Utah emergency bar order, and the high costs of our bar federalism

The Utah Supreme Court made the important and, as Dean Gordon Smith of BYU notes on Twitter, courageous decision to permit emergency admissions of 2020 grads, under a deliberate set of attorney supervision rules.  These rules are in the spirit, even if distinct in some specific, from the supervision rules emerging from a growing number of states (New Jersey, Arizona, Tennessee, etc.).  I agree on the whole with this move, not grudgingly, but enthusiastically.  To be sure, there are difficult issues regarding lawyer supervision, which I leave to others to probe.  Our students need bold leadership in this time of emergency, and Utah here, as elsewhere in the legal innovation space, has taken this compassionate and thoughtful step.  And, insofar, as I suspect, the deans of the two excellent law schools in Utah, BYU and the University of Utah, were working hard on behalf of this result, they deserve our kudos for their work on behalf of these future Utah lawyers.

However, I note one of the peculiar features of Utah's rule and that is the privilege is limited to law schools whose aggregate bar passage is at least 86% of first-takers.  This clearly covers BYU and Utah, which I will surmise with no special evidence, was part and parcel of the rationale for this particular criterion.  However, one of the consequences, which, again, I will speculate was unintended, is to impose a bar on graduates of law schools who take the bar in states where the cut score is high.  California immediately jumps to mind.  But there are others who would have a difficulty meeting this standard.

As Dean Smith has said on Twitter, we should recognize that this includes a small number of students, that is, students who are already signed up for the July 2020 bar.  (I will push back slightly on this just to say that Utah might, if for no other reason than its strong LDS community, draw in a not trivial number of students who have studied elsewhere but look to return to Utah.  The University of San Diego, where I had the privilege of serving as dean a long while ago is such an example; so are the law schools in Arizona and UNLV. Anyway, you get the point).

This Utah result flags a larger phenomenon, and that is the rather wide diversity in bar cut scores and the resulting difficulty of reaching any defensible equilibrium on what is a good enough score on which to settle.  If other states are going to go down the path of Utah in requiring a bar passage threshold, they are going to face this same conundrum.  Some of my dean friends in California might, rightly, see this as another illustration of the particular disadvantage their students confront because of California's high cut rate.  Where I would point to is somewhere different, and that is the extremely vexing situation that exists and persists in a world in which all fifty states have their unique rules, rules which at least balkanize legal practice and, at worst, raise the spectre of protectionism.  Something for our state supreme courts to think about, now in this period of crisis and emergency.