This Is Why We Have Bar Exams

7:37Elie Mystal:And I don't think she needs it. And I think she's done enough to prove that she has her moral compass in the right place. So why don't she why don't you just do that? But whatever. That's not really the story from this week. The story from this week, though, is that there was a op-ed in The Washington Post by Max Raskin from NYU who made the argument that the bar exam failed Kim Kardashian, which, you know.

8:04Joe Patrice:No, she failed the bar exam. Well, you know, I know.

8:07Elie Mystal:See, that's the thing. It's a whole like flipparoo. No, she literally failed.

8:10Joe Patrice:Yeah, it's a flipparoo.

8:12Elie Mystal:So the argument that he makes is that the bar exam failed her. Okay. And look, I'm ready, willing and able to say the bar exam is a bad relic that needs to be majorly reformed.

8:26Joe Patrice:You have spilled quite a bit of digital ink making that exact point.

8:30Elie Mystal:I have. But this op-ed forces me into the uncomfortable position of explaining that actually this is why bar exams are good. Yeah. Or at least not the current bar exam, but some form of bar exam. His argument is a very kind of libertarian position that we shouldn't have professional licensing for lawyers. I disagree. I think that professional licensing is very important, especially because the legal industry is one that can – having somebody who's not competent can absolutely screw up people's lives.

9:02Joe Patrice:Sure. If you don't have a good lawyer and you're in the middle of a custody battle, your relationship with your child is forever altered.

9:11Elie Mystal:Right. Well, and I'm glad that you mentioned that because that's the issue. We often talk about the criminal context for obvious reasons. And if you get the wrong lawyer there and you end up on death row, we have mechanisms. And the op-ed kind of mentions that there are these mechanisms. It glides over the fact that most of these mechanisms result in judges going shrug emoji. But we have at least have some lip service towards mechanisms to say that you can challenge what happened to you based on having ineffective assistance of counsel. But again, most of the time the courts ignore that and don't care.

9:54Elie Mystal:But we really don't have a mechanism that is robust enough to deal with the situation where you had a bad lawyer and it meant that you signed away your rights to know your child or something like that. or you screwed up your divorce when you were trying to get out of an abusive situation, and now you're like – Destitute because you're not getting – Destitute, right?

10:13Joe Patrice:Yeah, you did what you're right to, whatever.

10:15Elie Mystal:And there's no – like Yelp reviews don't get around that, libertarians. Like you can't just assume that everybody is going to like eventually it will all shake out and people will know who the good and bad lawyers are because somebody suffers. That's how we get the bad review. Right. Right?

10:32Joe Patrice:Right. Yeah. Yeah, I think that's very true. But there is an interesting aspect to licensing and professional boards and whatnot. And I'm reminded of an episode of the Jabot podcast that I also hosted I did with Rebecca Haw Allensworth, who wrote the licensing racket all about the question of licensing. And she looks at it from a bunch of different professions, barbers, lawyers, doctors, and sort of has a range of suggestions and kind of what it's about. And in some instances, it's super problematic. And what are the benefits and these sort of licenses that are meant to protect the public sometimes can actually hurt the public if they're too kind of self-dealing and propriety and whatever.

11:11Joe Patrice:There's lots of issues. You should definitely read the book or at least listen to the podcast episode if you're interested in this. But I think that using Kim Kardashian as the example, well, just because I'm rich, I get to call myself a lawyer because I want to be a lawyer is very much not what the world needs in 2025.

11:30Elie Mystal:You know, I really I really wonder about that. I think, you know, lawyers don't get the best rap for the profession. You know, I haven't heard many. What's it? What do you call a thousand firefighters at the bottom of a motion? A good start joke. But just given like the cult of personality that she has and popularity, her being a lawyer, even if she's not a particularly good one for her own sake, just someone in the public eye that is positing that is a worthy career worth fighting for. even if it takes years of setbacks, could be spun as a really good underdog story, even if she is a wildly popular millionaire, if not billionaire at some point, with bunches of businesses.

12:14Elie Mystal:One of the things that happened, some of the inside, the making of the sausage, once Joe sent out that story bashing the Kardashian, he got some hate mail. and one of the writers was like kim is actually doing xyz she's doing all this good for the industry for people so i think it is easy to like um like pile on be like ha ha this dumb lady should have you know should just spend her money elsewhere but in the world of like all the other things that millionaires are doing with their spare time i feel a little weird about piling on the kardashian yeah no and i actually we went back forth that reader and we ultimately came to pretty much agree on this, that I didn't want to be in a situation where I was suggesting that it's, you know, that, you know, it's bad that she, you know, cares about these issues.

13:05Elie Mystal:In fact, I'm going quite the opposite. I think that her being the front of an organization that funds public interest lawyers working on these issues is the best use possible use case for her right now. So that said, I think I've long said that we need to engage in something more like a diploma privilege order where if you've gone to three years of – if we're going to have three years of expensive law school, at the end of it, you should be able to go be a lawyer. Maybe with some character and fitness filters or something like that, but you should be able to go do that. It is ridiculous that we have a system where schools can collect a few hundred thousand dollars from somebody and then go, and, you know, good luck seeing if you can pass this other test that we don't control.

13:53Joe Patrice:And barely prepared you for.

13:55Elie Mystal:And see it that will allow you to work. That just shouldn't be. We should have a diploma privilege system, and we should therefore use that to be more robust about accreditation. Obviously, we're in a situation, Chris has written about this recently, where accreditation is even up in the air as the federal government engages in a war on the ABA. But we should have a world – the ABA more or less says if you're kind of okay at teaching law, you get to be accredited. We should have a world where there are more harsh standards for being an accredited law school, but the flip side is once you're out, you get a license.

14:29Elie Mystal:but then and this is the part that caused some of the tension in the reader conversation that we had but that we've resolved is i could say and some people do say that diploma privilege is all there should be and that's the only way you get to be a lawyer i don't think that's necessarily good i think it is useful to have alternative pathways to the legal profession uh and that said if you're going to have an alternative pathway like an apprentice-based pathway to the legal profession, you need a test. It shouldn't be this bar exam with all of its memorization, generalist nonsense that it is, but there needs to be some sort of test because we can't deal with the inevitable inconsistencies of apprenticeship.

15:15Elie Mystal:You can't say that one apprenticeship versus another are both getting the exact same kind of education. We don't have the ability to monitor all of those experiences. So if you accomplish that pathway, there needs to be something at the end that allows us to go to replace the law school that we have some control over and say, oh yes, this person did learn all the things that needed to be known. And so even though it's not the existing bar exam, she is, in fact, an argument for some kind of a test. Yeah. I do think just at the level of optics, It is an interesting framing of, oh, God, she's going to make me defend the bar exam rather than the bar exam didn't fail Kim Kardashian.

15:59Elie Mystal:Her apprenticeship did or the bar exam didn't fail Kim Kardashian. It was Chad GPT and the mystics that she hired, you know, the psychics. Yeah. Yeah. I do think there was a different way that it could have been approached. I don't think your approach was bad per se, but there were some tradeoffs that happened. Yeah, I mean I feel like the approach of this op-ed was very – I mean this person's – the author's like niche work is in stuff like digital currencies and crypto and all that sort of thing. So it was a very tech libertarian kind of worldview, which I think is problematic and that there needs to be something.

16:40Elie Mystal:I will not be made to defend tech libertarians, begrudgingly or not. Let that be clear. And I don't know if we talked about it on this show or not, but I also wrote a while back, Utah has a new program that they're working on where they're going to create their own test to not be the bar exam for this kind of a pathway. So for people who don't go the normal route, they want to have a test for them. But their mission with drafting this test is it needs to be something that if you were to give it to a veteran practitioner today, they would not even have to study and would still pass it. The logic being if you think that the test is there to test the minimum competency to be a practicing lawyer, then it should very much be something that a normal person would have to learn for, but a veteran would never have a reason to.

17:33Joe Patrice:You're not going to have a Kathleen Sullivan situation.

17:35Elie Mystal:Exactly, and that's what I think – and Catherine is referring to when the dean of Stanford tried to take the California bar despite being one of the most famous Supreme Court litigators. And licensed in other jurisdictions. And licensed in other jurisdictions, failed the California bar. That should not happen. And Utah's working on a way to avoid that. And I think that's the model that should exist. And that's the kind of test that Kim should be taking once she completes her course, you know, like she has. So anyway, that's all that. We've talked about this now for a while, but I do think it was our most interesting issue of the week, probably.

18:11Elie Mystal:So let's take a break and come back in a moment.

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19:51Elie Mystal:All right, well, let's talk, let's change gears and talk about, Catherine, you had a story about the Deputy Attorney General. This is Todd Blanche, who has already said that, told people to go to war with federal judges. So not exactly winning.

20:07Joe Patrice:Not holding the line on the rule of law.

20:10Elie Mystal:Winning hearts and minds for those of us who love the rule of law. He has another comment.

20:15Joe Patrice:Yeah, he spoke to a bunch of white collar attorneys at a conference on the Foreign Corruption Practice of Foreign Corrupted Practices Act. Fair enough. Well, when you went, did the deputy attorney general say that he would notice what attorneys are saying and how it compares to how they're advocating behind closed doors? He was.

20:38Elie Mystal:No, because when I went, we lived in a normal society.

20:42Joe Patrice:Yeah. Yeah. But he specifically said that if that if attorneys are posting on LinkedIn or writing client alerts that says that the Trump administration is not prioritizing white collar enforcement, they're going to take notice, which is pretty chilling. and it very much gives, we don't want you talking about what we're doing in the white collar space because we might twist it to read poorly against your clients in the future, which is absolutely what he's saying here. And I mean, listen, I think that, you know, certainly you don't want attorneys who are arguing sort of both sides of a coin, but that's not what's happening here.

21:25Joe Patrice:A client alert is just factually, enforcement is down. There have been fewer cases brought under the FCPA in 2025 than in previous years. That is just a factual thing that is true and has nothing to do with what a lawyer may or may not advocate on behalf of their client to the Justice Department. So it's very clear that they just don't want people talking about what they're doing in the white collar space and using this kind of will take notice. And we know what you're arguing to your clients and how you're dealing with them. And I think it's it's super, super chilling. And, you know, also factually, early in the Trump administration, he suspended the enforcement of the FCPA and eventually rewrote the guidelines, most of which talk about how we can't unduly burden businesses, you know, unless we decide that we don't like something going on there.

22:27Joe Patrice:And then we will absolutely start enforcing the FCPA. it's moments like this where i think that every dead french continental thinker that said

22:37Elie Mystal:facts aren't neutral got laughed at it just pop locking in their graves like i told you so i told you so yeah yeah speaking of graves this is another one of those stories that i don't think can sustain a whole topic but uh is kind of small talky from last week but since you since you brought up graves and Catherine's talking about the conservative legal movement uh last week also the conservative legal movement got really up in their own heads about how we should dig up William O. Douglas's body oh yeah perhaps you've missed the plot friends yeah we're in the um we're in the exhuming phase of owning the libs yeah yeah also I don't think what a time to be alive or dead even but um this was also a thing I saw I think there was like a large swath of like black veterans whose graves got i feel it feels like secularly unhollowed is what's happening like this feels like it's like getting kicked off the church premises that one was quite a journey so william o douglas obviously a something a hero in the liberal the great civil libertarian kind of movement of like a member of the warren court who you know was very adamant about you know griswold the author of griswold stuff like that uh so there was a years ago there was a biography of him that suggested he lied about his military service and he's buried in Arlington.

24:00Elie Mystal:And there was that got people all worked up of we should dig up his body now. It turns out he he did not lie about his military service that has been confirmed. But, you know, facts back to the back to the fact neutral issue. French continental folks can can enjoy that, too. So, yeah, no, he they're they're trying to dig up a body. So, hey, exciting times. No, it's really chilling, though. Back to your point to suggest that. And it's also it's also dumb because it is entirely consistent to say you should be enforcing this against more people. But my client is not one of those situations. I mean, take it to its logical extreme.

24:43Elie Mystal:It's like, I don't understand you people who say that your client didn't commit a murder and yet you want laws against murder.

24:49Joe Patrice:how interesting yeah this is going further than just trying to insulate it's themselves from criticism it's trying to protect trying to create a world where that criticism doesn't exist and it's it's deeply problematic yeah and and it's not a big story you know that a lot of people in the legal space are talking about right now i mean some people are but it's not sort of these huge stories that included the next one we'll talk about in the in the next segment because there's so much other shit going on. These kind of low key threats aren't getting the sort of attention that they would in almost any other administration because there's so much other things out there.

25:28Elie Mystal:Yeah. I'd also like to say isn't that big of a problem because if you make enough money during your white collar crime and get prosecuted or what have you, you can just ask Trump to pardon you. Yeah, that is true. There is a it seems to work. So anyway, well, let's take a break here and come back for our final topic. So our final topic of the week, we talked last week about Lindsey Halligan managing to lose a bunch of cases because that's the insurance lawyer that claimed to be the interim U.S. attorney for Eastern District of Virginia. She was pursuing the Comey and Letitia James cases on behalf of the government.

26:09Elie Mystal:The Comey case getting both of them got tossed out because she isn't legally in that job. That said, the government still has her signing documents. Apparently, the official word from Todd Blanchon down is we are going to take the position. She is legally there.

26:26Joe Patrice:And even if the courts don't even if everything gets thrown out.

26:29Elie Mystal:Yeah, well, no. So what they're doing is now having like him or somebody like him sign the documents, too, so they won't get thrown out. But they're not taking her off as kind of a protest that they want her to keep pretending that she's in charge. Anyway, whatever. So those cases got kicked out. The Comey case should be time barred. We'll see how that gets gets handled. The James case, they attempted to reindict. Got a no bill from the grand jury. So that's theoretically dead, at least for the time being. While all this is going on, Halligan was confronted by, to the extent that she's doing these questionably proper things, an organization wrote a letter to the Florida and Virginia bars, both of which are relevant to her, asking, you should probably begin an ethics violation here.

27:18Elie Mystal:And the Virginia State Bar wrote back, and this is what we wrote about this week, a very troubling response from a state bar, which was, I don't know why we why would you look at us to enforce, I don't know, ethics

27:33Joe Patrice:in our someone who is barred here for someone in our jurisdiction.

27:38Elie Mystal:Like in their defense, they in their letters say that the question of whether or not she is legally the interim should be decided by the courts, not by them. And so they're going to defer.

27:49Joe Patrice:It is.

27:50Elie Mystal:Which fair enough. Well, they wrote it before that decision came down. So fair. The problem is many of the other ethics claim allegations brought in the initial letter have nothing to do with the actual case. Right. Like they have more to do with other stuff that she was busy, has been busy doing. For instance, Halligan is the one who engaged in a signal exchange with journalist Anna Bauer from our friends over at Lawfare. She started talking to Anna, trying to get Anna to agree to her, to Halligan's version of these cases, purporting, at least it seems, purporting to say that she was giving sensitive non-public information to Bauer in order to influence Bauer's narrative about the case.

28:39Elie Mystal:This is an extrajudicial statement about an ongoing criminal case in Halligan's mind, theoretically by giving over evidence that isn't public. This has nothing to do with whether or not Halligan is legally the interim U.S. attorney. This has everything to do with stuff that a state bar should be looking into. and to shrug it off by saying, oh, well, the question of interim, this letter is much more detailed than that and raises many more disturbing ethical charges than that. And whether or not they're true, they are definitely something that a state bar should be looking into. And the fact that the Virginia State Bar's approach to this is the shrug emoji is problematic.

29:21Elie Mystal:And I think it's problematic in one of two ways, both of which are bad. It is either problematic because they are literally that lazy and don't care about ethical problems in their under their nose, which is bad, or they're terrified of Trump administration retaliation and therefore have decided they're not going to look into ethical allegations, which is also very, very bad.

29:43Joe Patrice:Yeah, yeah. I don't know which it is, but it's not great.

29:47Elie Mystal:Yeah, no. And now look, we don't know. Obviously, this letter was sent the week before the decision came down about interim status. So perhaps they have decided to open an investigation now. I am somewhat skeptical of this because there was no reason to write this letter if that was your stance. Because if your stance was, we'll wait to the decision. It wasn't like anybody thought Judge Curry was just going to—

30:13Joe Patrice:They didn't have a deadline to write this letter.

30:15Elie Mystal:Yeah, it wasn't like anybody thought the judge wasn't going to resolve this issue somewhat swiftly. you would be around for a couple of weeks at worst yeah so anyway

30:25Joe Patrice:just more fodder for the hillscape

30:27Elie Mystal:it is alright well I think that's it for today thanks everybody for listening you should subscribe to the show to get new episodes when they come out you should leave reviews, stars, write things helps the Golden Globes, the Hollywood Foreign Press or whoever does those these days understand who we are you should be listening to the Jbo, Catherine's other podcast which she mentioned on the show already You should check out the Legal Tech Week Journalist Roundtable, which I'm a panelist on. There's also a bunch of shows that the Legal Talk Network does that you should be listening to. You read Above the Law.

31:00Elie Mystal:Read these stories and others before we talk about them here. Follow on social media, abovelaw.com, abovelaw.com on Blue Sky. I'm at Joe Patrice. She's at Catherine One. Chris is at Rights for Rent. And with all that, we will talk to you again next week.

31:15Joe Patrice:Peace.

31:15Elie Mystal:Peace. Thank you.