Wednesday, October 4, 2023
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Bar Stats

The State Bar of California has a psychometrician.


Because there are so many psycho lawyers?

I don't know, but it's one of the interesting revelations in briefs submitted to the California Supreme Court in a dispute over whether to release bar exam data to a researcher.

There may be a ruling in Sander v. State Bar by the time you read this - oral arguments were last week - but until then you can be thoroughly entertained, or mystified, by the briefs on both sides.

This case is thematic of our political times - I want to hate both sides.

Let's start with the Bar's brief.

Here's one of its arguments for not revealing the information it collects, which it doesn't want anyone to see even though no Bar applicant would be identified: "(T)he promise of confidentiality and concomitant explanation for why the data is being requested create a right of privacy that would be violated by public disclosure of this data."

So they shouldn't have explained why they wanted the data?

It's not confidential until someone wants it.

Maybe if they'd had another explanation for the request, it would have been OK.

The California Bar, I should note here, collects all sorts of information about Bar applicants' education and ethnicity.

And then keeps it secret.

Maybe it needs the data to keep the psychometrician amused. I don't know.

The plaintiff, by the way, is not seeking names or personal information - just general statistics. The Bar brief, though, says a "promise of confidentiality" creates "a right of privacy that would be violated by public disclosure of this data. That is true whether or not the Court accepts Plaintiffs' dubious claim - which contemporary computer science refutes - that data can safely be 'de-identified' so that individual applicants' information is not exposed to the public."

Contemporary computer science?

Umm ... Apparently, whoever wrote that sentence thinks that if you turn over a bunch of numbers, some computer magician will be able to get names and addresses from them.

The State Bar might want to consider hiring some better computer techs.

Now let's look at the other side.

Can you spot the obvious problem?

Yeah, it's the guy requesting the information.

Maybe I'm cynical - OK, definitely I'm cynical - but it seems to me that if the request came from someone a tad less controversial, there might not be any argument in court about this.

The researcher is a guy named Richard Sander, a UCLA law professor who for years has been arguing that getting black people into good law schools is a horrible disadvantage for them.

I don't know whether this guy's idea makes any sense, but a lot of people disagree. See, for example, a piece on Slate a few years back.

Sander's theory is that affirmative action creates a "mismatch" for minority students, who can't keep up in the better schools.

Hmm ...

OK, I can see how someone struggling with basic math might have trouble in a calculus class. Definitely some mismatching there.

But law school? Don't they teach the same laws everywhere?

Is there a different Constitution taught at Harvard? Maybe you don't get to study the Bill of Rights unless you go to an elite school.

I can see why a few people at the State Bar might have been taken aback at the thought of working with a guy who wants to decrease minority enrollment at top law schools.

Still, are there good arguments for the need for the Bar's stats?

This is from the plaintiffs' brief: "(S)ince 1976, the State Bar has published more than 90 substantive analyses and studies using information from the admissions database."

Maybe Sander should just read them.

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