Nicholas Ripley, J.D., a 2020 graduate of the American University Washington College of Law, discusses the integrity of the American legal system in the time of COVID, Black Lives Matter, and activism for diploma privilege...
Besides the fact that the legal system is an abstract entity incapable of possessing such anthropomorphic qualities, it has demonstrated a particularly bad track record for integrity. Some individual lawyers possess integrity; the law itself is a tool to be used for good or ill. But historically speaking, the mechanics of the American legal system have proven much more inclined toward corruption and oppression.
Yet, preserving “the integrity of the legal system” was among the reasons given by the Pennsylvania Board of Law Examiners in their request for the state supreme court to “administer the remote bar exam in October 2020 as currently planned.” This comes in answer to a King’s Bench Petition filed by Law Students for Equitable Responses to COVID-19, a group of law school graduates advocating for diploma privilege in Pennsylvania (author submitted a declaration of support to this petition but does not represent the group here). The “integrity of the legal system” defense is worth examining as all of the Board’s other arguments have already been rebuked.
The Board’s central claim is that the bar exam is necessary to assess “minimum competency” as a requirement to practice law. Available data indicates this claim is patently untrue, as multiple states currently allow attorneys to practice under diploma privilege without evidence of the obscure parade of horrors the Board foretells. Next, the Board assures its accommodations (technical and otherwise) are sufficient to fairly administer the remote exam. This argument has been widely debunked by applicants who have documented how the postponed, remotely administered exam unfairly discriminates against test-takers based on race, class, and disability; not to mention the software companies themselves, who have demonstrated (and outright stated) they are incapable of administering this exam. In response to the overwhelming evidence of technical malfeasance, the Board unironically cites to ExamSoft’s AI testing contract with Saudi Arabia—an authoritarian kingdom with one of the worst human rights records in the world and a known propensity for cyber-attacks.
The Board claims its role is to protect the public from unethical representation by recommending only individuals of “requisite character” for licensure; presumably, that character has integrity. It is unclear what exact formula the Board uses to determine the integrity of its applicants, but it includes inquiries on mental health disabilities, substance use disorders, debt, and interactions with the criminal legal system. This mechanism has proven ill-adept at screening potential attorneys who might use the law in unethical, incompetent, or morally heinous ways, but it is remarkably effective at culling applicants from marginalized backgrounds. So, when evaluating the integrity of the legal system, it is worth enumerating its history.
The US legal system was designed to be an explicitly racist, classist, and sexist institution. Many groups have been categorically barred from accessing justice, making it more efficient (and accurate) to simply refer to it as generally oppressive. While perceptions of the legal system as an objective arbiter of truth and justice remain, the cracks in the façade are starting to deepen. For many historically oppressed groups, none of this is news; most of America’s most despicable crimes have been completely legal. From the colonizers to the Klan, the legal system has enabled some of the most abhorrent actors in American society. In Johnson v. M’Intosh to Plessy v. Ferguson to Korematsu v. United States, the legal system has promoted violence and oppression at the highest level. The legal system has endorsed class discrimination, unsustainable inequality, undemocratic corporatism, and the demolition of the political power of the working class. Distinguished members of the legal profession such as Jay Bybee, Harold Koh, John Yoo, Alan Dershowitz, and Rudy Giuliani have used their positions in the legal system to cause untold horrors domestically and abroad. This is not to say that virtuous actors cannot use the legal system to achieve positive change, but to acknowledge that any progress made in this regard occurs not because of the nature of the legal system, but despite it—often at great cost. While gatekeepers of the legal profession claim to be preserving the integrity of the field, it is difficult not to associate their conception of integrity with this legacy of violence and oppression. For many victims of the American legal system, this association has been made clear.
When addressing institutional oppression, it is important not to obscure the role of the actual institutions. The current societal upheaval America is experiencing is not merely an inconvenience to the legal system, but a direct result of it. Legal professionals are struggling to defend the myth of the legal system as a beneficent institution, or even a neutral one. And it is naïve to think the gross injustices of society can be repaired without some necessary demolition of the unjust power structures perpetuated within the legal system. This includes the undemocratically selected group of administrators entrusted to decide who is allowed access to the legal profession without any semblance of public accountability or government oversight. The Diploma Privilege movement is an instance of organizers asking nicely for changes to these power structures. But one way or another, those changes are coming. Incoming attorneys will remember those who stood in the way.
The rule of law in America is in one of its most fragile states. The social contract has been repeatedly breached by those entrusted with the power of law. The legal system would do well to uphold its end of the deal.
Nicholas Ripley, J.D., is a 2020 graduate of American University’s Washington College of Law.
Suggested Citation: Nicholas Ripley, The Legal System Has No Integrity, JURIST – Professional Commentary, September 04, 2020, https://www.jurist.org/commentary/2020/09/nicholas-ripley-legal-system-integrity/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at firstname.lastname@example.org
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.