Is This The Beginning Of The End For The Bar Exam?

0:11Hello, welcome to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I'm joined by my colleague, Chris Williams. Yes, you are. And we're here doing what we do usually, which is recap kind of the biggest stories of the week that was in legal for Above the Law. And we're going to begin, as usual, with a little... The trumpet fanfare means we begin with a little bit of small talk, which, you know, happy first Monday in October, when we're recording this anyway. Hello? Anything? Oh, Joy. I mean, spooky. I don't know. I mean, spooky is correct. It's going to be like I think my prediction is pain.

0:56But yes, so we begin the assault on a modern thriving society once again on the first Monday of October. I did see that they just pinged out that they are not taking the Ghislaine Maxwell appeal. So, I mean, she's gotten pretty much everything she could possibly get out of this administration already, but the Supreme Court's not going to bail her out anyway. So there's that. Speaking of sex crimes, Diddy's been given his sentence. Yeah, that's true. Diddy got sentenced. The wheels of justice turn slowly, but they're greased with baby oil or whatever. I don't know. Honestly, this was more medium talk than small talk.

1:38I saw the new Leonardo DiCaprio movie recently Okay I didn't know he even had one What's his new one now? It's called One Battle After Another Oh yes yes The Thomas Pynchon book Yeah And it's one of those things where like There are just moments where sometimes an actor Just really showcases their skill in the art Because his love interest in the film is over 25 And it really seems like It really seems like he's attracted to her oh wow but yeah it is a uh i didn't like the film i thought the i thought the politics of it were horrible and i don't want to give any spoilers to people that might go see it i mean it's it's it's pretty it's a nice looking film but uh there's a a lot of race play and slurs and there is a group of people whose political organization is uh you know great uh shout out to the skateboarders but the other people terrible job i feel like most of them end up either dead or locked up and it felt deliberate and that's about as specific of a criticism i can give the film without i feel like ruining anything about it well the new book comes out tomorrow i think so i mean i think it's a detective book this time so being interesting uh yeah thomas pinchon's new uh newest book comes out tomorrow.

3:03So he, you know, he's like a, he's like one of these reclusive novelists who like writes a book every like 10 years and then disappears again, that kind of thing. So he wrote, he wrote the book that that movie is based on, and then his new one comes out tomorrow. I've seen reviews, but I haven't, I haven't really dug into what it's about or anything oh speaking of taking time to make art in honor of katherine rubino's absence i feel like somebody has to acknowledge the new taylor swift album there is so much backlash in that from people who were presumably beat swifties you know it's just it is just nice to see i saw some of the reviews it was like we know she bought this there's no way this got a hundred you know yeah it it does it did seem like uh a half a half cooked version of one of her albums almost as though she needs somebody around to tell her okay not every track needs to make it uh but whatever i i did see somebody on social media said she may be the first person to ever get sexually transmitted cte i thought that was funny uh yeah no like it just fairly weak outing uh all things considered And I'm not the big fan that Catherine is, but, you know, I don't, I mean, I think generally speaking, Taylor is pretty good.

4:30But this was kind of like a collective meh, but whatever. Okay, so we've talked relatively small. Let's dig into the stories of the week. a big story going on that, you know, impacts a small group of people for now, but hopefully can, you know, be the precursor to a broader movement. Utah has opened up the door to an alternative path to getting a law license that doesn't involve the bar exam. That's when you hit the fanfare button on the soundboard. Yeah, yeah. I mean, I did wonder about that. I was like, oh, I can't hit the trumpet again. I should, uh,

5:18no bar exam. Yeah. Uh, no, no bar exam, uh, which is very exciting, uh, for a lot of us who think that the bar exam is a total waste of money and effort. Well, so one of the things I think is super interesting is that given the alternate pathway to licensure, it's not like there won't be tests um but the thing is they want to have a test that should a person who is currently licensed and a good lawyer should they pick it up they'd be also able to pass that which is a much a far more intuitive way to approach a licensing scheme than yeah whatever bullshit we have now but just think about it like you think neil katyalka pass the bar right now you know Yeah, nobody can.

6:02Yeah, because, well, and nor should they be able to, because one of the big knocks on it is it's a generalist doctrinal exam. Like, if you dedicate your life to 30 years of being an M &A lawyer, what do you know about the rules of hearsay? Like, you wouldn't. Yeah, no, I spoke with a member of the task force who put it together, and one of the things Professor Bramble told me was that the logic was, in a lot of ways, for the test portion that takes place. So I'll break down. Let's take a step back. So this alternative, you can just still take the bar exam if you want, but this alternative leans on both curricular accomplishments.

6:41There are some classes you need to have taken and so on, as well as practical supervised work. They have a 200 – I think it's 240 hours off the top of my head requirement of supervised work, plus the ABA now requires law schools have six credit hours worth of practical supervised work, which over the course of a semester is a lot, such that it ends up being around 500 hours of supervised work. And then on the back end of that is the written exam that they're creating that, as you pointed out, is designed to be something that a competent attorney could pick up and take today. One of the things that the professor was telling me was that the thinking in the room when they were coming up with the plan was largely if this is about testing minimum competence and somebody who's a experienced practitioner can't pick it up and pass it, then either everyone's incompetent or the test is wrong.

7:40And so there's a plan to have a test that will be a closed universe that will draw on themes that lawyers, no matter what practice area they go into, would be able to know. I think it's a great program. Hopefully it's something that other states will start to follow. Utah, of course, very innovative just as a jurisdiction. We talk about this all the time, whether it's tech or bar stuff. They were the first during COVID. They were the first jurisdiction to open up their doors to maybe we should have some kind of a diploma privilege solution here because of the lockdowns. So always forward thinking.

8:22Really interesting idea. I tell you, the one state that needs to be paying attention, California, because like their experiments with the bar have been less than stellar. Yeah. And one of the things that came about from looking at how Utah has been handling it after COVID, like there has been no real like challenge and like the – no real like a – even like challenge or gap in the quality of lawyers that haven't been licensed through the bar compared to people that just had like advanced diploma privilege or whatever they called it. Yeah. I mean the example of Wisconsin is always telling because Wisconsin is diploma privilege.

8:57That is where the NCBE who writes the bar exam is headquartered, weirdly enough, in the one state that doesn't use it. The Wisconsin example, we have data. So that's been going on for years. We know that the quality of attorneys coming out based on disciplinary and disciplinary proceedings against them, so on and so forth, there's no difference. The public is not better protected by the bar exam existing. So it's really useful. And, you know, California, they got a lot of flack. Their rollout was too quick. It was done because they had dug themselves into a hole for years and didn't realize – it didn't act fast enough to get out of it.

9:42But I still – I'm still a big supporter of their decision to try and write a different bar exam. I think they failed at doing it, but I don't want to – I feel like their failure has been hijacked by forces who want to say, see, this is why you should all just take the bar exam. And I'm like, well, no, let's not do that. I think Utah, it sounds like we'll see how this implements, but this seems like a step in the right direction. Yeah. All right. Well, let's talk about some big law stuff. We learned this week that Cadwallader, the oldest law firm, is getting itself a co-manager. This was the biggest story of the week for us last week, as it turns out, which you wouldn't think that internal C-suite shuffling within law firms would be a huge, huge story.

10:38But I think it really speaks to how there's a lot going on under the surface given these firms. What was your initial reaction to finding out about this? Like as a person who's caught up on the industry and knows the inside baseball of it? I wouldn't necessarily go that far, but I will say. Compared to the average person. Like the average person has been covering that shit for over a decade. That's fair. That's fair. So, well, I thought it was interesting. So Ken Walleter has always existed in this. Part of the reason that they're so old is that they are slow and steady. They are never the most elite firm in the list, but they're always in the upper tier, always a very respectable big law firm that just stays the course.

11:26This picking up a new manager obviously comes with the questions, why are we doing this? We see the story they're telling is, oh, we work together and whatever. But they've lost something like 40 partners over the last few months. That is not good for a firm. And a lot of this is also tied to the capitulation. This is one of the firms that signed a Trump deal. it was a weird one to sign a Trump deal I always thought too because Trump targeted firms at the very either where there was a very personal grudge someone associated with the firm had done something that had made him mad you know or they were you know the biggest firms Cadwallader really didn't fit that mold in either way so it was a little weird that they were dragged into this I thought were they dragged into it or did they stick their neck out I remember there was one firm where they like well good point uh that's an excellent point does it have an answer or yeah oh no oh no i was just like rooting you on on that point uh i thought you were gonna get going yeah so obviously the you know paul weiss is the one who they already had put out an executive order uh and you know they put out these executive orders for the firms that fought back too uh but most of the firms who capitulated kind of preemptively made their deals without having a order on the books.

12:53But it seems as though they were being called and hassled by the administration to make a deal. So this is you're right. This is one where it's not like they were, you know, needed to do this. But yeah, it seems like that sparked a lot of the departures, probably, whether it was just for political reasons or reputation, being harmed by being part of the deal or just a sign that it seemed as though and like that's the other thing if i'm a partner even if i'm not very politically concerned about it a firm that voluntarily goes down this road like paul weiss's argument was we got tapped on our shoulders yeah well the executive order as structured would have made it impossible for us to keep doing business yada yada got it okay well maybe but from a cadwallader perspective you you have to say so is this signaling that you think we would not be able to do business if we were hit with something like that does that sign signal deeper problems for us uh but yeah people are picking up and leaving and that is a reason to you know look for new management now the speculation is that this is a precursor to some sort of a merger or tie up.

14:10You know, they're officially denying it, obviously, saying they are not currently engaged in anything. But, you know, it does raise that specter whenever you start changing around your management. Now, who would that be? I don't know. It's hard to kind of speculate what they would be. you would think somebody maybe kind of following the a and o sherman model like a tie up with somebody overseas might be an option but i don't know it's a it's an interesting point tell you one thing though if they merge with either a bigger firm or a firm whose like name has priority it'll probably be easier to say so yeah i mean it would be it would be wild to lose that time modern name, but oh well.

14:55Their white shoe? Yeah, I mean, yeah, yeah. I mean, not after Labor Day, obviously. I mean, there have to be some standards kept, you know. Yeah. All right. Well, as we previewed off the top, it is the, you know, first Monday of October. So we're, you know, going down the rabbit hole of the Merritt's Docket again for another year. So it may seem like the Supreme Court hasn't been out of session because they've continued issuing shadow docket opinions all the time. But they have been until now. And they're back doing their thing. We had a bunch of stories kind of over the week of the shenanigans they've been getting up to.

15:41I mean, I guess the biggest one being, speaking of shadow docketing, the biggest one being their move to take on these, like this, in particular, this Federal Reserve firing, the Lisa Cook firing, purported firing anyway, where the administration has said we're going to fire a Federal Reserve governor. That case has now percolated, and they will hear argument on that. This is obviously something they were hoping not to deal with. They have been utilizing the shadow docket to rubber stamp all of these firings, which are largely – I mean they're statutorily illegal, but they've been arguing that presidents can do whatever they want.

16:26Now, they attempted to avoid the Federal Reserve problem by putting some dicta into a previous opinion saying, well, obviously this doesn't apply to the Federal Reserve. The administration did not take that invitation to leave it alone, leave well enough alone and has attempted to fire a governor. Now, the Supreme Court is allowing her to keep her job while the case is pending, which has confused a lot of the – confused the dissenters because the posture is zero different than all the people that they've said Trump can fire in the interim while their cases are pending. But this is – I really viewed this as – and what we wrote about was this is something of the shadow dockets kind of confronting reality.

17:16They had been hoping to keep all of this stuff under wraps, to keep all of this happening with no briefing and no explanation, and their hand got forced. But I think a lot of it is that they wanted to keep it there. you know obviously people have questioned why do they want to do all this in the shadow docket they have enough votes what do they care uh they could handle this the the real way uh and there's been a lot of oh you know the lack of integrity and uh trying to do this fast uh and i don't discount either of those but i also think that a lot of the logic was that by doing it on the shadow docket where it's really temporary or basically glorified injunctions, they can get the effect that they want to give the administration of basically firing people and hold it, tying it up for years on end without actually overturning something like Humphrey's Executor.

18:16So they can then turn around when the next Democrat comes in and attempts to fire all of the people heading all these agencies, they can say, whoa, whoa, whoa. I mean, we never overruled that decision. That's a difference, I think, from what some of the people, analysts are saying. A lot of analysts are like, well, Humphreys executive, the writing's on the wall. They clearly are hostile towards it. And I don't think they really are. I think they're hostile towards it when it impedes Trump. I think they would love to keep it in place in any other circumstance. It's always nice to see one of those powerless to hurt him, but we can help him sort of things.

18:55Yeah, sword and shield. thinking you know the thing about it that's that's most interesting to me is that the lower courts if it was way to call them lower courts but i think that is the nomenclature of course that is um are being impacted by uh are being hit with the expectation to treat the shadow docket outcomes as precedent but my thing is and to your point earlier like why don't people just why don't they just go through the process of writing out the opinions even when they write out the opinions it can still be difficult to figure out what exactly they want i mean if you Remember when they overturned Chevron?

19:27It was like, what do we do now? He was like, we're overturned, but not really, because if you squint the right way, you know. And it's like, I just wish we were in a position where, like, there wasn't a circumstance where lower courts would be screwed. Because even when they're written all the way out, they're still, like, either vague or still the expectation that they'll give a ruling and then it'll interact with the Trump administration in such a way that, like, well, actually, we need to clarify now. you know because like i remember this this may be a little bit of a stretch but it's my mind it makes sense i remember when bruin first dropped um courts are like okay tanks are guns now and you have a private right to them and then they were like those like following up clarifications on bruin what have you and they were but they were written from the position of well of course that's not what we meant blah blah blah but it wasn't it wasn't clear it wasn't clear when the opinion was given that that's true there are written ones that don't make a lot of sense That defying point really is brutal because the purpose of those opinions, those emergency petitions is to say we're going to hold this until it percolates through the system.

20:37It is not a final answer. But given that it's not a final answer and that's not the standards for it, that that justices, in particular Gorsuch, are saying other lower courts should act on what we've said even though we didn't explain ourselves and it is explicitly a temporary order that should be limited to within the four squares of the caption is really dangerous. and it is indicative of how they want to kind of create vibe precedent and hold the lower courts to it. I view it as something of a form of underruling. They wanted to create the conditions where these lower courts would take steps to get rid of Humphrey's executor on their own without saying anything themselves so they could reimpose it later.

21:30Was that a Joeism, by the way? Because I noticed the underruling in the article. I was like, I know it was clever. No, it usually refers to a slightly different thing. But yeah, no, it is. It's a it's a thing. I'm reapplying it here, but it is a thing generally. Well, less less cool points, but still acknowledged. Yeah, fair enough. We also had, because we're coming to the end of their vacation, or we came to the end of their vacation, we had justices doing their – we've had the ACB and Sotomayor book tours that we've talked a lot about. Justice Thomas gave himself a speech as well. Two big stories coming out of the event he went to at Catholic University Law.

22:14He said that he expressed that precedent and stare decisis are shrug emoji in his eyes. apparently the grand defender of the Anglo-American judicial system believes the Anglo-American judicial system of common law doesn't matter to him. One thing I will say about that, I do feel at least in the context of Thomas's jurisprudence specifically, I feel like that sounds like a Thomasism. I remember one time I was in law school, there was this dissenting opinion he had where he basically saying that we need to overrule the slaughterhouse cases because factoring in what that did for how we interpret I think it was the due process aspect of the 14th amendment just smuck the whole shit up so in complete fairness to Thomas and yes I threw up in my mouth saying that I do feel like he's been on the type of the type of jurist that was like if we don't like these opinions we can get rid of them so yeah I didn't really consider it to be news but like I Like if Ketaji Brown Jackson said that, that'd be way more interesting.

23:19But I've seen Thomas's postures over time. Well, no, that brings us to – that is a good point. I think we all very much believe that they don't care in the real world, that they were overturning precedent with zero compunction already. But is there some psychological or notable issue with them saying it out loud? Is that a thing that is new? Whereas they in the past have tried to dance around it. Is this now signaling a newfound excitement for tossing decades worth of precedent? i think that um this this may be a redirection maybe an answer to your question at this point i can't tell but i think what it is i think it's a breaking key fab you know like the like the thing that like wwe wrestlers like they they have to put on the act like they like never even if they get like injured in the moment their first thought is what would triple h do you know um because like what was it i think in the dobbs decision where like they were with alito he was like citing something back to the 1600 it's like part of his justification so like there is there is a an artifice of being interested in the history or like this notion that the history is was actually making the decisions and that the justices are no more than conduits of the thinking thus far and but and to say fuck star decisis on some level is to disrespect that notion like because it's like why do you have to go back to 1600 you know like why are you playing the game if you're going to later say, eh, it's a game.

25:06I'd rather the commitment. And that's one of the things I, and this is an aside, that's one of the things I appreciate about the judges and you're wearing the white wigs. Because I know it's goofy, they have to know it's goofy. But you can clearly see the traditions in play. So the other aspect of this Thomas speech that came out was he, you know, years ago, he was teaching a course at George Washington, and he ultimately bailed on that course mid-class. And the, you know, it was immediately after Dobbs, we all kind of made fun of it at the time as though it was because he was, you know, kind of snowflaking out.

25:48And it seems as though he was. What he explained in this event was that after Dobbs, he just couldn't keep teaching that class because of unpleasantness on campus, which seems to be that students, a bunch of two L's and three L's looked at him like, why are you so stupid? And that was too much for him. I wonder, I don't know if he was teaching at the time, still trying to mentally do the math, but I just imagine him teaching and his students asking him about john oliver john oliver there we go when john oliver offered him like a million dollars in like a big rv it was like he said a million dollars every year in an rv if you step down i would have loved to been in his classroom and ask him about that like hey did you see tv last week you know so yeah i just really drove home to me uh the and i kind of refer to it as like the thing about driving home is if you have an rv you know no you're already you'd be home by now Yeah, it really kind of drives home something of the cowardice of their convictions.

26:51They're – you know, who doesn't spend their whole time worried about what a bunch of students think about them? The people who wrote the landmark Supreme Court opinions of old, right? You know, like they never had those worries because, you know, they were right. And even – I mentioned this in the article, but in a very cynical way, the chief justice cited some of the civil rights era judges and the terroristic threats that they had to deal with. Now, when he wrote about that in this year's annual report, he compared having crosses burned on their lawns to law bloggers making fun of them. Not really the same thing, but I wouldn't think.

27:35But it does also speak to how there were people and judges in this country's history who made unpopular but morally right decisions and were willing to stand by them. Meanwhile, this dude gets rid of 50 years of individual, you know, basic civil rights for women and goes, well, now I can't teach my class because people might be mean to me. speaking of law burnings um this i didn't mention this over this because small talk because it felt too substantial to mention then but the uh there's a judge who blocked a trump administration request uh she was hospitalized after her house was burned um this is i believe she wasn't there i think her family was all hospitalized though because her family was at home okay well that's i think yeah looked up later not sure yet but this was i think it was like this is like right after i want to say was it Stephen Miller was saying that judges were being terrorists for not going along with so like this disorder stochastic violence that is actually happening like oh no they said a mean word when I was at Ruth Chris like you know yeah judges yeah and now she had already been receiving death threats uh she had put a temporary block on the administration's attempt to get access to South Carolina's voting rolls because the administration is attempting to seize voting records from bunches of states.

29:04She'd put a temporary block on that. And then, yes, now the House has burned down, which we don't necessarily know as though those two things are connected, but obviously deeply concerning that they might well be. It's just in the strange, suspicious, odd phase of connection. You know, and as far as violence against right wing judges, which is very few and far between compared to the death threats that are happening to judges. And indeed, many of these judges are right wing. They just also respect that the law says Trump is wrong. But more are happening on that front. But it is worth noting that we got a sentence in the would be Kavanaugh assassination, which was, you know, not to say it was inchoate is really stretching the word inchoate.

29:58Like they were picked up a long way from his house, but were theoretically planning to try to kill Kavanaugh. That ended with an eight year prison sentence driven largely by the fact that the assailant, The attempted assassin confessed, showed total remorse, seems to have zero risk of recidivism. But people are – Republicans are melting down that it's a mere eight years in prison as though eight years in prison isn't a really long time to be in prison. Hell of an internship. Yeah, for a crime that didn't happen and seemed like it was a little bit of a – it seemed like it was a half-baked plan anyway, not to diminish it.

30:46I mean clearly that is something that requires prison time. But eight years seems like quite a good amount of prison time for somebody who's actually not a recurring threat to the public. but you know they're melting down meanwhile we have more houses being attacked uh and judges receiving threats all over the country well on that note that's yeah uh on that on for a unhappy note thanks everybody for listening you should subscribe to show leave reviews all of that you should be checking out the jabot katherine's other program i'm a guest on the legal tech week Journalist Roundtable most weeks, probably not this week since we're all going to be at a conference.

31:31You should be reading Above the Law. So you read these and other stories before we get to them. Follow us on social media. I'm at Joe Patrice. Chris is at Rights for Rent. The publication is again AboveLaw.com. And that is it. Peace.

31:55Thank you.