After a colossal screw-up with the July 2007 New York bar exam — in which some of the essay answers were lost for hundreds of people who had typed them into laptops — the New York Board of Law Examiners (BOLE) is taking action. Now they will demand a liability waiver that protects them from future screw-ups. This follows on the heels of the examiners claiming to have graded exams based on approximations, some of which have been called into question.

Why demand the waivers? Because getting liability waivers is apparently much easier than actually fixing the problem. This way, BOLE can hire a new software company and not worry about actually vetting the technology. If there is another screw-up, they can just waive the piece of paper around in the poor test-takers face and say, “Sorry!”

Now BOLE hasn’t been sued, mind you, but that doesn’t matter. They still want their liability waiver that will absolve them of any actual responsibility for doing their jobs.

The enforceability of such a waiver, I think, is probably pretty doubtful. I say that even though I haven’t seen it (only a small part is quoted in the article). First, it is against public policy in New York to enforce liability waivers regarding negligence. Second, it isn’t exactly as if the test-taker can go to a competing agency to be admitted to the New York bar. They are the only game in town, and I don’t see how they can use that leverage to coerce an agreement to waive their own liability. Public policy stands in the way, though the argument could be made that the test-taker can write the answer out by hand. Nevertheless, I see this as a problem for the BOLE to try to absolve themselves of liability when they run the show.

Now here’s a thought for the Bar Examiners: Maybe you folks should just make sure the software you use works?