Modern Diploma Privilege: A Path Rather Than a Gate

Abstract

This article proposes a modern diploma privilege, a licensure framework that allows state licensure authorities to identify what competencies are expected of first-year attorneys, then partner with law schools to assess those competencies. Freed from the format and timing of a bar exam, schools can assess a broader range of competencies over longer time horizons. This will allow the development of law school curricula aimed at preparing students to assist clients rather than to pass the bar exam. The modern diploma privilege is structured as an ongoing partnership between licensure authorities and schools, which means that changes can be easily made to the list of desired competencies and/or the assessment methods. This in turn allows for a more nimble licensure mechanism that can quickly adapt to changes in the evolving market for legal services.

Part II of this Article explains the actors involved in legal licensure in the US and reviews and critiques historical licensure methods, with particular emphasis on the bar exam and diploma privilege. Part III contains the broad strokes of the modern diploma privilege proposal, in which state licensure agencies can carefully define the competencies expected of first-year lawyers, then partner with law schools and the practicing bar to develop assessments that accurately measure those competencies over appropriate time horizons. Part IV analyzes the ways in which the modern diploma privilege more accurately licenses the right attorneys. It discusses the 'ratio of regret', that is, reducing both the number of competent law graduates who are kept out of the profession and the number of incompetent examinees who manage to pass the bar exam. That Part also addresses the racial disparities in bar exam results and explores how the modern diploma privilege can be part of ameliorating that disparity, as well as addressing suggestions that the bar exam keeps attorney disciplinary actions low. Part V briefly concludes.

Keywords: bar exam, legal education