The month of July has almost ended and the Bar Exam is just as much in flux now as it was back in April. For many applicants to the bar, the situation is changing on a daily basis. Just this past week the applicants to the Louisiana Bar were granted Emergency Diploma Privilege. Indiana was forced to postpone its bar exam due to issues with the online testing administration software they had selected. The applicants to the Nevada online bar exam had their exam postponed to observe the administration of the Indiana bar exam as both states planned to use the same software. The new date for the Nevada exam now overlaps with the Multistate Professional Responsibility Exam which some portion of applicants may have need to complete as well. The applicants to the Delaware in-person bar exam were told that their exam was canceled for public health concerns and that some kind of limited practice rule will be implemented. These are just a few of the many jurisdictions experiencing uncertainty right now as some states are about to begin in-person testing and others are rushing to implement new software-based solutions.
The ethics of an online bar exam have been discussed at length in other pieces like this one. Rather than discuss the ethics, I’d like to take a step away from the legal realm and discuss the logistics of using software for the bar exam because its time that we all be honest with ourselves about the realities of implementing an online bar exam.
I want to start with a bit of context. Before I went to law school I worked in software at a major business software vendor. This vendor provides business software to large clients in a number of industries including government, healthcare, and universities. I worked in both technical and non-technical roles. I was a product owner which was a role where I oversaw the development process of a new product and coordinated the design, development, marketing, sales, and implementation of that product and got to see the software development process from start to finish. That being said, the software I worked on was not exam software and I have no specific experience except as a user with the software vendors being considered for the bar exam. I am admitting that I cannot directly critique the software in question, but what I want to talk about instead is the process of doing something like this.
We like to think of software as being turn-key. We like to think of software as an app where you can buy it and log in and it just works. Business software is very different. Business software is a long process. The way it usually starts is with a Request for Proposals (RFP). In an RFP, an organization decides that they need software to accomplish one particular thing. Maybe that is moving the entire HR process into a computer system. Maybe it’s law student admissions. Maybe it is the bar exam. The organization writes up a document explaining what they need and makes that available to software vendors who would like to bid on it. A salesperson at a vendor will write up a proposal for how their software will meet the particular needs of the organization. Organizations might spend a month writing the RFP and might collect and review proposals for anywhere from a few weeks to as much as 6 months. They will hear sales pitches, watch demos, research the vendors, and ultimately they will make a decision to go with one of them.
Once a company selects a vendor, then the implementation process begins. Under normal circumstances, the first issue is scheduling. Software companies have a finite number of professional services technicians available who can go install and configure their particular software. Some companies supplement this with third parties but that can have problems of its own. Software companies will frequently book services engagements several months out so even if you bought the software in April, you might be waiting until June before you so much as hear from the company you purchased the software from. Companies will bend the schedule to accommodate important clients but there are still a finite number of these people.
Selecting the software and scheduling the engagement was only half the battle though. Once the engagement starts, organizations have to sit down with the vendor and design how this particular instance of the software will need to work to accommodate their needs. This too might take weeks or months after which the actual implementation of that design will surely take weeks or months and depending on the importance of the particular data being captured may require weeks or months of testing as well. And there are always things that you can’t account for in design or testing. There will always be quirks that occur when you put the software in the hands of actual users. Some of these quirks may be accidental like forgetting to provide the users with their passwords. Some of these quirks will be catastrophic like losing data while users are in the system as occurred in the Canadian Bar Exam a few months ago.
By this point, you’re probably wondering why I’m telling you so much about the software implementation process. It all comes back to the online bar exam.
An online bar exam from a purely technological standpoint is entirely possible. Many states already use computers in some fashion in the bar exam. There’s nothing that inherently makes the bar exam impossible to administer online, but the thing is these are not the circumstances under which the current in-person bar exam takes place. Under normal circumstances, if a state decided that they wanted to move their bar exam to be administered entirely remotely online, they would go through some version of the process I outlined above. They would request vendors bid to be the official vendor of the bar exam. They would spend months reviewing vendors, selecting a vendor, designing a solution, implementing it, and testing it extensively before it came anywhere near an applicant. But the states are not doing that.
The circumstance we are in is wholly unique. Some 24 states are all calling for vendors to meet this need at once. Those same states are at best planning to wait until October to administer an exam. The practice of law has been somewhat technologically behind for a while which does not bode well for decisions that require some significant technical literacy and expertise. Some states are making these decisions without a CIO or a competent senior technical expert involved. Some states are making these decisions based solely on the reputation of software vendors without engaging in a thorough and transparent open bid and review process.
The vendors are then rushing to meet these needs as well as the needs of their other customers. This environment of COVID-19 is the single greatest technological adoption these vendors are likely to see. They will inherently have to overpromise or risk losing customers to their competitors. In educational circumstances, they will have to undercut each other on the bids which means they will likely be forced to cut corners to deliver. They have too many of these customers asking for the same thing on the same timeline which means that inevitably they will either have to shorten an already far too short timeline or they will have to prioritize those customers and delay some of them.
This would be an impossible ask under the best of circumstances and these are surely not the best of circumstances. But we need to be honest about this. We need to be honest about our expectations because this is people’s livelihoods we are dealing with. There are a lot of potential problems with an online bar exam both ethical and logistical, but the logistical problems facing an online bar exam this year are insurmountable and it is not fair to these incredibly dedicated applicants to make them wade through this uncertainty and base their careers on this.
The States need to grant diploma privilege for these applicants and give themselves time to properly reassess what the future of bar admission is.
Author’s Note: Special thanks to Vincent Bezares, a Diploma Privilege Advocate who assisted with the research for this piece.
For more information on this topic, please see the recording of the webinar hosted by JURIST and United for Diploma Privilege on July 9th entitled: “Diploma Privilege and the Future of the Bar Exam.” Please also see the JURIST Editorial Board’s statement on Diploma Privilege entitled “The Diploma Privilege Manifesto“.
Tim Zubizarreta is a rising 3L at the University of Pittsburgh School of Law and JURIST’s Managing Editor. He is interested in labor and employment law, particularly in the technology and entertainment industries.
Suggested citation: Tim Zubizarreta, Rome Wasn’t Built in a Day and Online Bar Exams Can’t Be, JURIST – Student Commentary, June 27, 2020, https://www.jurist.org/commentary/2020/07/tim-zubizaretta-online-bar-exam/.
This article was prepared for publication by Gabrielle Wast. Please direct any questions or comments to her at commentary@jurist.org
