Anti-Cancellation Clauses: corporate timeouts for the digital age

Right now, a lot of people are getting fired because of Internet mobs.

This is a draft for discussion and is not legal advice. The text below is offered for discussion purposes only. You must speak to a lawyer in your jurisdiction and any other relevant jurisdictions before negotiating any employment agreement of any type. You are on notice of this disclaimer.

From Balaji “consistently several years ahead of everyone else” Srinivasan:

Or this from @stillgray:

So, in the United States employment terms are usually “at-will.” That is to say, anyone can fire anyone else for any reason at any time as long as they’re not discriminating against the person being fired when they do so. A typical employment-at-will clause might look something like this:

Your employment with the Company will be “at-will.” You may terminate your employment with the Company at any time and for any reason or no reason by notifying the Company. Likewise, the Company may terminate your employment at any time, for any reason or no reason, consistent with all applicable state and federal law, and without advance notice.  Your employment at-will status can only be modified in a written agreement signed by you and by an authorized officer of the Company.

– Standard form offer letter on my hard drive

In order for a clause like this to change to become cancellation-proof you’d really need two things to happen. First, you’d need to get a number of large companies to agree to adopt new standard language – or large numbers of workers would need to insist on it, such as workers in unions – in order that this would become an expected term everywhere, so workers had leverage to negotiate it. If Facebook and Google offer a term and Microsoft doesn’t, presented with materially identical offers, an employee might take Facebook and Google’s offering and ding Microsoft’s.

Second, companies would need to get their PR playbooks straight and adopt a pro-worker protection ethos and run a very standard form game to wait for the mobs to wash over them and move on to their next target.

Incentives don’t line up in favor of anti-cancellation clauses. It serves employers’ interests for employment to be at-will. Many employee handbooks have policies that require employees to not embarrass the company with their personal conduct. Seeing how the digital mobs are moving from target to target, though, query for how much longer companies will want this to be the case (who wants to be held hostage by Twitter mobs all the time?)

Any clause that achieves widespread adoption would need to accomplish the following:

  • Employment remains at will
  • Digital mob “Cancellation Event” is strictly defined
  • Cancellation Events always or almost always lead to Cancellation Leave of Absence/Cool-Down Periods before termination, and do not prejudice at-will employment rights of the employer after that period ends.

Here’s a first stab which isn’t legal advice, it’s just food for thought that I bashed out in 40 minutes. If you’re not paying me, I’m not your lawyer. Lawyers, feel free to critique on Twitter, or by e-mailing me at my work address (easily findable on Anderson Kill’s website).

The draft clause:

“(a) Your employment with the Company will be “at-will.” You may terminate your employment with the Company at any time and for any reason or no reason by notifying the Company. Likewise, the Company

i. may terminate your employment at any time, [and] [or];

ii. [save that,] on the occurrence of a Cancellation Event, Company [shall only] [may, in its sole and absolute discretion and in accordance with the provisions of sub-section (b) below, decide to] terminate your employment upon the expiration of any applicable Cool-Down Period,

in each case, for no reason or any reason, consistent with all applicable state and federal law, and without advance notice.  Your employment at-will status can only be modified in a written agreement signed by you and by an authorized officer of the Company.

“(b) Upon the occurrence of a Cancellation Event, [you and the Company agree that, in the Company’s sole and absolute discretion, the Company may require you to take] OR [you and the Company agree that you shall take] a 90-day leave of absence (“Cool-Down Period”) [in lieu of immediate termination,] [, with or without pay,] while the Company conducts an investigation, subject to such conditions and restrictions as the Company may in its sole and absolute discretion require. During such time you agree that you shall comply with any and all of the Company’s reasonable directions to protect the Company’s reputation including but not limited to deactivation of all social media accounts and making no statements about the Cancellation Event or any fact or circumstance arising out of or in relation to the Cancellation Event to any person except to the Company, to medical and mental health personnel, and attorneys, accountants or other professional services providers for the purpose of seeking professional advice.

“(c) “Cancellation Event” means an event where ten or more persons who are not employees, directors, shareholders, suppliers, customers, or other business relations of the Company or of Affiliates of the Company [“Affiliate” to be defined] contact the Company in a seven-day period with disparaging information about you, or call upon the Company to release you from your employment, in each case relating to your or a third party’s personal conduct outside of the scope of your employment which is legal in the United States.”

What the draft clause does:

This is not a pro-employer clause by any stretch of the imagination. Employers aren’t going to like this unless they’re really very anti-digital mob and are willing to put up with the heat of keeping someone controversial on staff for 90 days. A friend has suggested that if the 90 day period were expressed to be mandatory that a substantial severance be available for an employee who were “cancelled” as sometimes employers just need to get someone toxic out the door immediately. I might suggest that if the conduct were that bad there would probably be tangible reasons to effectuate a dismissal under normal circumstances anyway (creating a hostile work environment, etc.)

I freedrafted this but it’s kind of a mishmash of a suspension, a confidentiality agreement and a termination procedure. Key aspects:

  • Relentlessly pro-employee language.
  • Promotes the First Amendment space outside of the office, where it belongs, not inside it, where companies like Google have had to crack down on internal politics. This language encourages people to engage in politics in their free time and not on office time.
  • Strictly defines “Cancellation event.” Ten people. Seven-day period. Not related to the company. Personal conduct.
  • Protects out of office conduct which is outside of the scope of employment only. If you mess around within the scope of your employment you’re not getting cancelled, you’re getting fired.
  • Requires ten or more people who are not involved in the company to contact the company for aforementioned conduct. Employees can complain without triggering a Cancellation Event, so if someone gets wasted and behaves like a jerk at an office party you can move straight to termination with a straight face.
  • Allows third party conduct to trigger a cool-down period (so employees don’t get fired for the conduct of their wives, like the L.A. Galaxy’s Aleksandar Katai).
  • Protects employee conduct which is legal. Does not protect conduct which is illegal.
  • Allows the Company the ability to fire the employee OR go for a Cool-Down Period, relying on reputation risk to keep themselves honest (“this Employer rarely fires before a cool-down is done”). Obviously if the employee is particularly outspoken or represented by a union, he or she could negotiate a mandatory cool-down period in the event of a Cancellation Event. I’d think this would be an excellent clause for unions to insist on in employment contracts.
  • Allows the Company wide discretion to immediately remove the employee from active duty while it conducts an investigation.
  • Allows the company to prevent the employee from making a bad problem worse on social media and putting his or her foot in it with the press.
  • Gives the company air cover to say it is contractually bound to honor the process as it’s a term of employment that the Cancellation Event gives rise to a termination sequence which is contractually binding.
  • Allows people with a legitimate interest in the company’s business, such as employees, directors, shareholders, and suppliers, to complain about employee conduct while not counting towards the “Cancellation Event” ten-count or triggering a “Cancellation Event.”

Questions? Hit me up on Twitter or Gab. Or send a good comment and if I like it I’ll let it through moderation.

Business compliance issues arising from “domestic terrorist” use of internet platforms

The below is not legal advice. See disclaimer.

Good morning, on the strangest Monday morning in American history

This morning, on Twitter, the President of the United States declared Antifa – Antifaschiste Aktion, an originally-European street gang of far left wing activists – to be a terrorist organization.

Whether we agree with that designation or not, the fact that it has been made poses business challenges. It does not help that the President’s wording was legally confusing.

The United States recognizes two classes of terrorism: domestic and foreign.

The term “designation” is usually only associated with the foreign type. Section 302 of the Anti-terrorism and Effective Death Penalty Act of 1994 permits the Secretary of State to designate foreign organizations that engage in terrorist activity which threatens the security of the United States nationals or the United States. The consequences of such designation include possible asset seizures of the foreign domestic terrorist group, at the direction of the Secretary of the Treasury, and most importantly, the creation of criminal sanctions for providing “material support or resources” to a foreign terrorist organization (or “FTO”) or attempting or conspiring to do so, per 18 U.S. Code § 2339B.

The list of FTOs includes a veritable rogues’ gallery of international baddies including e.g. the Real IRA, Continuity IRA, FARC, the PFLP, Shining Path, ELN, ETA, Aum Shinrikyo, and of course various national chapters of Al-Qaeda and ISIS.

The First Amendment makes domestic terrorism different from foreign terrorism

What’s not on the list are American groups known or alleged to have engaged in terrorist activity, such as various white nationalist groups, the Klan, or, now, the U.S. chapter of Antifa. There is a reason for this, and that reason is the First Amendment to the U.S. Constitution. Lest we need a reminder what this says, I reproduce it below:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

As applied to the states and subordinate entities through the Fourteenth Amendment, the general import of this rule is that states do not have the power to control political thought.

“Freedom of speech” does not mean “freedom to say whatever the hell you want.” The English common law tradition has long recognized that certain types of low-value speech, including defamation, threatening and incitement, have no place in civilized society. Low-value speech of that type was not then, and is not now, legally tolerable.

The First Amendment was designed to address very specific political crimes, chiefly a crime known as “seditious libel” and a fake news tort known as “scandalum magnatum.”. Americans will be familiar with seditious libel through the grade-school history story of New York publisher John Peter Zenger. In 1733 Zenger, we will recall, printed editorial material which was offensive to the then-governor of New York. He was charged with seditious libel and acquitted by a jury, on the basis that truth was a defense. He is thus celebrated as an early hero of freedom of the press.

But if you ask most people what “seditious libel” actually is, they’ll struggle to give much of a definition beyond “uh, saying bad stuff about the government.” The true significance of that ruling can really only be understood if we actually look at what seditious libel actually was, element-by-element, and compare it to libel today. I did the reading here so you wouldn’t have to; summarizing, seditious libel is

  • Statement
  • In writing
  • That encouraged a breach of the peace, i.e., “diminished the affection of the people for the King or his minister and thereby encouraged rebellion”
  • Which is published
  • With malice; which is rebuttably presumed on publication;
  • Punishable as a misdemeanor.

See Philip A. Hamburger, The Development of the Law of Seditious Libel and Control of the Press, 37 Stan. L. Rev. 661, 678 (1985), citing trial of Dover, 6 STATE TRIALS 874 (1816) at 558 (King’s Bench, 1663).

Compare that with defamation, which is a

  • A false statement of fact
  • Which is published
  • Which is likely to lower the estimation of the claimant in the eyes of right thinking people

If we examine the elements of seditious libel, we notice that one element we would customarily require to maintain a modern-day defamation action is missing: there is no requirement that the statement be false. That is, if someone defames the King or his Ministers and thereby “encouraged rebellion,” which term really meant any disaffection of the state whatsoever, even if the statement were true, one could still be found guilty of libel and punished accordingly.

A related tort, as I mentioned, was “scandalum magnatum.” This was a publication in news, which was false, which slandered a peer, great man or institution in England. Scandalum magnatum was more limited in scope and harder to prove than seditious libel – the publication had to be news, and that news had to be false – so, as a result, this action eventually fell into disfavor, and seditious libel was the preferred mechanism for punishing thoughtcrime expressed by enemies of the state.

The English, in their very English way, tolerated this state of affairs for several hundred years; seditious libel was in fact regarded as something of a slap on the wrist, since an identical fact pattern could also sustain a charge of treason (but whereas treason was punishable by death, seditious libel was a misdemeanor).

Without waxing lyrical about the founding fathers and their motivations for creating the United States, they recognized that speaking truth about the government was an important element of a functioning democracy. For this reason, “the First Amendment was intended to wipe out the common law of sedition, and make further prosecutions for criticism of the government without any incitement to law-breaking, forever impossible in the United States of America.” (See Zechariah Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 947 (1919))

Generally speaking, in the United States, ideas are not illegal, “hate speech” is not illegal, advocacy of terrorism is not illegal and mere membership of a political group, however terrible its goals and however unlawful the end of its political advocacy, is not, by itself, illegal. Any law stating otherwise, generally, will be unconstitutional. This is as true with the Klan as it is with Antifa, as confirmed in the case Brandenburg v. Ohio, 395 U.S. 444 (1969).

This is the basic legal background necessary to understand the reasons for the differing legal treatment of domestic and international terrorism in the United States.

Terroristic syndicalism, without conspiracy or action, is not illegal. However, businesses should expect to face an increased number of Antifa- and riot-related legal process.

Because of this, domestic terrorism is not a separate category of crime, as it would be in, say, England and Wales – domestic terrorism is the commission of crimes which can be committed in a non-political fashion, like murder, battery, or arson, except committed with a political motive. The “domestic terrorist” designation is therefore best viewed as an instruction to local joint terrorism task forces, or JTTFs, to prioritize enforcement action against certain militant groups for violation of existing criminal laws, as we are constitutionally barred from considering political motives on domestic citizens (with certain exceptions for bias crimes).

Brandenburg has been the standard American courts apply to extreme political speech for over 50 years. Without going into too much detail, in Brandenburg, the defendant, a Klan member, hinted that taking revenge on the institutions of American government might be necessary if [insert the usual reasons].

He was arrested for criminal syndicalism, which basically is legalese for advocacy of terrorism. Convicted at first instance, with the conviction affirmed on appeal, the United States Supreme Court overturned the conviction and created a two-part test, the Brandenburg test, to determine when speech that advocates in favor of violence becomes unlawful. It wrote:

“The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force, or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action.”

Two parts: (a) directed to inciting imminent lawless action and (b) likely to produce it.

That’s a high bar. Saying “Burn it all down” on Twitter doesn’t meet it. Writing “meet at Lafayette Square at 8:00 PM next Thursday to set a building on fire” in your journal which you show to nobody else doesn’t meet it either. Saying “meet at Lafayette Square in ten minutes to set a building on fire”, if indeed you are near Lafayette Square, probably meets the bar. Saying “throw a brick at that policeman” also meets the bar and will be unlawful.

Which brings us to Antifa. Antifa is a loosely-formed anticapitalist movement. Its precursor was founded in Germany at the end of the Weimar period, during Hitler’s rise to power. The original movement was crushed and, as we know, that story did not end well.

The name and symbolism of the original group has since been appropriated by a variety of different groups at different times. The current American version of the movement is one of these imitators. Per the Anti-Defamation League:

These violent counter-protesters are often part of “antifa” (short for “antifascist”), a loose collection of groups, networks and individuals who believe in active, aggressive opposition to far right-wing movements. Their ideology is rooted in the assumption that the Nazi party would never have been able to come to power in Germany if people had more aggressively fought them in the streets in the 1920s and 30s….

Antifa have expanded their definition of fascist/fascism to include not just white supremacists and other extremists, but also many conservatives and supporters of President Trump.  In Berkeley, for example, some antifa were captured on video harassing Trump supporters with no known extremist connections. 

Antifa is not a unified group; it is loose collection of local/regional groups and individuals. Their presence at a protest is intended to intimidate and dissuade racists, but the use of violent measures by some antifa against their adversaries can create a vicious, self-defeating cycle of attacks, counter-attacks and blame. This is why most established civil rights organizations criticize antifa tactics as dangerous and counterproductive.

What we have with these riots are two components: an ideology advocating violence against broad swathes of the U.S. population (if Trump supporters are counted, 63 million Americans); and individuals who are willing to carry out that ideology in the form of direct action in the streets. The first of these things, generally speaking, is legal; the second, generally speaking, is not.

Why Antifa and other violent elements of American society have decided to do what they did at this time is not presently known. What businesses need to know is that, in least in my assessment, Covid-19 has pulled back the curtain on a widespread, nihilist radical insurrectionist ideology adhered to by thousands of American citizens who, until this week, were not a priority for the Department of Justice.

Renewed compliance priorities.

What I suspect we will find as the DOJ’s investigation into this matter continues is that Antifa – as an ideology – is not a de novo movement but rather is a rebranding of prior, legally compliant movements on the left like the American Communist Party. Accordingly it is likely subscribed to by a significant but small percentage of the U.S. population on an informal basis.

What is likely to follow these riots is a domestic intelligence-gathering mission and campaign of criminal prosecution the likes of which has not been seen since COINTELPRO. To the extent that the political temperature rises or there is additional factionalism in the run-up to the election, it is probable that companies may need to be aware of numerous types of violent ideological users on their platforms.

Companies of all sizes need to adopt a strategy for dealing with law enforcement as these investigations proceed so they can provide timely and accurate responses to law enforcement officers who are doing the important work of keeping America safe.

The following issues are likely to be foremost in internet companies’ legal compliance after the riots are over.

1) For non-financial communications, Section 230 of the Communications Decency Act gives businesses considerable legal air cover regarding terrorist-related content on their sites.

Section 230 of the Communications Decency Act was in the news last week when the President called for its repeal. I explain what Section 230 is in this blog post and explain why repeal or reform as suggested by the Congressional GOP won’t work in this blog post. See also this blog post on Open Access Publishing Platforms and Unlawful Threats.

Section 230, in a line, is a rule which basically says that any company that sets up a website that allows other people to speak is setting up a digital soapbox where other people can stand on it and use it to communicate, but the person who laid the soapbox on the commons won’t be liable for what they say (subject to certain statutory limitations).

The Section 230 immunity is generally thought to apply to terroristic content on a website. So, if a terrorist uses Facebook to communicate, but Facebook is just providing the soapbox but isn’t contributing to the speech, Facebook will not, generally speaking, be liable for the terrorist content, even if Facebook knows about it and even if Facebook chooses not to remove it. See Force v. Facebook, Inc., 934 F.3d 53 (2019).  

This does not mean that companies should ignore terrorist content. Far from it; it is a good business decision to be aware of terrorist content and where possible to either interdict it, report it, or use a company’s terms of service to deny use of the network to terrorist users.  

2) Financial communications

Terrorism compliance used to be a mostly foreign affair. Following the Trump Administration’s Antifa designation in an election year, this is no longer true. Surveillance will need to keep current with the situation on the ground to ensure that payment systems and banking systems are not used to finance violent insurrection. BSA compliance will need to acquire a degree of awareness of the current domestic U.S. political situation that it may not have deemed necessary prior to the DOJ’s designation of Antifa activities as domestic terrorism.

3) Expect a signficant uptick in Stored Communications Act disclosures.

Early-stage internet businesses which are not accustomed to receiving search warrants and  subpoenas should prepare to begin receiving them. Generally this means a single, standalone e-mail inbox or web portal should be provided for law enforcement to contact a general counsel-level officer of the company or a direct report of the GC with document preservation orders, formal legal process such as subpoenas, 2703(d) orders and search warrants, or requests for emergency disclosure.

Disclosure of company data to law enforcement officials is controlled by the Stored Communications Act.

In the United States, companies are not at liberty to simply act as a data fire hose to the government. Congress requires, in keeping with the spirit if not the letter of the Fourth Amendment, that a modicum of legal process be followed before third party records on file with U.S. internet companies is provided to law enforcement officials. Generally speaking there are four types of disclosure. The first is a non-emergency grand jury or administrative subpoena in which subscriber data is requested; things like login records, IP logs, and user e-mail addresses.

The second is something known as a 2703(d) order, which can either request data and metadata or can request the content of communications data with disclosure to the subject of the investigation (although this notice can be temporarily waived with a nondisclosure order).

The third type of data request companies will get under the Stored Communications Act is a search warrant. Search warrants under the Stored Communications Act, unlike search warrants for the home, do not tend to be particularized and indeed can be incredibly broad (“provide all messages ever sent”). Businesses should be alert to requests in search warrants that actually ask for records of the business rather than records pertaining to the user, e.g. password salts, and push back on those requests where appropriate with a short note to the U.S. Attorney.

The fourth type of data request is an emergency data request when there is an emergency involving danger to life or of grievous bodily harm. Although compliance with these requests is optional, it is usually advisable to respond to these quickly. If you refuse, the FBI or other requesting agency likely has information which is sufficient to sustain a search warrant or a subpoena and they won’t be terribly pleased if they’ve told you it’s an emergency but you make them get the order. Law enforcement officers I have dealt with are pretty good about not overusing emergency requests, presumably lest they be viewed as having cried wolf.

These data requests will be extensive and may be frequent, particularly if your app or service is used by a hip millennial demographic that intersects with individuals who participated in the riots. Businesses will need to trade off between security on the one hand and ease of access to data on the other; user data should not, for example, be accessible by an administrator working remote from the surface web.

4) Employment manuals require clarity on the scope of permitted political activity outside of the office, and companies should examine whether to adopt a position of political neutrality on all issues not directly pertinent to the business, to avoid embarrassment.

As we move into a new, strange, and possibly dangerous phase in American history, what is clear is that businesses which hitherto were able to comfortably pretend that their employees all read the H.R. manual, enjoy the teambuilding exercises and feign attentiveness watching the diversity training videos may harbor extreme ideologies which hold the potential to create significant embarrassment for the business.

This weekend I was shocked to learn that a furloughed associate at Pryor Cashman –  a well-respected midlaw law firm in New York –  and another New York-admitted attorney were charged this weekend with setting an NYPD van on fire in Brooklyn. Attorneys in New York are sworn to uphold the Constitution of the United States and are subject to automatic disbarment if convicted of a felony. We are supposed to uphold the rule of law and the administration of justice. Firebombing a police van is about the greatest betrayal of those professional vows I can imagine.

Participating in a riot is surely grounds for summary termination and disbarment. In combination with the fact that these riots are so large and widespread that they’ve put American security forces on the defensive, this suggests that extreme radical views are held in a very widespread way in unusual places that, to date, the corporate media have refused, or been unable, to investigate.

After the 2016 election, corporate participation in partisan politics extended to the highest levels of business in many household names like Google, Facebook, and Citigroup. Many companies have chosen to express support for the protestors.

Support for the protestors, such as it was, is eroding quickly in affected areas as property damage is incurred and the body count rises. I should imagine that, as the investigations around these riots continue, this means that there is the potential for significant embarrassment if it is discovered that employees of these companies and company resources were devoted towards civil unrest.

Given how destructive the protests have become (St. John’s Church, around the corner from my place in D.C., is burning down as I write this blog post), I cannot help but wonder whether corporate political neutrality – the way our parents did business – will see a resurgence in the wake of this crisis.

Companies should immediately revisit their policy manuals and arrive at a view on whether partisan political activity outside of two-party politics (service on town boards and the like) will be permitted outside of work hours.

A warning to those who would abolish the bar exam, from a dual-admitted U.K./U.S. lawyer

Utah has done the unthinkable: it has cancelled its bar exam and decided to admit future lawyers, for one year only, on the basis of diploma privilege.

I joke, but only a little. Covid-19 is the sort of force majeure scenario which justifies such a drastic course of action, although I’m sure that prospective lawyers in Utah from the law schools that benefit from the so called “diploma privilege” exemption aren’t crying themselves to sleep every night over the fact that they didn’t have to take what is, by any account, the worst thing most lawyers will ever have to do.

Which is not to say that I regret taking the exam myself. Far from it. I am glad I took the test. I felt incomplete being an American citizen and English lawyer who hadn’t passed the test. I will remember the day I passed it (first attempt, fyi), and the day I was sworn in about 35 days later, for the rest of my life. I am particularly glad that, unlike these poor souls in Utah, I will never have to endure the asterisk: “Well let me tell you, when I was your age I remember passing the bar exam… you didn’t have to take the bar exam?… well LET ME TELL YOU…” …that every law partner in Utah will tell to the Class of 2020 for the next twenty years.

Of course, legal academics and legal education observers, who love to talk and thinkpiece their way through life, have now begun to contemplate the implications of not holding the exam – not just this year, but permanently. I’ve seen this argument made a hundred different ways over the past ten years. Recently Law360 ran this article – Don’t Just Delay the Bar Exam, Cancel it Forever – in which an attorney wrote that

Law students go through three years of legal education (or not) and have to take exams in all the required courses (and some electives). More and more law schools are providing clinical education and courses about law practice management. And while the profession questions whether today’s law students are prepared to be lawyers, we still make them sit in a large ballroom or convention center for two or three days and answer questions about legal concepts.

Another articleIs the Bar Exam Necessary? written by Stephen Foster of Oklahoma City University, tweeted below by a law professor from Ohio State, had this to say:

From the article:

Aside from the obvious financial bias, the white paper conflates bar exams protecting the public with their version of the bar exam protecting the public. They espouse the MBE’s greatness through reliability and validity. Their argument is an objective MBE is fair, and thus the best assessment. The argument is persuasive if fairness also related to the practice of law, but unfortunately, I believe the MBE only tangentially relates to competence to practice law...

I contacted over a thousand former students and attorneys in OKC to take a simulated MBE provided by a bar review company.  Approximately 20 agreed to take the exam.  The practice experience ranged from 1 year to over 15 years.  Unsurprisingly, 0 (zero) people passed the simulated MBE according to the Oklahoma MBE cut score at the time (135).  A litigator passed the Evidence section, but no one else passed the subject they practiced the most.  ADAs and PDs failed the Crim Law section.  Transaction attorneys failed Contracts.  As attorneys’ experience increased, MBE scores decreased.  I had Superlawyers, local award winners, and Superlawyer Rising Stars take the test.  The results were the same for everyone.

This is a garbage argument, because (a) the bar exam does not test competence and (b) a bar test-taker’s competence to practice law the day after the exam is non-existent or very close to it.

Virtually no law student is competent to practice on the day they leave school, or even on the day they pass the bar exam. They have never practiced law a day in their lives; they have no idea what awaits them. Competence at law practice can only be acquired and added to through experience, “on the streets,” with actual clients and actual legal work. Law school is about teaching students the language and logic used in law practice, not practice itself.

“The criteria for admission should be competence” is therefore little more than a pretty lie we tell ourselves. We cannot make policy based on a lie, however convenient it may be.

What we really mean, and what we should say, is that the bar exam is a test of intelligence and mettle. Brilliant candidates can and do fail if they do not put in the work; the most determined candidate can and does fail if they’re just not cut out for it (one of the test takers in Connecticut in 2018 had taken, and failed, the exam something like 13 times). Nobody admits this because doing so would offend test takers, particularly those who do not pass, and law school professors, particularly those at schools with low pass rates.

“Protecting the public,” “ensuring lawyers are competent,” blah blah is all doublespeak designed to avoid stating the obvious, and uncomfortable, fact that, while all lawyers make mistakes, dumb and undisciplined lawyers have the potential to make many more mistakes than average. The exam serves as an intellectual hazing ritual which weeds out less able candidates by testing a huge battery of basic knowledge the bar has decided students must have, even if they will never use it, much like medical boards which young doctors must take.

Seeing and understanding that material easy-does-it, steady-as-she-goes, at a slow pace, as students do in law school, with the assistance of group outlines, in many cases tested by open-book or even open note(!) exams, is easy. (Most 3Ls don’t flunk out.) Having enough familiarity with the material to comprehend problem questions and compose answers on the bar exam proves the student has at least seen the material once, has mastered it, and is smart enough to recall it and form coherent thoughts about it in an immensely high-pressure situation.

(The Common Professional Examination battery of academic law exams in England, by contrast, is not open-book, is 100% essays, expects detailed knowledge of case law and takes 21 hours over 10 days rather than 12 over 2 days. It was considerably harder than U.S. law school finals and in my opinion it was somewhat harder than the Uniform Bar Exam.)

Passing the bar exam requires a lot of hard work to commit information to memory, and sufficient intelligence to be able to apply it to problem questions. I would agree with the authors above that possessing a certain number of IQ points and a willingness to work one’s ass off is not, in itself, enough to say a test-taker is competent to practice law — how could it be? — but it is a good indication of some of the basic qualities a lawyer needs to possess in order to serve a client effectively, chiefly, intelligence, the ability to process information while operating with a degree of expeditiousness, the ability to express him or herself coherently and the willingness to focus one’s efforts and work very hard to achieve a singular, arbitrary objective that a third party has set.

Lawyers, like doctors, must fuse practical competence with intellectual competence. A heart surgeon may have outstanding manual dexterity, but failure to match skill with the hands with wider medical knowledge necessary to treat the whole person – failing to demonstrate an ability to master of the basic corpus of medical knowledge required to pass the boards – should be disqualifying. So it is and should be with law.

I therefore think the bar exam is actually not so bad as its detractors portray it. This state of affairs is unfair, of course, as life is unfair. By the same token, so is the requirement that most students must complete three years of postgraduate study before being allowed to sit the bar exam; that is particularly unfair, especially for bright students from low- and middle-income backgrounds who might be in a position to just avoid all the fuss, take a bar review course and sit the exam. (We do not often hear it said by legal academics, “abolish the law schools and allow college graduates to proceed directly to the bar, because three years of life and $200,000 in federally-guaranteed student loan debt which is applied towards our salaries is unfair!”)

The question then is not “should we abolish the bar exam because it is unfair?” The question should be whether the bar exam is the least unfair or least bad option to ensure that individuals possessing the requisite intelligence and drive to be lawyers, become lawyers, so that there may be adequate competition for legal services at the same time as the public is protected and the administration of justice remains efficient.

Due to economics, “Diploma Privilege Plus” is probably less fair than the bar exam

The alternatives seem to be one of two things. “Diploma privilege,” where obtaining a law degree is on its own sufficient to practice, and “diploma privilege plus,” meaning the bar exam is waived, but students have to practice under supervision of a senior attorney for a time.

Except for a few odd jurisdictions like Wisconsin, pure diploma privilege is not practiced; in my view, nor should it be, as this takes responsibility for testing newly graduated students and puts it in the hands of the universities, which are not to be trusted seeing as their incentives are to ensure all their paying students pass. Per ATL,

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“Who does all the supervising?” ATL asks. The answer is “probably no-one,” at least in an economic depression. “Diploma Privilege Plus” will have three consequences.

1) There are those who argue the bar exam is an undue financial burden (about $1,000). Under Diplo Privilege Plus (“DPP”) The price of admission to the legal profession is the cost of three years of law school, which is much more expensive than the administration of the bar exam (for those folks who argue that the bar exam is an undue financial burden).

2) DPP requires all prospective candidates for admission to first find a lawyer willing to oversee them for a period of apprenticeship. Employment is a qualitative exercise rather than a quantitative one. The well-connected and well-educated will be first in line for those jobs, much as they are today. Except, where today being poorly-connected might result in a lower salary, under DPP being poorly-connected might mean not getting admitted at all.

3) In the worst economic crisis in living memory, DPP might make it appear superficially easier for students to pass through the gates. We cannot know what will happen in advance, but if I had to guess, I’d think that if DPP were rolled out in a depression, the number of law jobs available for prospective attorneys would fall dramatically, acting as an absolute cap of the number of attorneys that will be admitted in that year, regardless of ability.

There’s a system that works like this already. It’s called England and Wales.

As it happens, I’m one of very few Americans I know of – I know of two others – who were first admitted in England. Of the three of us I’m the only one who decided to come home and get admitted again. (It’s a lot of school.)

In England, after law school one is required to undertake a one- or two-year apprenticeship (depending on whether you’re a barrister or solicitor) before you’re admitted. If you get an apprenticeship a few years ahead of time, the firm (often) will pay for law school and give you a stipend to live on.

Not bad, right? Well, it’s a contract, and as such, it cuts both ways. During your apprenticeship, you are bound to that employer; your pay is considerably lower than that of a junior associate at a comparable firm in the United States; leave your job, and your entry into the profession will be more or less permanently denied (no-one will re-hire a trainee who quit).

For law students now thinking that “diploma privilege plus” might seem like a *great* idea, a word of caution. “Lawyers pay our law school fees! No exam, we can get straight down to work!” Sure, fine. The problem is that, unlike in the U.S., before you can get admitted you have to get a job – and get a law firm to commit to keeping you on its payroll for a fixed two year term up front – before you can practice.

Amid a worsening economic crisis it’s not hard to see why “diploma privilege plus” might be a bad idea. If you thought the bar exam was a barrier to entry, apprenticeship programs – properly, “training contracts” – are *way* worse. If the number of law students exceeds the number of places, it is a guarantee – an absolute certainty – that everyone who wants to become a lawyer won’t, even if they’re good enough, because a prerequisite to qualification is legal employment for a fixed term.

After a certain number of attempts, many people give up – law firms won’t hire someone whose degree has gone “stale.” This also means that admission tightens the supply of lawyers in response to recessions and increases the supply of lawyers in response to economic booms, in each case on a two- to three-year time delay.

The law grad/job availability ratio in the UK is something like 6:1 in any given year, 10:1 (or worse!) for barristers. I dread to think what it will look like in September 2021.

So diploma privilege may look great now. But in countries that have it plus apprenticeship, access to the profession isn’t easier. In terms of conversion of successful law graduates into actual, practising (British spelling) solicitors and barristers, it’s considerably more difficult. Which means there are significantly fewer lawyers: in the UK there are 140,000 solicitors and 13,000 (thirteen thousand) barristers on a population base of 66 million. In the U.S. there are approximately 1,338,000 lawyers – roughly 9 times as many lawyers – on a population base five times as large, all of whom have higher rights of audience (a right which, in England, is the exclusive preserve of the barristers and the occasional solicitor-advocate).

There are cultural reasons for this. But there are also economic ones, and the apprenticeship requirement is one of them. I have a number of close personal friends who tripped up on that final leg of the race to admission.

Nobody disagrees there should be a barrier to entry to the legal profession. The question is what that barrier should be. Personally, I would have preferred then, and still prefer now, having an objective, anonymously-graded test, lasting two days and costing $800, as that barrier. The “Diploma Privilege Plus” crowd would abandon that test and instead force new law grads to deal with hiring managers, work visas and the labor market in a quest to secure a two-year, underpaid, apprenticeship which they may never obtain.

No thanks.