Memo To Boards of Law Examiners: You Can’t Code Your Way Out of This

Try this code!

The consequences of the legal industry’s tepid relationship with technology are now manifesting in failed attempts to implement virtually overnight an online bar exam. Examinees risking their lives to take the test in person and occasionally under conditions akin to a custodial interrogation (complete with intrusive searches) proved a public relations disaster. Amid withering albeit wholly justified criticism of their remarkably callous disregard for anyone else’s well-being, bureaucrats who rely on the test for their positions and paychecks found themselves needing a miracle. They turned in desperation to tech providers with unproven track records. The dismal results should have been foreseeable to boards of law examiners whose every attempt to demonstrate their own relevance only seems to prove the opposite.

Developing a reliable and secure process for administering the bar exam online is certainly feasible. However, it can’t be done overnight. Building complex internet and software systems involves a process of continuous testing and debugging. It’s necessarily time-consuming. Even if the regulators had been quick to adapt to pandemic realities and started seeking an online solution in February or March — that is, had they done their jobs — it is unlikely that a reliable technology solution would have been developed in time to give the exam as scheduled. Not surprisingly, the effort to do so overnight has resulted in a comedy of errors that bar applicants don’t find amusing. Florida recently cancelled its exam three days before the scheduled start. California’s February 2021 sitting takes place a week after results are posted for the fall test, meaning applicants today should sign up and pay to take it twice in case they fail the first time. California’s bar exam is notoriously difficult; only 26.8% of February 2020 applicants passed.

Moreover, online administration doesn’t address the bigger problem: The bar exam is antiquated and useless, a glorified hazing ritual that provides no real benefit to the industry or public. There is also the substantial opportunity cost of prioritizing the protection of regulators’ jobs. Resources devoted to developing an online bar exam could be invested in promoting access to justice. For example, allowing applicants to provide supervised pro bono services to the unrepresented facing eviction, bankruptcy, or child support enforcement would be a far more efficient use of idle talent while giving future lawyers a chance to demonstrate competence. It would constitute a genuine effort toward the state bars’ alleged goal of “public protection”. The focus on technological testing adaptations is a convenient distraction by self-interested regulators.

Technology cannot fix an inherently flawed regulatory scheme. The law itself must adapt to the times. Uber and Lyft recently stopped operating in California as its courts and legislature determined that all drivers be classified as employees. The companies, already struggling financially (Uber posted a $5 billion loss in one quarter of 2019) claimed that the resulting increase in labor costs made it too expensive to operate. The shutdown that followed benefited no one: The state, the companies, the drivers, and the riders were all losers.

Regulations that effectively protect workers without unduly burdening companies must strike a delicate balance of multiple economic and social factors. The scheme currently in place throughout the United States was laid out in a 1952 treatise by Professor Arthur Larson, who also worked at the Department of Labor under President Eisenhower. California still applies a variant of his “Nine Factor Test” to differentiate between employees and contractors. Larson’s treatise was written for a manufacturing economy in which workers could be easily categorized. In today’s “Gig Economy”, job functions are much more blended with many positions having some characteristics of both employment and contracting. Trying to classify them definitively using Larson’s test is impossible and leads to absurd results. In California, treating part-time drivers as manufacturing-era employees drove Uber and Lyft from the state. Consumers lost alternative service providers that drive down prices. Drivers forfeited an important source of income. The state collects no revenue.

There is no technology solution to California’s underlying regulatory problem. For example, digitizing the processing and review of applications for unemployment benefits won’t make a system for classifying workers that is over 70-years old and doesn’t reflect modern economic realities more efficient or functional. The regulatory scheme itself requires a complete overhaul. Likewise, an online bar exam doesn’t somehow make an antediluvian process magically perform its essential function: Determining if a license applicant has the competence to practice law. The regulatory regime for licensing lawyers needs a systemic overhaul, not quick fixes that keep bureaucrats in jobs.