The Bar Exam Death Drive Becomes Dangerously Literal

0:11Hello, welcome to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I am joined this week. We're a little short staffed, but I'm still joined by Chris Williams. Howdy. And we are doing what we do every week, which is go over some of the big stories from the week that was in legal, especially stuff that we've covered here at Above the Law. But we begin with a little bit of small talk. How are you doing? I'm pretty good. Good. I recently heard about this game my friend has been mentioning. It's called Slay the Spire. It's like a combat turn-based card game that's like 2Ds, a fighter.

0:54And it's really nice. It's really making me focus on getting really good turn efficiency. I didn't really grow up playing poker or spades or spit or all those games where you really got to pay attention to your hand and see what the optimal play is. So it's working a part of my brain. I'm not used to working, but it's still cool. That's interesting. You know, that's an interesting avenue for further research. I wonder if there's something to be said for exposure to games like that and, you know, I don't know, like legal skills even, like deposition defense as opposed to, you know, transactional work or something like that.

1:33Because there are certain legal tasks that require more of a holistic vision about what's going on around you at all times. I wonder if there's something that speaks to that, you know, like you're more likely to be a tax lawyer if you don't have that, you know, because they don't exercise those same quick turn skills. I'd be interested in somebody looking into that. Well, as far as portable skills are concerned, what is it? I think it's either ABA Journal or Law.com. They're like, oh, how my time as a cookie salesman taught me how to do transactional law. Like I keep seeing all these articles about like everything helps you be a better lawyer.

2:14Yeah. So, yeah, they got that series. Well, it's like how they became partner, too. It's like it's how my gambling addiction helped me become a founding member of SCOTUS blogger, you know. Yeah. Oh, poor Tom. He's not poor. That's the thing. He's making money. Well, no, if you read that, if you read that complaint, it seems like he might not have been doing as well at the tables as he I said making I didn't say keeping yeah well anyway it's a it's interesting yeah no for me I've just been just been trying to plug along like we've got a lot of a lot of conferences coming up and so I'm just trying to try to get my life in order before the the run of them all begins I just got invited to another one the other day I don't think I can make it.

3:07We'll see. Yeah. So I'm just trying to, I've, I've done nothing other than work to stay ahead of things, which brings us to, I guess we should start talking about that. Let's close off. So let's talk about the biggest story in legal from this last week, which is a twofold story. I, you know, there's a specific story and then there's kind of a larger story surrounding it. To start with the second half first, the largest story around it was last week was the bar exam, which means that for a lot of you out there who are, you know, just out of law school, took the bar exam. Congratulations on that being over.

3:53The more specific story and more horrifying story is that in New York at the Hofstra exam location, a student appeared to go into cardiac arrest. They are alive and okay from what we hear now, which is the most important part, but the story itself was kind of a mess. The person suffered this about 15 minutes, according to most of the reports. There's a lot of details that vary, but there's some consistent themes that we can pull out of it. About 15 minutes before the end of the morning the session collapses turns blue isn't breathing test takers are calling on the proctors to do something about it proctors are by most accounts telling them to be quiet and return to the test just not great students don't or i guess not students uh former students uh examinees do not have access to phones of course during the test so they can't call emergency services so they're begging with the proctors to do so.

4:54Eventually, campus security arrives first, EMTs later, the defibrillators are utilized, chest compressions are happening. All the while that that's going on, proctors are continuing to tell the students to, or I keep saying that, the examinees to continue taking the test, even though they're sitting right next to somebody who may well be dying. And then at the end of the scheduled time for the session, they tell everybody to go ahead and take lunch and just walk past the person who's on the ground getting chest compressions. Yeah, it's funny. I remember one time I was studying for the MPRE and I was like, you know, these are just scenarios that have never come about, but it's worth knowing them.

5:40And one scenario was, say you're in a test and a person next to you was dying. Do you A, continue testing? Continue taking the test. B show common human decency. And I got it wrong. I picked B. I should have known. So congrats to all these future lawyers who will be expected to act ethically, who did the great job of not helping. That's the thing. I hope that most people were like, yo, what do you mean keep taking the test? Well, I mean, so on that front, actually, I'm not I don't have a lot of complaints with the students. It seems as though, by most accounts, students who were close enough to the situation to know what was going on were calling upon the proctors to do something.

6:23And the proctors dilly-dallied and by from what we're reading, the people who were there were saying, no, you you have to do something here. As far as everyone else continuing to take the test, when the proctors say go ahead and take the test, I feel as though most of them were responding. I did read one test taker who was near the incident wrote an account on LinkedIn and explained that from their perspective, they continued taking the test when they were told because they had a somewhat reasonable belief that the adults in the room were doing something about it. You know, they didn't have a phone.

7:03They weren't medical medically trained. They couldn't do anything. The proctors were saying, OK, we've got this at the point that they said that continued because what else are they going to do? Which I don't have a lot of blame for folks in that situation. The problem, of course, is the administrators. the idea that the Proctors didn't respond immediately and believe that they needed to do anything and then when they did seemed to dilly-dally by the you know from what we're reading is a real problem yeah but I don't even necessarily give it all on them right uh because it just it's a system breakdown all the way down uh I don't know I feel like when you say you don't give it all on them and you say it's a system breakdown could you be a little more specific rather oh yeah because some people use it as like a throw arms in the air oh well you can't blame the ss not to you know oh no no no i you oh no no like it's it's like where does the agency where does the agency and blame lie here if it's not just the the bar exam uh it's in the bar exam so the these proctors are usually are not really the employees of the bar or anything usually they're people who are handed a piece of paper and told here's the protocols you're supposed to follow.

8:20Why does the Board of Law Examiners not have a series of protocols for an emergency? Who the hell knows, but that's a problem. How is it that the bar exam has gotten to a point where they don't afford folks at the agency to do an emergency stop when something comes up that requires it? Part of the reason for that, of course, is that the NCBE is an insane organization that believes that anything that disrupts their chosen administration of the test and their rules, it makes it fun, you know, is the single worst sin that could ever happen. We saw all that during the COVID situation where there were suggestions about how do we deal with this test during a global pandemic?

9:03And the NCBE's response was, you do it the way we always do it or else. Obviously, eventually that gave way to reality, but there's a deep problem that stems entirely from the top down of why do we have this test and why do we put so much on this test to the extent that it has become a, in this instance, quite literal death drive. They refuse to do anything. They are willing to let people die rather than mildly inconvenience the order of the test as they see it. Speaking of, shout out to the anomaly response. They evacuated the test for the folks in Hawaii because of the earthquake that was, I think off the coast of like Russia or what have you.

9:50Yeah, off the coast of Kamchatka, which was a moment where all of us who grew up playing risk as children were like, oh, I know where that is. Because that's one of those key territories because you can get from there into Alaska. So anyway, but yes. Quick on that. Point for risk being useful? Yeah. Calculus. There are a lot of people that found risk more useful in life than calculus. I'm just saying that. Just put it out there. But yeah. Yeah. No, so but that's a great point. So when Hawaii did that, fearing tsunamis, they decided to maybe put off the test for a day because evacuation, which makes sense.

10:30I actually wrote about that at the time and thought, no, this is the sort of thing that I'm willing to guess probably irritated the hell out of the national bar examiners. They were probably not happy with this because they exist in a world where they think that any sort of delay means that there's somebody on the somebody on another coast who's like texting answers to somebody else. Oh, Hawaii delayed it. That means they're going to be – the test is compromised because somebody's going to get inside information from New York. That's a paranoid world that these folks live in, but it's also a world that they live in because of the nature of this test.

11:13This is the problem with testing the fitness of attorneys based on a one-shot doctrinal memory test that we administer only twice a year. I'm surprised there was one that didn't say, can't we just tell them to wear swim trunks? Right? Yeah. That seems much more what they would do or kind of a, why don't we move the test location to a different place? And if people can't get there on a moment's notice, then screw them. That seems like the kind of world in which they usually operate. Right. But but again, this is the problem with this sort of a test as a measure of law licensing. And we had the covid moment where we we had to consider the possibility of this test.

12:05Needed to be handled differently because of emergency conditions and the reticence that the administrators had for that idea should have been a wake up call that something new needed to happen. And unfortunately, here we are years later, and the same impulses that led those agencies to try to force a bar exam on people during a pandemic are still there, and they nearly killed somebody. Or not – they didn't nearly kill somebody, but they nearly created – they nearly had the conditions where somebody who had a medical emergency died. How about that? I'm just begging with people to start considering other ways in which we could handle law licensing that might be a little bit more, you know, modern.

12:56Man, I wish after you go to the specialized school and pay your six figures, get your six figures of debt, that you're ready then. Yeah. I remember when that was part of the discussion. Like, I mean, that wasn't the biggest part. A lot of it being like the public privilege or what have you. But I wish that the conversation about readiness and assessment for the task at hand was focused on the schooling process and not this cash grab, all the cash grab that happens afterward. Well, and that's an excellent point. That's really the issue here is that the bar exam exists largely to enable gross levels of student exploitation.

13:37Because if we had a system by which – a diploma privilege system like they have in states like Wisconsin, if we had a system where we had strict standards upon law schools such that anyone who graduated from that law school is presumptively capable of being a licensed attorney, then those law schools wouldn't – there might be people that they couldn't – I mean, good law schools, whatever, but bad law schools might not be able to exist and bring in people who are not capable of passing the bar exam, but they extract a couple hundred grand from them as a school and then set them loose, and then that school has a terrible bar passage rate.

14:24They use that test as a barrier so that the school can collect cash and the person gets taken advantage of. And that's a problem. And if we had a system where the law schools themselves were held to a higher standard and the kind of diploma mill schools weren't allowed to exist and we were able to say that anyone who graduated from those schools has met certain standards, maybe there are other tests that have to be taken. The ethics test and stuff like that may still be necessary for other reasons. But you could have a system like that that would make the whole industry better off. But we don't, and nor do we have necessarily anybody in a position to do that sort of standard setting and accreditation because the theory would be that would be the ABA, and we're in the middle of trying to take away their right to accredit in several states with Florida this last week saying that they were – the Florida attorney general launching war on the ABA saying that they shouldn't be allowed to accredit law schools now.

15:26So it's going to get worse is basically the takeaway. All right. Well, on that happy note, I guess we've been on this topic for a little bit. So let's take a break and be right back.

15:43That's my impression of the hold music your callers hear right before they hang up. Smith AI pairs AI with real live agents to answer calls, qualify leads, book consultations, and even send retainers 24-7. Better intake, fewer missed opportunities. No more hold music solos. Try it free at smith.ai. Mention above the law or use code NOHOLD at sign up to claim 20 % off your first two months of service. all right so let's have a meme conversation uh let's talk about the most entertaining meme of the summer the cold play concert most entertaining so far and i said it's a high barrier to jump so of all the embarrassing things to get caught doing one listening to cold play two in public like i'll admit they have a couple bangers i sang uh viva la vida karaoke a couple weeks ago okay And yes, I did check to see that there were no cameras around, you know, but you got to know when and where to tango with who to tango with.

16:46But yeah, so there was a Coldplay concert. There are a bunch of people in attendance, maybe even some couples, maybe even some couples that shouldn't be together. That's all expected of a concert. But what happened was there was a basically a jumbotron that zeroed in on two people and looked like a guy was giving a woman a Heimlich maneuver. But it was actually infidelity. but the thing is the thing is their response was so terrible like she like did an about face and hit her shame like literally covered her eyes and then the guy dove like his platoon was about to get killed with by a grenade like and it was the dumbest way to respond to getting caught because before then they could have just played it off you know you know just whatever so things happen the it was the ceo of astronomer i want to say he steps down he was um heimlicking the hr head which is like the best and the best example of hr is there for the company not for you like if you needed it right i actually saw that there was a labor union in the uk i think uh who used that picture to make that exact argument if you think if you think your boss is closer to hr or do you think HR is closer to your boss than you than dot dot dot.

18:03There are times when reality is beyond parody. That's one of them. Obviously dumb. Former astronomer CEO decides to make it worse by telling people that he was, allegedly telling people that he was thinking about suing Coldplay after this. Aww. And it's one of those things where it's like he'd probably have a better job mining the moon. Like it's, there's no real legal theory there. Well, right. So in your piece, you make the point that so there's not a reasonable expectation of privacy at that concert. There's probably a license on the owning of the ticket that you may be photographed. Right.

18:42I don't even know. I doubt Coldplay controls the cameras at any point either. I think he made an argument about defamation. Right. He was like, I think it's Chris. Is it Chris Martin? Because Chris Martin, yeah, because Chris Martin said something. They're either committing infidelity or they're very camera shy. Right. And it's one of those great instances of logic where all it takes is one prong for it to be true. Well, and truth being a defense to defamation is a very strong answer. I just imagine he'll be drunk at a bar on the radio. I hear parishioner bells are ringing and be like, oh. Well, and that's the thing.

19:30Like, so when, you know, we also – Hulk Hogan just died, so this is somewhat timely. So the argument that – I'm sure he's looking up smiling. The argument that Hulk Hogan was the avatar for Peter Thiel's attempt to take down Gawker was that the video that Gawker showed, which was obviously true to the extent that truth is a defense. but they argued that it was a privacy infringement. Why that would be a claim against Gawker was always somewhat suspect as opposed to the person who actually captured the video, but whatever, it killed the company. Meanwhile, though, so converting these sorts of defamation claims into privacy claims is kind of the way around that always, but like you said, there's just no good argument that that's what's happening here.

20:22to the extent Chris Martin brought more attention to it by talking about it. The attention was already there. I mean, they were already being goofed on by the Philly fanatic like the next day, right? So the damage is done. I just imagine there was some creative lawyer that was like, oh no, since they bought their tickets in the nosebleeds, they were so high up. No one could reasonably expect to be seen on the Jumbotron. Yeah, why is the CEO of a company up in the nosebleeds? Wait a while. To be fair, I'm not sure if he was. Yeah, that might have been a box. If he was, you got the money, man. Come on.

20:58Yeah. I mean, well, he had the money. Who knows? Yeah, right. It is a good example, though, put aside anything else, of a good lesson for a client out there. Sometimes if you just play it cool, you might be okay. Had they not reacted by freaking out, but instead just kind of like stood the ground and let it go? My guess is the worst that would have happened is somebody might have come up and said, hey, I saw some people who looked almost like you. Yeah. Oh, well. You think they cover infidelity in HR documents. Yeah. Well, especially because now that the way this administration is going, it's not like HR has to handle discrimination or anything like that anymore.

21:44So now they really should just focus on the infidelity stuff, right? Yeah. Everything's on fire. uh well okay so let's take a break and come back with another topic alan dershowitz needs pierogies and unfortunately he's not getting them well that's the show we'll see you next week

22:09so former harvard you know harvard law emeritus professor alan dershowitz has been complaining. I think I did the math. I think it's been like seven years since I first wrote seven or eight years since I first wrote an article about him complaining that no one likes him on Martha's Vineyard where he summers. Everyone has stopped inviting him to parties. He's threatened to sue the library over not inviting him to speak at their events anymore. Are you talking about Alan Dershowitz or Drake? oh oh yeah no new friends no new friends so he's been complaining about this every year it's an annual tradition this year his new argument is that the food vendor at the uh farmer's market who sells pierogies he went and asked for a pierogi and the vendor was like i'm not selling to you.

23:06Now, usually you would say that they reserve the right to refuse service to anyone, which is not an absolute right like there are at the point that you enter the stream of commerce. There are certain discrimination related reasons why you can't do that to anyone on a whim. For now. But one of those protected classes is not because you don't like the guy's politics. And so there's not really a reason why this would be a problem, but Dershowitz has responded to it by saying that he's going to sue while he's petitioning the farmer's market to kick the vendor out or something like that. But then he's willing to sue the vendor and the farmer's market for denying him service.

23:53It's one of those things where you read it and you're like, they're trying to make pierogies the new cakes. Yeah. Well, and that is a good point. Like, why is it that we – why is it that you can prevent gay people from having cakes, but you can't – but you – but, you know, Dershowitz is entitled to a pierogi. And the argument that they – that some would make the most cynical and disingenuous out there is that, well, a cake involves art, and that just seems like violence to pierogies everywhere, which is also an art form. but yeah no it apparently according to what we've seen Dershowitz then tried to talk to some other some other vendors about it uh and the police eventually told him to stop uh he's also mad that the police took the vendors side uh which they did because you know the vendors are right but Dershowitz is out to get that and just like man I get that like this is what this is why people don't like lawyers right hey don't put this on lawyers this is squirrelly Alan Dershowitz well that's fair but I am happy to punch down on the profession but there are sometimes people are exceptionally bad this is one of them there are many lawyers that after defending like mass murderers or even worse finance bros are still able to get fast fast food like this is a special flavor of cursed i guess i'm just saying my point is more that uh you're right absolutely i guess my point is more like it's this sort of behavior that make that gives lawyers a bad name how about i put it that way well i just don't understand why he keeps going entitlement yeah entitlement were there no other vendors that he need a pierogi like and i just i just don't understand why he continues to go back to martha's vineyard if he's so unloved there i mean there's other places to vacation where they wouldn't have uh where you know they're not gonna care that you're a big trump supporter like like the floribama or something yeah yeah right yeah yeah i mean and if if he likes island stuff I know he used to know a guy who owned his own island.

26:14I don't know whatever happened to that guy. But whoa. I'm sure he has a Ouija board. He can get permission. I mean, yeah. Well, so, yeah. Oh, yeah. Well, anyway. So I think that's pretty much everything we had for this week, unless there's any other Epstein-related jokes we can get in to this conversation. No, I think those would be a little premature. Sure. All right. With that said, thanks for listening this week. You should be subscribed to the show to get new episodes when they come out. You should leave reviews, write things, all that sort of stuff. You should be reading above the law. So you read these and other stories that we talk about before we talk about them here.

26:59So you can be, you know, you've done your homework. You should be listening to other shows. Catherine's the host on the Jabot. I'm a guest on the Legal Tech Week Journalist Roundtable. There are other programs by the Legal Talk Network to check out. You should be following on social media. I'm at Joe Patrice on Blue Sky. Chris is at Rights for Rent. The publication is at AboveLaw.com. And that is everything. Enjoy your pierogies.

27:40Thank you.