The Professional Responsibility Case for Valid and Nondiscriminatory Bar Exams

Title VII protects against workplace discrimination in part through the scrutiny of employment tests whose results differ based on race, gender, or ethnicity. Such tests are said to have a disparate impact, and their use is illegal unless their validity can be established. Validity means that the test is job-related and measures what it purports to measure. Further, under Title VII, even a valid employment test with a disparate impact could be struck down if less discriminatory alternatives exist.Licensing tests, including bar exams, have been found to be outside these Title VII protections. But the nondiscrimination values that animate Title VII disparate impact analysis for employers apply just as fundamentally to attorney licensing through principles of professional responsibility and legal ethics.This Article examines the civil rights cases from the 1970s that established bar examiners’ immunity from Title VII. It then analyzes our professional duties of public protection, competence, and nondiscrimination that require valid, nondiscriminatory attorney licensing tests, suggesting that the Title VII framework be borrowed for this purpose. The Article then undertakes that scrutiny, presenting evidence of the disparate impact of bar exams and their unproven validity, and suggesting feasible, less discriminatory modifications and alternatives. In other words, core professional responsibilities require consideration and adoption of valid licensing mechanisms that can reduce any disparate impact in who we permit to enter our profession, and who we exclude

What Law Must Lawyers Know?

What constitutes the body of legal knowledge that every lawyer mustpossess? I used to know, or think I did, but no longer. I suspect no one elseknows either. This difficult question is not just an intriguing theoreticalmatter but also an urgent, practical problem. Licensing regulators assumethat minimal competence in any profession requires certain fundamentalknowledge, skills, and abilities.Bar examiners must determine whatknowledge, skills, and abilities are necessary for minimum competence asan attorney and then design tests and other requirements to attempt to alignlicensure with minimum competence. Today’s tangled attorney licensingpuzzle cannot be solved without better answers to this foundational question:what law must every lawyer know

New York Leads from the Middle: Crowdsourcing the Bar Exam Cut Score

In this article, Prof. Howarth urges states to move to a uniform cut score on the Multistate Bar Exam (MBE) through the use of crowdsourcing

Executing White Masculinities: Lessons from Karla Faye Tucker

Gender is a constant struggle. Throughout our lives, we contend with multiple unstable and oppositional social constructions of gender, or hierarchies of masculinities and femininities. Knowing, or trying to know, who is male and who is female, and how men and women should act, is a major part of the structure of our identities, our societies, and our democracy. These gender questions are not separate from race or class; together for example, they shape what is expected of a poor young White man or a middle-class, African American grandmother. Racialized and class-based, gender helps to tell us who is frightening, who is powerful, and who is human. Condemning females does not disrupt the masculinities of capital punishment, but condemning femininity does. This Article addresses, in turn, the gender in punishing by death, the gender of those chosen for death, and the gender-bending execution of Karla Faye Tucker. By understanding what Justice Blackmun called the “machinery of death” as repeated performances of White masculinities, we might loosen our attraction to capital punishment and to hierarchies of racialized gender

Writing Specialist as Rescue Club

In this column in The Second Draft, a biennial online publication of the Legal Writing Institute featuring essays, book reviews, and shorter articles of interest to legal writing professionals, Professor Joan Howarth discusses the importance of her Writing Specialist, a key member of her faculty while Dean of Michigan State School of Law

Recruiting Sexual Minorities and People with Disabilities to be Dean

As our day-to-day work lives make abundantly clear, a law faculty is a many-headed creature: an assortment of people with a variety of interests, strengths, foibles, personalities, and identities. Within the legal academy, a dominant consensus acknowledges that a strong faculty embodies diversity along multiple axes, including, for example, race, gender, religion, age, political ideology, research and teaching methodologies, and subject matter expertise. The dean, however, stands alone, and stands above. Thus, issues of expectation, representation, comfort with and fear of difference operate quite differently when deans are selected, and when they do their jobs. The dean exercises authority over the entire institution. The dean also represents the entire school, and by common metaphor, is said to be the face of the law school. This symposium\u27s focus on diversity in deaning is important because notions about identity inevitably shape how a dean\u27s authority, competence, vulnerability, power, trustworthiness, and strength are interpreted, understood, and experienced. Imposed identity issues play out differently when the choice is not just about a colleague, but instead about the person in charge. This Essay discusses diversity in deaning as it pertains to two identity categories: members of the lesbian, gay, bisexual, and transgender (LGBT) communities, and people with disabilities

Toward the Restorative Constitution: A Restorative Justice Critique of Anti-Gang Public Nuisance Injunctions

Gang members from elsewhere congregated on lawns, on sidewalks, and in front of apartment complexes at all hours. They displayed a casual contempt for notions of law, order, and decency -- openly drinking, smoking dope, sniffing toluene, and even snorting cocaine laid out in neat lines on the hoods of residents\u27 cars. San Jose prosecutors responded by obtaining and enforcing a broad injunction against the gangs and their members, based on the finding that the gangs\u27 activities constituted a public nuisance. California prosecutors have sought such anti-gang public nuisance injunctions since 1987. Their constitutionality was in doubt for ten years until People ex rel. Gallo v. Acuna, in which the California Supreme Court upheld this injunction as a lawful and important means to hold the gang members accountable and restore community to Rocksprings. This Article critiques anti-gang public nuisance injunctions through the lens of restorative justice principles. The rhetorical justification for anti-gang injunctions is strikingly similar to the rhetoric of the restorative justice movement. Restorative justice rests on the tenets that any crime is injurious, and that the best response is one that heals the injuries caused to the victim, the community, and the offender. The anti-gang public nuisance injunctions share significant similarities with typical restorative justice programs: both are deviations from traditional criminal court (or even juvenile court) models; both privilege participation of affected communities; both re-conceive lawbreaking as injury; and both, at least in theory, are based on notions of redress of those injuries. Further, both provoke serious opposition from civil libertarians. Fundamentally, though, the anti-gang public nuisance injunctions undermine the promise of restorative justice as deeply as they weaken traditional rights-based protections, and the betrayal of the goals of restorative justice may be of even greater consequence

Shame Agent

As a nation, we have recently experienced a significant positive shift in norms against casual campus sexual violence. These changes are perhaps as dramatic as the attitudinal shifts over recent decades regarding drunk driving or cigarette smoking. In a world in which masculinity is too often associated with sexual conquest, and women still suffer under intense and conflicting pressures regarding their sexual behavior, pushing this potential transformation forward is both difficult and necessary. Enforcement of Title IX protections has become a crucial driver of much of this change. This is an account of some of what I learned as a participant in Title IX sexual misconduct enforcement at my law school and university. As with drunk driving and smoking, the newly strengthened norms against nonconsensual campus sex result from a combination of public activism, new laws and regulations, new enforcement of existing laws and regulations, and purposeful steps taken by strong institutional leaders. Michigan State University (MSU) exemplifies all this. Indeed, my optimism on these issues is grounded in my experience at MSU. MSU is a particularly good source of relevant lessons. MSU features some aspects of campus culture that have been found to be most related to sexual violence, including strong Greek life and heavy presence of athletics

Review Essay: Feminism, Lawyering, and Death Row

Representing men on death row is confounding, but not without reward. This lawyering work has taught me at least two lessons, the subjects of this essay. First, capital punishment--our attempt to use legal procedures to kill people fairly--is a feminist issue, or should be. Second, death row representation is too big a job for lawyers; we need to recruit poets. To develop these ideas, and perhaps to convince you without requiring you to undertake the same path to these conclusions, I am appropriating novelist Beverly Lowry\u27s stunning new book, Crossed Over: A Murder, A Memoir. Crossed Over is the story of Lowry\u27s friendship with Karla Faye Tucker, a woman on death row in Texas. Lowry is the poet on Tucker\u27s team. The publisher instructs booksellers to place Crossed Over on the “Memoir” or “True Crime” shelf. If shelves were built for “Insights into Death Row Representation,” or even “Illustrations of Relational Feminism,” Crossed Over would belong there as well

Empirical Studies Contribute to Death Penalty Debate

At a time of renewed scrutiny of capital punishment, Nevada lawyers may be interested in some of the recent legal scholarship on the death penalty based on social science data, rather than on legal philosophy or constitutional theory. Three projects are of particular interest: Professor James Liebman\u27s work on errors in death penalty cases; the National Jury Project\u27s data about how jurors decide capital cases; and David Baldus\u27 recent study of peremptory challenges in capital cases