Opposition to ‘Diploma Privilege’ for Law School Graduates; Defense of Bar Exam Requirement
August 24, 2020
To the Judges of the Court of Appeals
I write to vigorously oppose the proposal for so-called “Diploma Privilege” for admission to the Bar now before the Court.
I have been a member of the Maryland Bar for 56 years and have been President of the Library Company of the Baltimore Bar for the last 16 years. I served as Law Clerk to Chief Judge Brune of the Court of Appeals 1n 1963-64, as Executive Assistant to Governor Hughes in 1979-80, as reporter for or chairman of various gubernatorial study commissions, as Chairman of the Section of Judicial Administration of the Maryland State Bar Association, as a past member of the Commission to Revise the Annotated Code, and as the author of four volumes on Maryland Practice and Procedure published by the West Publishing Company.
I am not in the habit of commenting on rules proposals. I last did so, along with Henry Lord and James Astrachan of the Baltimore Bar about seven years ago, when we complained of delays in rendering decisions by the Court of Appeals and what we saw as politicization of the former Maryland Professionalism Center. The Court responded with admirable alacrity on both these issues.
The current proposal is of at least as great significance. I oppose it for the following reasons:
1. The proposal transfers control over Bar qualifications to law schools that have a pecuniary interest in the non-maintenance of standards. It is not so long ago that the retiring dean of one of our local law schools alleged that law schools were being treated by their universities as ‘cash cows” to support other functions. Few students are dismissed from or fail to graduate from law schools.
2. The Bar examination serves an important pedagogical purpose, requiring intensive study and review of the previous three years’ work.
3. The Bar exam provides an at least minimal assurance that those passing it are sufficiently literate and knowledgeable to provide prompt and accurate responses to new and unexpected legal problems
4. Failure to give this year’s examination will render it impossible to revive an examination requirement. Those failing future examinations will find it hard to understand why those who have been excused from passing them are allowed to practice while they are not.
5. Removal of the Bar exam will eliminate the most significant way in which applicants can assess the merits of law schools by removing published passing rates. Since law schools are also eliminating the LSAT test as a requirement for applicants, the reputation of law schools will rest on no objective measure but on the vagaries of paid advertising and public relations.
6. The Bar exam operates as a check on the fragmentation of law school curricula in response to faculty demands by assuring that important parts of the course will be devoted to core rather than exotic subjects.
7. Waiving the requirement of an exam this fall will not accelerate the ability of those excused to earn a living at the Bar, since the remaining hurdles, those mostly perfunctory, will consume as much time as the administration and grading of the exam.
I view with astonishment some of the arguments made in favor of the proposal, such as those invoking the “Housing and food vulnerabilities of many recent graduates.” Those completing a three-year law course are not dwellers in homeless shelters or tent cities, nor the “prisoners of starvation” celebrated in the Internationale. The law schools, and, if necessary, the library over which I preside have ample spaces for study.
The invocation of the ‘race card’ : undocumented “potential racial bias in artificial intelligence used to monitor” is reprehensible. Too many distinguished minority lawyers and judges have cleared much greater hurdles than a monitored remote exam.
Some legislators have joined in the demand, though others to their credit have not. I am reminded of H.L.Mencken’s observation that if there were a significant number of cannibals in the electorate, some politicians would urge that they be given regular meals of grilled missionary.
Maintenance of minimal standards for a learned profession requires rejection of this scheme and support for the wise decision of the Board of Law Examiners.
Respectfully yours,
George W. Liebmann
Posted in: Culture Wars, Judiciary and Legal Issues, State and Local Politics