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Each day during this global catastrophe, another anchor by which we secure our cultural, social or civic institutions comes loose, and we must decide whether to attempt either to reattach it or else reinvent it. New Jersey, New York and several other states have cancelled their July 2020 administrations of the bar exam due to the coronavirus epidemic, possibly to be rescheduled for September, if conditions permit.

Our Supreme Court recognized that, “without a means to pass the bar and obtain a law license, qualified law school students who expect to graduate this Spring may lose job offers, be unable to find legal work, and otherwise suffer financial hardship.” This previously unimaginable situation prompted law students and legal academics to suggest a radical alternative: waive the requirement of passing the bar exam for 2020 applicants and enact an “emergency diploma privilege” that would grant an immediate license to practice. Loosely modeled after the 150-year-old practice in Wisconsin that permits J.D. graduates of that state’s two law schools who have also completed 60 course credits in certain prescribed subjects to receive a license without sitting for the bar exam, the “diploma privilege” was originally instituted to encourage entry into the profession through formal legal education rather than the then prevailing method of “reading law” through apprenticeships. The 2020 version would extend the privilege to graduates of any of the 200+ ABA approved law schools and would drop the specific curricular requirements.

In The Bar Exam and the COVID-19 Pandemic: The Need For Immediate Action, published on March 22, 2020 (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3559060), 11 legal academics make the argument for implementing an immediate diploma privilege. It argues that licensing 2020 law school graduates and skipping the bar exam is justified by the disparate impact the delay in licensing would have on providing legal representation to particularly vulnerable communities. Almost half of new law school graduates take jobs with government, public-interest organizations or small law firms of 25 lawyers or less. The paper further notes: “These … employers, notably, tend to serve the needs of low-income individuals, middle-income individuals, and small businesses. Disrupting the flow of new lawyers into these workplaces will undermine service to groups that already struggle to obtain services from our legal system.”

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