As you know, Above the Law is a widely read legal website. You may know that we’ve written a few articles on “Diploma Privilege,” the notion that graduation from law school should be the bar passed to allow freshly minted JDs to practice law rather than… the bar. Said notion has been discussed positively. And while none of us know if South Dakota’s Supreme Court Chief Justice Steven Jensen has read ATL articles in favor of diploma privilege, we can assume that he hasn’t found them persuasive. From Dakota News Now:
South Dakota is short on lawyers, and it is impacting lower income, rural defendants more than anyone else in the state.
But for State Supreme Court Chief Justice Steven Jensen, it is not enough to give University of South Dakota Knudson School of Law graduates a ticket out of the Bar exam.
“It would have admitted any applicant graduating from the USD Knudson School of Law into the legal profession without a separate assessment of their competence to practice law,” Jensen said of the idea during his annual State of the Judiciary address. “It was concerning to the Court that the bill was introduced without any notice or prior discussion with the Court, the State Bar, or the Law School concerning the impact this change might have on the legal profession, or more importantly, the public that the current admission process is designed to protect.”
I would certainly hope that this would have an impact on the legal profession and the current admission process, as the Justice has functionally admitted that law school is currently not geared to assess competency to practice law. Need that be the case? I mean, bar prep is traditionally an 8-10 week affair. Would it really be that hard for a school to dedicate a semester or so of classes to ensuring that their students are “competent to practice law” before letting them run rampant? Is it that impossible to imagine a rehaul of our education system that is not so easily exploited by a post-certification testing process that, on top of contributing to recurring health risks and technological mishaps — like not letting someone sit for a test because of their spicy fingertips — disproportionately prevents historically disadvantaged groups (read: broke and non-white students) from being able to practice law?
Critique of the conditions that give rise to a need for the bar exam aside, Justice Jensen’s view is not uniform. Rep. Mary Fitzgerald of South Dakota has been a vocal advocate for diploma privilege.
Part of what makes Fitzgerald’s argument interesting is that it goes to Chief Justice Jensen’s point about assessing competency to practice law. Fitzgerald claims that the bar has no questions that pertain to South Dakota law. At like… all. And she’s probably right.
Her criticism of the requirement comes at a timely juncture for South Dakotans.
Fitzgerald and other proponents point to the lawyer shortage, and the rigors of South Dakota’s lone law school as a reason to allow students graduating from there to go straight into practicing.
“The shortage of lawyers gives the appearance of two tiers of justice, one for the rich and powerful and one for the average of citizen,” Fitzgerald said in a statement to KOTA Territory/Dakota News Now.
I think that most people would agree without much persuasion needed that not being proficient in New Jersey law shouldn’t necessarily bar you from practicing in Wyoming. I think that it is a fair question to ask why South Dakotan JDs shouldn’t be able to practice in their state if they don’t pass a test that asks them no questions about how the law works in their state.
There is an easy ad hominem to make here — Representative Fitzgerald reportedly only cares this much about diploma privilege because her daughter has failed several times.
Even if this is the case, resentment can occasionally be directed toward the greater good. It is also worth mentioning that bar bashing is not reducible to a small group of vocal losers — there are plenty of JDs who, freshly after passing the bar, decided that no one should be subjected to that experience ever again.
While the fate of this bill is undetermined, something definitely needs to be done on behalf of South Dakota’s “Bar Exam Victims.”
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at email@example.com and by tweet at @WritesForRent.