Access to justice is a public good. The denial of a public good injures the public. Almost 63,000 lawyers were admitted to the bar of a second state by admission on motion1 or UBE transfer2 between 2017-2021. Every one of them is categorically disqualified for reciprocal licensing by the California Supreme Court 100% subjective reinvent the wheel bar exam.3 Many are also categorically disqualified by the Oregon and Arizona Supreme Court’s tit-for-tat admission rule.4 The reciprocal licensing numbers are increasing every year.

The “justice gap” is self-created wound. U.S. Supreme Court Justice Neil M. GORSUCH, “Bridging the Affordability Gap: It’s Time to Think Outside the Box,” 45 Wyoming Lawyer 16 (Apr. 2022) underscored:

At some point just about every American will interact with our civil justice system. Whether it happens because of an eviction, a custody battle, a tort suit, or a contract claim, one thing is clear: Legal disputes are just as much a part of life as death and taxes. Yet today, legal services are increasingly difficult to obtain. A 2017 study found that low-income Americans fail to obtain adequate professional assistance with their legal problems 86% of the time. The vast majority don’t even try to obtain professional help, and those who do are often turned away. According to another study, at least one party lacks legal representation in nearly 80% of civil cases in this country. The root cause for this state of affairs is not hard to discern: Legal services are expensive. Lawyers charge hundreds of dollars per hour for even the

2 Admissions to the Bar by Examination and by Transferred UBE Score, 2017– 2021 – National Conference of Bar Examiners (ncbex.org)

3 Cal Bus. & Prof Code §6062
4 A.R.S. Sup.Ct.Rules, Rule 34(f)

1 Admissions to the Bar on Motion, 2017–2021 – National Conference of Bar Examiners (ncbex.org)

simplest of legal services. Even a single legal bill can prove financially devastating to many Americans.

The California state imposts and taxes imposed on already licensed attorneys to take the attorney’s bar exam include: a registration fee of $214, moral character application of $551, laptop fee $153, attorney bar exam fee $983, moral character application $559, for a total $1,901.5 The Arizona state imposts and taxes imposed on already licensed attorneys to obtain tit-for-tat reciprocity include: administrative fee $160, moral character $300, motion fee $1,800, one day seminar on Arizona law $200, for a total $2,460.6

Obviously, the District Court local admission rules in the Ninth Circuit that adopt nonuniform state law are not uniform. Rosa Parks was famously denied a seat on a bus based on state law. If Rosa Parks were alive today and she was an experienced lawyer with five, ten, twenty, or thirty or more years of experience as a lawyer in good standing, she would be denied a seat at the bar of the District Courts in the Ninth Circuit based on state law. The argument Rosa Parks can take the entry level licensing test in California and Arizona and then if she pays the state taxes and imposts, and passes, she can sit at the front of the bar in the United States courthouse. However, federal law requires licensing tests to conform to the nationally recognized Standards for Educational and Psychological Testing, (2014). The Standards have been incorporated into federal law. 34 CFR 668.148(a)(2)(iv); AMERICAN SOC. FOR TESTING v. Public. Resource. Org, 896 F. 3d 437 (D.C. Cir. 2018), Affirmed by Georgia v. Public. Resource. Org, Inc., 140 S. Ct. 1498 (2020). There are three fundament testing Standards: Validity, reliability, fairness. For a licensing test to be valid it must also meet the interlocking reliable and fairness standards. These Standards are also incorporated by Federal Rule of Evidence 702.

As to validity, the American Bar Association (ABA) and Uniform Bar Exam Commission (UBE) are experts in testing and attorney licensing. They have concluded licensed attorneys are not a threat to the public and their prior license is substantive proof they are competent. Eighty percent of the states have adopted this

5 https://www.calbar.ca.gov/Portals/0/documents/rules/Rules_Appendix_A_Sched- Chgs-Deadlines.pdf#page=16
6 https://www.azbaradmissions.org/ex_feesdeadlines_aO2011-141

judgment. There is no evidence they got it wrong. The ABA and UBE have essentially concluded, without directly saying so in effect, that states should provide full faith and credit to the licensing acts, records, and judgment of competence of other states. Similarly, Federal Judicial Conference studies have concluded “(N)o one has yet devised an examination which will test one’s ability to be a courtroom advocate” and there is a correlation with experience and competence. Report and Tentative Recommendations of the Committee to Practice in the Federal Courts in the Judicial Conference of the United States. 79 F.R.D. 187, 196.

As to reliability there is undisputed material evidence that it “is almost impossible to get subjective graders to agree on bar exam scores.” See Geoff Norman, “So What Does Guessing the Right Answer Out of Four Have to Do With Competence Anyway?” The Bar Examiner, p. 21 (Nov 2008); Susan M. Case, “Licensure In My Ideal World,” The Bar Examiner, p. 27 November 2005. See Stephen P. Klein, “What Do Test Scores in Texas Tell Us?” (Published 2000 by RAND). Dr. Klein was the State Bar of California’s primary testing expert. He admits:

“Our research results illustrate the danger of relying on statewide test scores as the sole measure of student achievement when these scores are used to make high-stakes decisions about teachers and schools as well as students. We anticipate that our findings will be of interest to local, state, and national educational policymakers, legislators, educators, and fellow researchers and measurement specialists.”

The State Bar of California licensing test for already licensed attorneys is a high-stakes 100% subjective licensing test. It is not a valid or reliable test according to the State’s own testing expert, Dr. Klein. Furthermore, RAND Corporation statistical reports on the exam prepared by Dr. Klein, repeatedly and going back over thirty years, prove this putative licensing test has a standard error of measurement shoddier than .48. See Exhibit B-1-15. In other words, flipping a coin would be more reliable measurement. The industry standard for grader agreement requires .8-.9. Exhibit B 17 ¶ 7. There is no evidence the Arizona Bar exam for already licensed attorneys is more reliable than California’s licensing scam for already licensed attorneys.

The evidence shows the purpose and effect of these State Supreme Court imposed subjective entry-level licensing tests is to provide a wall against out-of- state attorney competition. This wall obstructs equal access to the United States Courthouse. The results of this putative licensing test are not admissible into evidence under Daubert and FRE 700 series. There is little difference between requiring Black citizens to pass a literacy test in order to vote than requiring already licensed attorneys to pass another subjective bar exam in order to exercise their citizenship rights in the United States courthouse.

As to fairness, if a licensing test is neither valid nor reliable, it is not fair. It is arbitrary and irrational. The ABA and UBE have concluded that it is not fair to require already licensed attorneys to take time off from work and reinvent the wheel. Many subjects of federal law are not tested on any State’s bar exam. The days when all lawyers practiced everything and were not specialists are long gone. PACER and COVID19 have revolutionized law practice in the federal courthouse. The Association of Professional Responsibility Lawyers concludes licensed lawyers should be able to represent their clients anywhere in the United States.

It is also fundamentally unfair to lump already licensed attorneys with recent law school graduates who have never practiced law because the cognitive science of expertise and expert performance proves excellence is the product of experience and that it cannot be predicted. See K. Anders Ericsson, Ed., The Cambridge Handbook of Expertise and Expert Performance (Cambridge University Press 2006). K. Anders Ericsson is the leading pioneer in this cross-disciplinary field. Cognitive scientists have concluded that it takes 10,000 hours to develop true expertise in any field, taking the brain this long to assimilate all that it needs to know to achieve true mastery. The science of expertise and expert performance proves that experts surpass novices, those new to a profession, in seven major ways: (a) generating the best solution; (b) pattern recognition; (c) qualitative analysis; (d) self-monitoring skills in terms of their ability and knowing what they do not know; (e) choosing appropriate strategies; (f) seeing and exploiting opportunities; and (g) cognitive effort, meaning they work faster, with less effort, and greater control. Id. at 27. See Exhibit E Cambridge Handbook of Expertise and Expert Performance.