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Tuesday, April 04, 2023

Steven R. Smith on COVID and Bar Admissions

The state of the discussion cycle being what it is, it may be hard to remember just how much talk and advocacy there was in spaces like this and elsewhere about bar admissions around the first year and a half of the pandemic. Quite understandable, of course. But the problem with moments of advocacy around urgent situations is that it's like love, futurism, and news commentary: it means never having to say you're sorry. So I'm happy to spotlight this paper by Steven R. Smith, titled COVID and Bar Admissions. Its goal is to take a retrospective look at activities and advocacy around bar admissions in the summer of 2020 and 2021, to look at the various options that states went with (with a particular focus on the diploma privilege), and to note "the 'disconnect' between some law schools and bar admission authorities" during that period.

The paper is less normative than evaluative. But it does insist on one general descriptive and normative baseline: that "[t]he core purpose of licensing is public protection" [I would have been happier if he had added the word "ostensible" somewhere in there], and that the relevant question in considering law school and state bar responses to the pandemic, and licensing reforms going forward, is the public interest. I suggested at the time that too often, discussions focused instead, and often solely, on law students, whose interests are important but must take second place to the needs and interests of clients and the public. (Arguments were made at the time that rushing graduates into practice would serve the public interest for access-to-justice reasons, because those students would somehow get funneled into serving people in pandemic-related need or free up other lawyers to serve those people. I think that was more makeweight advocacy on behalf of students than serious or plausible argument. Smith notes that there are limited data on this point but suggests that the argument does not appear to have been borne out in fact.) The interest of clients and the public, not law students, is indeed the correct measure of any short-term accommodations or longer-term reforms, and it is useful to have an evaluative paper that proceeds with that standard in mind. Smith most certainly does not reject reforms to the admissions process in this article. But he does argue that any such reforms must be about the ultimate and not the intermediate beneficiaries of bar admission: the non-lawyer, non-law-student, non-law-school public. 

I leave it to my betters to evaluate Smith's paper and its strengths and weaknesses more fully. I cannot say how it will fare upon a more critical look. I assume there are other data out there. But I wanted to call attention to this paper because it deserves that more careful look. There was so much commentary at the time, but there has been virtually no acknowledgment or mention of Smith's article so far. (It is easy to forget that there was a whole Facebook page, with hundreds of law professor members, devoted to law school pedagogy during the pandemic. It's still going--and COVID gets mentioned in passing maybe once every dozen posts or so, if that. It would be nice if the die-hards on that page mentioned a paper like this, which actually addresses the topic.) Mutual flattery, sometimes misdescribed as "support," is the order of the day on social media when law professors promote each others' papers. Occasionally the word "brave" will be used, generally to describe papers displaying no particular signs of bravery. Inasmuch as Smith's paper calmly examines an issue on which there was much strong feeling, and does so in a way that "centers" (to use a currently popular abuse of the language) the interests of people other than law students, it deserves the label more than much scholarship I see in our discipline.     

Posted by Paul Horwitz on April 4, 2023 at 10:46 AM in Paul Horwitz | Permalink

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