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Will Bullas, The Bar Exam

Passing the bar exam matters. Students invest no fewer than a thousand days in school, another ten weeks cramming for the bar, and immense amounts in tuition, living expenses, books, supplies, and opportunity cost for a shot at earning the legal profession's only truly indispensable career credential.

The most recent issue of ABA Journal Online had a pair of oddly contrasting stories about bar exams. Even as New York's bar examiners were trying to reconstruct scores for 47 exams that were compromised by computer failure, the South Carolina Supreme Court has ordered the suppression of scores from the trusts and estates question on the South Carolina bar.

I think that the coverage of these two bar exam news items on the Feminist Law Professors blog hits the sweet spot of truth. It may be true, as Bridget Crawford suggests, that New York's imputed bar exam scores are brewing up a six-pack of trouble. If so, then South Carolina has enough suds on hand to intoxicate everyone who will be watching this weekend's football showdown between the University of South Carolina Gamecocks and the Clemson Tigers. Ann Bartow correctly calls South Carolina's situation a "scandal." South Carolina's leading newspaper describes the episode as "a mess for everyone."

Here's the key difference between New York and South Carolina: New York lost scores to computer error. It is trying to reconstruct, in evident good faith, what happened, or at least what one can reasonably expect to have happened, on 47 exams that the computer ate. The six people who failed the bar on the basis of that state's statistical evaluation will surely file grievances and may even sue, but the New York bar has been forthcoming with information.

South Carolina, on the other hand, is refusing to credit scores from a question that, by all appearances, had been written, administered, and graded in good faith. The South Carolina Supreme Court's statement offers no explanation. It's one thing, as New York has done, to lose exams and then to try one's best to fill the resulting gap. It is an altogether different thing to suppress seemingly legitimate results. It casts doubt on the legitimacy of the 20 putative "beneficiaries" who have now been admitted to the South Carolina bar by court order rather than exam scores. It casts doubt on the legitimacy of the bar passage rates of the state's law schools. It casts doubt on the legitimacy on the state's highest court and on the state's bar as a whole.

The South Carolina Supreme Court is the only entity that can end the embarrassment. Until that court explains the evident departure from its own rules, which appear to prohibit this very sort of intrusion into the bar exam process, it allows forums such as Above the Law (here and here) and FITSNews for Now (here and here and here) to define the terms on which this matter will be discussed.

So far South Carolina's Justices appear to hold the view that everyone will eventually forget and move on. They won't. As one of South Carolina's greatest heroes would call it, this is Swamp Fox news. They conceal; we'll decide.

Update, November 19, 2007, 8:30 p.m. Eastern: The South Carolina Supreme Court has issued this statement.

John Blake White, General Marion Inviting a British Officer to Share His Meal (1830-37)

Disclosure: Since someone else will point this out if I don't, I will do so. During the spring of 2006, I was a candidate for the deanship of the University of South Carolina School of Law. I didn't get the job. For a while, that outcome bothered me. It no longer does. I do care about South Carolina, because I grew up in the South and have ties to South Carolina, and hope for the sake of my friends who are connected to the South Carolina bar that this affair reaches some sort of good conclusion.