There's a little scandal brewing in South Carolina over the state Supreme Court's decision to eliminate the results from one question, allowing several people to pass who would otherwise have failed, including the daughter of a influential local pol. Louisville Dean Jim Chen has been on the case. He provides background and links here, and an update here.
UPDATE: Jim Chen has still more:
Legal professionals, in South Carolina and the rest of the nation, have every reason to question the Supreme Court's decision to mint 20 new lawyers who, by every account, flunked South Carolina's July 2007 bar exam. They have reason to doubt the high court's outlandishly illogical explanation. This sort of thing has happened before; now it is being reinstitutionalized anew. Not Very Bright's timeline leaves no room for doubt: this was a hamfisted, naked power play by South Carolina's judiciary, carried out at the expense of that state's bar and larger public. Yet, like many observers who are far closer to South Carolina than I am, I too expect this scandal to fade from public view as attention turns to Thanksgiving and this weekend's Clemson-Carolina football game. Panem et circenses, indeed.The simple explanation is, as usual, correct and complete. South Carolina's lawyers, by my informal survey, are horrified by the Supreme Court's abuse of power. They rue how this episode will resonate for years, even decades, as yet another generation of South Carolinians learns that power, not prowess, that pedigree, not performance, holds the key to success. They cringe at the thought of outsiders consigning this most quintessentially Southern of Southern states to perpetual cultural irrelevance in the American pageant.
How many of the 20 retroactively admitted students are actually going to practice in the area of Wills, Trusts, and Estates? Why will my bar exam have questions about criminal procedure when I never want to be involved in a criminal case in my life? Why, although law is becoming an increasingly specialized profession, do we still have one big general bar examination?
The exam is just a barrier to entry. That these folks passed the exam with just one more passing section means that they meet some objective level for smarts and legal knowledge. Allowing them entry to the bar isn't a travesty, it's more of step in the right direction.
I disagree with Adler that we have too few lawyers: I think we have too many, and that the requirements for bar passage should be sharply tightened. In my opinion, with tighter bar requirements we would never have seen the Nifong situation, or to many other victims of poor lawyering.
Asking applicants to learn a few pages of basic Wills is hardly onerous.
Even if one buys your logic (which I don't) there's still an issue as to why they chose to waive this particular question and not some other question, or all questions. If waiving this specific question results in children of influential local politicians passing the bar, but waiving some other question does not, and there's some evidence the two are connected, that's something that needs to be looked at, regardless of whether one considers the bar exam a mere "barrier to entry." In other words, even if it is just a barrier to entry, it's still improper for it to be applied selectively and post hoc in order to benefit a handful of influential applicants.
I fail to see how tighter bar exam requirements would have changed anything in the Duke Lacrosse case. Seligmann, Finnerty and Evans were victims of Nifong's poor ethics, not bad lawyering. A stricter bar exam isn't going to help raise lawyers ethical standards.
Of course there is another way to analyze this. If the Bar Examiners' original scoring as to this person had erroneously failed him would the Supremes have made an exception to the rule and corrected the error in order to admit him? Is so, why not simply correct this error and re-notify him?
Passing the Bar for lawyers is like paying taxes for everyone else. We all had to do it and by gosh the next guy or gal ought to do it too.
I took and passed the Bar Exam 32 years ago, and this last July I took and passed the Wyoming Bar Exam because Wyoming does not have reciprocity with my state. Most old f---- like me don't relish the idea of taking another Bar Exam and during my 2 months of study I found that a lot had changed. And of course, much of the Exam was on stuff I've never needed and never will. So what? That's the drill, I did it, I feel good about it. Now, if I had failed......well, I hope I'd think the same way.
I would note that stricter applications of the ethical standards might. And I don't mean on the front end (ie., character and fitness review of bar exam) I mean on the other end, sanctioning attorneys who play fast and loose with the rules.
The first two times the ethics exam was required were the February 1975 and July 1975 bar exams. The questions properly asked what an attorney could do in a dicey situation, but the required answers were what an attorney should do. I.e., legally accurate responses to the questions resulted in failing grades.
I had worked for the SEC's Enforcement Division during my third year at Hastings (1974-75), and one of my jobs was investigation of a crooked attorney. I knew very well what an attorney could and couldn't get away with. So I passed the general bar exam in July 1975 and failed the ethics exam.
There was a threatened lawsuit over this screwup as hundreds of recent graduates were in my position, but nothing ever came of it. The bar examiners promised to revise the required answers to future exams so those would conform to the law.
We all retook the Ethics exam in February 1976, gave the same answers to approximately the same questions, passed and began our legal practice.
I have never since given the California State Bar a dime I didn't have to, and never will.
BTW, Chen fully disclosed he was passed over for dean for the University of South Carolina.
I didn't accuse Chen of failing to disclose anything. I simply wondered to what extent his opinion was colored by the fact that he was passed over as dean. Some of his comments regarding the situation could be interpreted as bigoted towards South Carolina.
Jim Chen
And when the Chairman of the House Judiciary Committee says "****" they do.
As I understand it, this is what happened:
1. One test taker had flunked the Wills, Trusts and Estates (WTE) section of the bar exam, but his score was misreported and he was given a passing grade.
2. The Supreme Court thought it inappropriate to de-pass the applicant ("it would be inappropriate to reverse the affected examinee's[2] previous notification of successful completion of the examination. See Rule 402(i)(5) ("The results reported by the Board of Law Examiners is final…”).
3. To do this, the court decided that the WTE part of the exam should be ignored.
4. Having decided to do this for the one applicant, the court had to do it for all.This seems to be the weak point of the reasoning, since the others had not had there scores misreported. However, letting in similarly situated applicants doesn't strike me as exactly the end of the world.
5. Thus, 20 people who had failed the exam because they failed the WTE section now passed the exam.
While the court's reasoning is weak, it is not, to me, a "scandal" unless it was the product, as some have suggested, of improper influence. Certainly this result will have no measurable impact on the quality of the practice of law in S.C., as the 20 new lawyers were obviously very close to passing anyway.
And CDU, you must not be aware of the first commandment of The VC - it's always about the Duke case. ALWAYS.
Jim Chen
Louisville, Kentucky
Jim Chen
Aren't you being more than a little unfair to Catherina Harrison, in the absence of any evidence that her father played any role in the grade changes, much less any evidence that she had anything to do with it?
There is, apparently, no evidence that the identities of those whose failures would change to passes were known to the Court. Thus, at present there is reason to wonder but no actual scandal. There is, similarly, no evidence that any of the candidates or their fathers exerted any improper influence.
Prohibited Contacts. An applicant shall not, either directly or through an agent, contact any member or associate member of the Board of Law Examiners or any member of the Supreme Court regarding the questions on any section of the Bar Examination, grading procedures, or an applicant's answers. This provision does not prohibit an applicant from seeking verification of the MBE score as permitted by (6) above.
Catherine's dad, by his own admission, contacted the Board. Seems like a clear violation of the rule to me.
I don't see in any of the linked articles any information as to the nature of the contact between Harrison's father and the Examiners or the Supreme Court. How do you know that the contact was of the prohibited type as opposed, say, to a request for confirmation of the grade? In any case, if he did violate the rule, that doesn't mean he did so as his daughter's agent.
I agree with John: the weak part of the logic was deciding to scrap the section and pass the other students. (I am pretty sure Harrison was in the latter group; it was someone else whose failure was misreported as passage.) If the proper authority tells you that you have passed, then you have passed. But why does anyone else get a break? Someone on another board compared this to a bank accidentally depositing $1000 in one depositor's account, then deciding the best was to handle the situation was to leave that money where it had gone and make a similar deposit in several other depositors' accounts.
If the system was open and all applicants could challenge the grading of their exams (heck, if they could actually see the grading, rather than just get a "you passed/you failed" notice), then we wouldn't be wondering about whether these applicants got special treatment... there would be a normal, open process which all mistreated applicants could follow.
Remember, that's the basis of the possibility that these 2 kids got special treatment: not that the court's action was objectively unfair or unsupportable, but that non-connected applicants would never have been able to get the court to even consider taking any action, because according to the rules, no action can be taken.
That's not correct. Kendall Burch sent an email that noted that her dad and Catherine's dad were planning on taking it up with the Supreme Court personally.
See the Not Very Bright Timeline, October 30, 2007.
Sad that the first reaction to a story like this is to blame the messenger.
I took the bar and studied 12 hours a day for 6 weeks (no BarBri or anything like that, didn't need it) and passed my first time out. I think it is the pinnacle of lunacy to compound the error by admitting 20 other people as a result of an error that should have only wound up benefitting one person.
Disclosure: I shot a 108 at a golf course in South Carolina in 1998 and I am still mad about it. (I think that has as much effect on my opinion as Mr. Chen not landing that job)
The South Caroline Supreme Court did a reasonable thing.
It would have been very messed up to inform someone they passed, and then later try to take that back.
But, it does not seem fair that people in the exact same position as this person would fail, while he passed.
Perhaps the bar examiners should have been even more aggressive, and allowed people to fail any two sections, rather than just Wills, Trusts and Estates.
Overall, bar exams are not all that great as a tool to separate people who should practice law from those who should not. The bar is not so much an exercise that demonstrates one's ability to represent clients as it is an exercise in memorizing a massive amount of material that will soon be forgotten after the exam. Overall, an inefficient exercise that seems to benefit BarBri and other test prep outfits more than future clients.
I agree that we should have a bar exam. But it would be nice if it was actually geared to demonstrating that one could serve clients. The bar exams we have now seem like meaningless exercises that are more justified by the irrational sentiments like this: "Passing the Bar for lawyers is like paying taxes for everyone else. We all had to do it and by gosh the next guy or gal ought to do it too."
Yeah, I am glad that you used to walk to 5 miles to school in the snow, uphill both ways in your day. That doesn't really mean everyone should do the same. There is this thing, called progress....
To speak colloquially, that would suck. Big time. They told you you passed, and then they contacted you and corrected their error. If it happened to me, I'd be some combination of angry, upset, disappointed, depressed. But here's the thing: you didn't pass. It was just a mistake when they told you you passed.
If they take the licensing exam seriously, then your personal feelings shouldn't outweigh the fact that you couldn't pass it. If they don't take it seriously, then why not just scrap it and let everyone be lawyers?
Conservative Commandment One: "Those people" should give up belly aching about slavery etc.
Conservative Commandment Two: It was really, always, about Nifong. We've never seen such an egregious miscarriage of justice as the Duke Lacrosse case. Even if defendants didnt spend a night in jail. And hundreds of others have spent decades. After all, those "others" may have been innocent, but they werent victimized by a pampered, whiny faculty.
FWIW, I understand that Nifong graduated with Honors, and was by all accounts, an excellent attorney till March 2006, when he threw away a lifetime's work by engaging in illegal, not just unethical conduct.
Secondly, I assure you that North Carolina has a tough bar. We're not all country bumpkins down here. Whatever else happened in L' Affaire Nifong, lax bar standards had nothing to do with it.
1. One person got a windfall because a grader accidentally reported that the person had passed a section he failed;
Therefore
2. Everyone else that failed that same section should get the same windfall.
Assuming that you buy this logic (that everyone should have the benefit of an error that helped one test taker), why should the correction be limited to wills &estates? If it's unfair that one person should pass the exam even though he failed a section that he needed to pass in order to pass the exam, shouldn't every test-taker who missed passing the exam because they failed one section get the same benefit? Why should someone who failed the exam because they failed a different section fail, while someone who failed because they failed wills &estates passes?
That was much more fair than Michigan's system of individual appeal, where the children of the connected magically get enough points to pass.
All of this makes one wonder if something along the lines of the following occurred:
1. The politically connected examinees (and their daddies) lodge complaints about the WTE section, hoping to find an anomalously high failure rate, which would indicate substantive unfairness.
2. Calls are made to the bar examiners, specifically asking whether there were any substantive anomalies in the WTE section.
3. Bar examiners report back that while there were no substantive defects in content or grading, a transcription error was discovered.
4. While this wasn't exactly what they were hoping for, the politically connected examinees (and their daddies) cobble together the "If one gets a windfall, all get a windfall" theory.
5. Knowing that if applied consistently, the aforementioned windfall theory would cause a substantial rise in SC's overall bar passage rate but also desirous of helping out the examinees (and their daddies), the Supreme Court decides apply a substantive cure (throwing out just one section) to a procedural ill (mistranscription), hoping that no-one will notice.
6. We've noticed. Rut-roh!!!
What makes you think this complaint is limited to South Carolina, or to these specific facts? Courts always abuse power, including the US Supreme Court. And anyone who has a brain can tell that power still holds the key to success, and that performance doesn't matter. Didn't this blog just post about the firing of Rachel Paulose last week?
Also, PatHMV, I don't understand your argument. You say the problem is that the process is closed by citing an example of how they opened it for these politically connected applicants. But how logical is that, if the process was open, who's complaints and arguments would the court be most responsive to? It seems to me that it would clearly be the very same applicants. And the courts wrongful actions would be far less obvious in that case, since they wouldn't have to clearly violate the rule that grades were final in order to help these favored applicants.
Interestingly, the WTE had significantly more failures than any other essay section (and slightly more failures than the multistate.
From here:
Out of 552 examinees, 428 initially got passing scores. The failure rates on various sections:
Equitable Remedies &Domestic Relations—52
Wills, Trusts, &Estates—107
Insurance—58
Federal &State Procedure—58
Commercial Transactions &UCC—77
Corporations, Agency, &Partnership—76
Multistate Bar Examination—99
My memory is a bit hazy on this one though so if someone else knows more details that would be great.
It's bizarre that the Court even included the footnote you cite, unless it is trying to make the implication you're making -- that something was wrong with the WTE section. But if that were the case, why wouldn't they just say so?
I thought it was interesting, given ronnie dobbs' comment about the releative levels of WTE passing rates.
Given the footnote, it seemed somewhat likely to me the Court was attempting to suggest, without actually coming out and saying it, that the WTE might have been too difficult this year, and so throwing it out was no big deal. This seems bolstered by their inclusion of the February bar tests where the failure rate of the WTE section was substantially lower.
My take is that, of course they're not going to "just say so" because that would open the floodgates to people seeking to have any section where a disproportionate # of people failed dropped in the future—but who knows.
Unless you're up to speed on metes & bounds. Not that you'll ever see either one.
I'm not saying that at all. However, I don't think it would be unreasonable to draw that inference and then do a little investigation to see if the questions on that section were ambiguous or if the grading was unduly harsh. What's interesting, however, is that the Court seems to note the disparity but then ignores it by basing its decision on this crazy notion of "similarly situated" persons being entitled to the benefit of a transcription error that affected only one person who was not, in any conventional sense, similarly situated to the other 20 test takers.
In all mock seriousness, I advise you to never practice real estate law in rural Mississippi.
Prior to law school I clerked at a firm that did a substantial amount of real estate business in the three state area of Arkansas, Tennessee and Mississippi.
Proof reading deed descriptions of properties in Miss. that were outside of cities was the bane of my existence for some time.
Attempting to proofread a paragraph of "N42 35'W 57 feet to an iron pin in the middle of a road, thence S19 10'W to the middle of a creek, thence W45 15'N to a large oak tree... and on and on" is a mind numbing activity.
Anyone willing to claim "that performance doesn't matter" when practicing law, or in most other professions, probably was last in line when brains were passed out. Having powerful relatives helps when getting started, but its not decisive over the long haul, let alone "key".