. But if we did, surely we would want clear and demanding rules and guidance concerning what each apprentice must learn and what each supervising lawyer must teach. (What use is an apprenticeship as a certification that someone can practice law, if that person is not required to perform a range of legal tasks, but learns only how to do document review?) We would also want guidance on what constitutes satisfactory performance in an apprenticeship, since one assumes at least some apprentices or supervised lawyers might demonstrate that they ought not be licensed. We might, while we were at it, look for more demanding proofs of fitness and character, through the apprenticeship system and otherwise. Law school itself is no guarantee of either. (Some law schools may prefer it that way.) Of course all of this would come at no small additional cost of time and money to practicing lawyers, although better training and fitness might provide some recompense in the form of a reduction in malpractice insurance or a justification for stricter limitations on malpractice awards.

What of law schools? Remember that the oft-cited "Wisconsin diploma privilege" example exemplifies the difference between a privilege and mere license: the privilege comes with a demand that law schools teach, and students take, a larger number of mandatory courses, and with greater state oversight of those schools. That would be a start. So would a requirement of actual skills training, not the nominal form of skill-based teaching that consists of finding a way to satisfy the ABA that every course nominally fits within some "rubric" or other. Perhaps we might consider requiring that a large majority of each law school's faculty have a minimum number of years in the active practice of law--five or more, say--or requiring them to perform a minimum number of hours of meaningful legal practice each year while serving on the faculty. Or we might insist that students take a minimum number of credit hours with actively practicing lawyers, perhaps at the cost of reducing the number of full-time academic faculty positions. At some point, we might well wonder what purpose a third year of law school really serves, especially if would-be lawyers are required to serve a (meaningful, not brief and minimal) apprenticeship. And it would be a good time to think about prohibiting 100 percent finals and insisting that law professors evaluate students through a number of tests, varied in format, over the course of a semester.

Of course all of this would come at no small additional cost of time and effort, and perhaps loss of status, to current law professors. That doesn't seem terribly important. And few if any of these changes would come at a cost to law students. They would still pay tuition and attend classes for a given period of time (and perhaps a year less than they do now) before graduating; they would just have a different, and perhaps better, set of courses and teachers.

This model would not do much by way of conferring prestige or teaching law students to become law professors. But there's not much reason to care about prestige, as opposed to training competent lawyers, and there's very little reason why the genuinely academic and intellectual study of law has to take place at a law school or with a current law professor's salary. Other than a few hundred or thousand students (out of roughly 110,000 law students in the United States) at a few unrepresentative elite schools, I see no reason why most law students would or should care if their schools, and faculty, were subject to different and stricter requirements.

The only change the students might not like is that if law schools and state bars are not to slough off the duty of ensuring the competence and fitness of new lawyers onto the bar exam, it would behoove them to be much more serious about their duty to ensure this. Under such a system, they ought to be more demanding about admissions, more willing to flunk out first year students, or both. Insisting on a particular minimum attrition rate is perhaps as silly as artificially imposing a particular cut rate for a bar exam. But in the absence of a bar exam, one would expect as a practical matter both that law schools would expect and impose a higher attrition rate for first-year (especially) and upper-year students, and that supervising lawyers would be willing and required to state, at the end of an apprenticeship, that some candidate should not be given a license, at least without satisfying additional conditions. It would be better for everyone concerned, one should think, if law schools were more active in flunking students at the outset of the law school process than to allow things to wait until the end. It is also better for disappointed students to lose only a year's tuition than to pay three years' tuition, without a satisfactory result for themselves or for clients.

IV.

These are all interesting questions and prospects, and in many cases perhaps attractive ones. But they are obviously complex. I defer to those who have studied them at greater length and with more expert qualifications. But it does not take any expertise to realize that they are complex, and that they are separate questions. They are related, to be sure. They may be connected. But how connected they are depends in large measure on what is needed in each case. That they can be connected does not mean they must be connected.

That is especially true right now, when various actions are urged not because they would be wise in the long term but because they are urgently needed in the short term. Even if the best long-term approach to these issues requires a more global solution--even if, for example, a proper approach to the question of what should be required for a license to practice law requires changes to legal education, to the bar exam, and perhaps to the regulation of lawyers--it is not necessary that a short-term approach to these three questions requires that they all be addressed at the same time. Indeed, it is not clear that the question of what to do with the bar exam, other than what to do for the next one or two cycles, is an urgent or short-term problem at all. Nor, accordingly, is it clear that we should be paying much attention to commentary on that issue other than those discussions that relate to the short-term question.

We would think more clearly about these issues if we thought about them distinctly and functionally. For each of the two pressing issues, we should ask precisely what the problem (or the most urgent problem) is, what can be done about it, and who should do it. (In the short term, the bar exam counts as an issue only in the sense that we must ask, assuming we conclude that it is necessary to help clients or to help graduating students, what we need to do about it in the short term and what the absence of a bar exam might require by way of temporary compensatory mechanisms.) In each case, we should evaluate any proposed solutions against the metric of the best interest of clients. That is self-evident with respect to the argument that there is an urgent need for legal services, since serving the interests of clients is exactly what is at stake. But it is equally true for the question of how to help new law school graduates, given that legal education and the licensing of young lawyers are ultimately about a profession that exists to serve clients.

Thinking about these issues separately has at least two planning virtues and one other virtue. The planning virtues are these. First, doing so helps us to figure out precisely what problem we are trying to solve in each case. They are not the same problem. Helping to address what is argued to be an urgent need for lawyers to perform client services is not the same as helping to alleviate economic needs and insecurities facing law school graduates. The latter might help address the former, but it will only overlap and certainly is not the identical problem. Indeed, many other steps--direct economic relief, tuition refunds, debt forgiveness, and others--might fully address the urgent needs of new law school graduates without doing anything for clients. And requiring existing lawyers across the country to serve clients, particularly in the hardest-hit states or cities, might fully address the urgent needs of clients without doing anything for law school graduates.

Second, treating these as distinct issues helps remind us that the goal--assuming we accept that each case is urgent and demands not just some action, for the sake of looking concerned, but effective action--is to do what is best for each population, especially the client population. In addressing the client problem, if there are many lawyers who are currently relatively idle and willing to take on work on behalf of a body of clients in need, or could be required to do so by state bars, and who are already experienced in the practice of law, presumably that would be better than funneling those clients to new and inexperienced lawyers, and at a minimum we should try to provide those clients first with the services of experienced lawyers and only then with inexperienced ones. In addressing the student problem, we should remember that the urgent question is financial; addressing the general desire to obtain a license to practice law despite the absence of a bar exam is important and certainly will be important to students, but is not as urgent and is more of a desideratum than a crisis. Insofar as "do no harm" is the key principle of any helping profession, we should fix the most urgent problem, financial need, in a way that requires as little of whatever risk to clients is involved in licensing inexperienced lawyers in the absence of a bar exam as possible.

To the extent that we cannot do so simply through measures that merely cause great financial loss to law schools and law firms, then it makes sense to go further. But we might tailor those approaches in a way that might not help everyone, but would do the greatest good for the greatest number of people without risking harm to clients. It would make little sense, for example, to license new graduates to immediately practice law on a solo basis, for populations or in practice areas that are not in a state of urgent needs, if it is not necessary. It would make the most sense to funnel new graduates into closely supervised practice under experienced lawyers, and either toward the clients who are in the most urgent need or, perhaps, away from them and into the areas where they could do the least harm. A large law firm, for instance, could redirect already-experienced associates to urgent legal relief efforts, while assigning more routine and/or longer-term work--under supervision--to new graduates.

As for the bar exam, it really makes much less sense to think about it past July or, on a contingent planning basis, February. Although I would happily support many reforms that involve getting rid of the bar exam, and although it might be nice to think that current events would move us out of complacency and lead us to re-examine it, we are unlikely to make the best or most cool-headed decisions about its long-term future in the middle of a rather time- and emotion-consuming emergency. We only confuse the issue--all three issues--by treating this as an urgent and central issue that demands an immediate fix, or by making arguments on this score that ultimately have more to do with reasons why some would like to eliminate the bar exam permanently. 

The third and final virtue is that separating out these questions is likely to lead to more reliable and trustworthy arguments, based on the most solid foundations and with the greatest amount of humility and narrowness, and allow us to rely less on sweeping efforts at persuasion, however moving, that jumble several issues together and then stir in emotion and affective rhetoric. It leaves us less vulnerable to taking steps that risk satisfying pre-existing, long-term agendas that some might favor but most of us have not thought about carefully enough. Expertise on the general issues involved-- in this case, legal education and its reform, the bar exam, client services--can be both a benefit and a drawback with respect to any urgent issue. Obviously, we benefit from the work and thought that has gone into amassing that expertise. On the other hand, the evidence suggests that experts are weaker at predicting than at describing, and it is also the case that some experts may have strong views or passionately advocate positions that outrun their actual expertise. Of course I am not suggesting that has happened in this case, with respect to any particular individual or position. But it is a risk. The phenomenon need not be conscious and deliberate. And onlookers who would like to arrive at a sound position on these issues will be ill-positioned to distinguish the recommendations that are warranted by the immediate and specific circumstances from those that pre-existed these circumstances and might not apply to them especially well. The best way to do that, at a minimum, counsels that we actually look at each problem in itself rather than treating all three issues as if they are the same problem or demand the same solution.