The Integrity of the Legal Profession Is Under Attack by Menstruating Women!
Fun fact: Bar examinees in Arizona may be prohibited from bringing feminine hygiene products to the test. According to the state supreme court this measure is necessary to prevent cheating, though there’s no evidence of the widespread use of crib sheets written on tampons. In any event, test takers will have to use whatever products the state board supplies. And if it runs out? Too bad.
This regulatory overreach is as stupid as it is draconian. For one, the court apparently doesn’t know much about the test it is administering. There are a lot of questions to answer in a relatively short period of time. The exam covers a wide range of issues including torts, contracts, procedure, criminal law, and much more. Test takers don’t have the luxury of constantly looking things up if they want to answer enough questions to pass and they couldn’t begin to copy all the information they might need on any non-electronic medium. So unless an applicant shows up with a shopping cart full of tampon boxes with alphabetized tabs, there’s no reason to think she’s planning to cheat.
Second, the state’s legal bureaucracy doesn’t seem to have a very good grasp on how tampons work. There’s not enough surface area to write much meaningful information. Also, tampons come individually wrapped. If someone tries to bring an open tampon the size of a wall-to-wall carpet and covered in scribble into the testing site, by all means be suspicious. Otherwise, one can assume it’s being carried for the intended use.
Third, and it seems like state supreme court justices should know this, it’s illegal. Government agencies cannot discriminate on the basis of gender any more than private companies. Facebook announcing a new policy prohibiting female workers from bringing their own tampons to work for fear that they will be used to copy trade secrets is the stuff of plaintiffs’ lawyers’ dreams. The Arizona rule obviously targets women. People who wear glasses don’t have to use pairs issued by proctors for fear that someone may have a secret computer screen embedded in a lens. Wheelchair-bound candidates aren’t precluded because their conveyances can be used to transport all manner of contraband into the test site.
So why this rule? Since it’s obviously not about preventing cheating, the provision is more likely a demonstration to prospective lawyers of the absolute power of the legal bureaucracy, a warning that it has unfettered control over the profession and broaches no dissent. Industry regulators operate under the self-serving presumption that all lawyers — excepting of course themselves and the big-firm attorneys — are inherently misguided and immoral and that austerity in oversight is vital for public protection. Perpetuating this fiction is a means of self-preservation: The bureaucracy is safe as long as the status quo is the only way to save the masses from a wily horde of lawyers with bad intentions and no scruples (menstruating or otherwise).
The regulators’ claimed concern for the public is belied by their failure to actually address the reality that many people who need legal services can’t get them. According to a 2020 article by BuzzFeed News Reporter Zoe Tillman: “At least one party in a civil lawsuit doesn’t have a lawyer in three-quarters of cases, according to a 2015 report by the National Center for State Courts, and the numbers are higher in cases more likely to involve litigants with lower incomes.” The CoVid pandemic has further increased the demand for lawyers to handle divorce, bankruptcy, and other matters but there has been little public discussion of how to meet this need. Even agreeing to consider rule changes and other potential innovations that might threaten the positions and status of judges, bureaucrats, and big firm lawyers requires tremendous effort.
The reality of legal industry regulation was broadly exposed as state supreme courts and boards of law examiners spent the last several weeks trying to justify an inexcusable failure to meaningfully address administering the test in the middle of a pandemic. Despite having months to prepare, they didn’t, leaving applicants who have spent thousands of dollars and need licenses to secure employment in limbo. Judges and bureaucrats then compounded the problem by turning a logistical headache caused by poor management into a public relations nightmare, exhibiting a toxic combination of pettiness, petulance, and arrogance. Some states canceled or postponed their exams, others are holding them as scheduled. Almost all asserted the same rationale for different decisions: Public protection.
This begs the question: While the regulators protect the masses from menstruating women bar takers, who’s protecting the public from the regulators?
Steven Fried is an entrepreneur, attorney, and the founder of OlyverApp, a web-based platform that helps entrepreneurs manage their businesses. Visit at www.olyverapp.com.