U.S. Jurisdictional Approaches to the Bar Exam During COVID-19: Why We Desperately Need Diploma Privilege

UPDATED 08/26 with this because the numbers are so horrifying that it needs to be at the top of the post:

CAN WE PLEASE DISCUSS THE FACT that Examsoft has not been used for a remote bar exam without major issue yet, even with just 1 jurisdiction/800 test takers (Michigan), and yet, 18 JURISDICTIONS plan to use it simultaneously to administer the test to OVER 30,000?! I just ran these test taker numbers (which are quite low, we're missing numbers from numerous jurisdictions offering remote examsoft bar exams) using a spreadsheet of info collected by the Diploma Privilege for Connecticut team and I'm frankly just...in jaw-dropping awe at this.

Let me run further math for you on that. 800 test takers on a remote bar exam in one jurisdiction (Michigan, that still had a significant issue when many users were locked out for 10-37 minutes on the first day of exams) is less than 3 PERCENT of the planned test takers who will be using examsoft to take remote bar exams on October 5-6. And again, those numbers are very low, as I don't have test taker numbers for Arizona, Idaho, Georgia, Massachusetts, Pennsylvania, Tennessee, or Texas (which alone historically has around 3,000 test takers!!).

THIS IS INSANE. THIS IS ABSOLUTELY RIDICULOUS. HOW CAN ANYONE THINK THIS IS REASONABLE OR GOING TO WORK.

When bar exam software has a significant issue the first time you use it in a remote setting, you don't go and then use it again for a remote use setting FOR OVER 37.5 TIMES THE PREVIOUS TEST TAKERS. This is BREATHTAKINGLY horrifying.

ORIGINALLY POSTED AUGUST 11, 2020

Quick Introduction (before getting into specific jurisdictional approaches):

The Normal Stress of the Bar Exam (pre-pandemic)

Let me start this out by noting that even in non-pandemic times, the process of studying for and taking the bar exam is an inherently stressful experience, both emotionally and financially. Each jurisdiction in the United States has different requirements for acquiring a legal license, but generally, you need: 1) a juris doctor degree acquired from a law school (a 3 year course full time and 4 years part time), 2) a passing grade in your jurisdiction on an ethics exam (often the Multistate Professional Responsibility Examination, or MPRE), 3) pass a Character and Fitness screening process/background check, and 4) pass the bar exam.

I’m not going to delve deeply into the huge expense of all of these items right now, but trust me when I say it’s a lot of money. The bar exam in Illinois, for example, costs $950 to take, and to properly prepare for it, you pretty much HAVE to pay for a professional bar prep program, which generally run $1,699+ (many of the big courses are over $2,000). It’s highly advised that you study full-time for the bar exam for around 2 months, and /don’t work/. The bar exam usually runs for 2-3 days and is only offered twice a year (and in some jurisdictions, only once a year). You generally won’t find out whether you passed or failed the bar exam for many weeks to many months afterward. If you don’t already have a job offer from a firm or an agency secured (contingent on you getting that licensure), you have to start job hunting without knowing whether you’ll be licensed or not. If you fail, you have to go through the whole process again, spending more money and time to pursue that passing score.

So even in the best of times, the bar exam process is incredibly expensive, stressful, and can cause a huge amount of financial hardship and uncertainty for test takers.

Bar Exams During a Pandemic

In the COVID-19 world we live in now, there are even more issues. Many jurisdictions have changed their bar exam plans multiple times, sometimes only a week or so before the original date. This causes a huge amount of mental and financial stress on test takers, as they now have to figure out how to support themselves for another 1-3 months until they can take the test.

Financial Concerns: Can they make their money last? Do they need to get a job to survive (against almost all bar prep advice)? If they search for a job, will they even be able to find one (there is a global recession on, after all)? If they already secured a job offer at a firm or an agency, is that offer still good (many businesses and governmental organizations have had to rescind their offers due to - recession, uncertainty of when law licenses will be acquired)? In some jurisdictions, like Delaware and Palau, the 2020 exam has been cancelled altogether, so test takers in those areas now have to figure out how they can make it through the next YEAR without a law license that will allow them to practice in their field.

Mental and Physical Health: Mental and emotional health issues are on the rise for everyone right now, given the pandemic and a global recession. Anyone who’s dealing with more immediate troubles, such as unemployment, illness or death in their families, and possible eviction, is going to be struggling even more. This constant stress and anxiety has a huge impact on a test taker’s ability to focus or study. In addition, the uncertainty behind when, where, and how a bar exam will be held means that it’s difficult for test takers to actually plan their studying (remember, several exams have been postponed or cancelled at the last minute). The bar exam tests such a wide variety of subjects that generally, test takers have to cram everything in their head over two months and hope that they reach the apex of that information curve right at the exam time, right before they forget it all (it’s basically impossible to hold on to all that knowledge for long). All the bar prep courses are designed to fit within that two month study period; what do you do when that two months extends to three, four, or five months? How do you retain what you’ve learned when you don’t know when those exams will happen?

Now let’s get into specific issues with each individual approach.

Quick disclaimer: I got almost all this information from the NCBE and plan to update it as I go with more information from various news sources. I don’t know the ins and outs of every jurisdiction, so there may be some outdated information on this. I am personally barred in Illinois, so I’m most familiar with the issues there. As you’ll see, this is a very complicated issue that jurisdictions are dealing with in a variety of different ways, and it’s all changing very quickly, so if anything is outdated or inaccurate, I apologize. You can always give me corrections via comment or via email at RachaelDickzen@gmail.com.

Almost all information here is from the National Conference of Bar Examiners, compiled 08/08/2020 from “July 2020 Bar Exam Status by Jurisdiction” (table form, broken out by date of exam)) and “July 2020 Bar Exam: Jurisdiction Information” (map and chart, broken out by jurisdiction)

UPDATED 08/11, 08/13, and 08/26 with new information [underlined, with sources linked]

Note 08/26: The Uniform Bar Examination is really catching on in recent years (seriously, I so wish this was adopted by Illinois when I took the bar exam there in 2015) and in normal times, test takers who pass the UBE can transfer their scores to other UBE jurisdictions, if their score is high enough (jurisdictions can set their own passing scores). It has now been adopted by 37 U.S. jurisdictions (out of 56). The NCBE is allowing two additional UBE test dates for jurisdictions offering it, but it appears that UBE scores will only be transferrable if they’re offered in person. If I say an exam is “for local admission only” that scores from that exam will not be transferrable to any other jurisdiction.

1.      Jurisdictions who gave an in-person July bar exam

· Arkansas, Colorado, Iowa, Mississippi, Missouri, Montana, North Carolina, North Dakota, Northern Mariana Islands, Oklahoma, South Carolina, South Dakota, West Virginia, Wisconsin (UPDATED 08/13/2020: The Wisconsin bar exam was for test takers who went to out of state law schools. Graduates of in-state law schools automatically get diploma privilege in Wisconsin. One of my Phi Alpha Delta sisters Alicia Linzmeier also reported to me that someone in her testing room in Wisconsin reported COVID symptoms to the state supreme court but that the court did not notify anyone.)

Health Concerns: Bar exams, particularly in larger jurisdictions, often have hundreds (maybe even thousands?) of test takers in one large space, like a stadium or a conference center. Here’s a photo of what the bar exam looked like in Chicago when I took it in July 2015. Yes, it’s just as insanely intimidating as it looks. This was actually one of two locations for test takers in Chicago then.

Reports that have come in from various jurisdictions that gave in person July bar exams have been…concerning. All the usual pandemic concerns apply here: Is everyone there wearing a mask? Is social distancing being enforced? However, the very high stakes of a bar exam, the fact that this exam is offered only 1-2 times a year, and the huge expense and time commitment involved in studying for it means that there is a rather high incentive for test takers to go to take the bar exam even if they’re feeling sick or have tested positive for COVID-19. Although jurisdictions were taking test takers’ temperatures, it’s totally possible that someone was missed.

I also saw lots of reports from test takers that social distancing was NOT being enforced and that they were really uncomfortable with how close they were to other people but….what could they do? They really didn’t have any choice in the situation. Keep in mind most bar exams ban you from having a phone anywhere near you; you definitely have to leave it way far in the back of a room or sometimes even at home. There’s often no way to call for help or document what’s happening.

It’s a little too soon yet to determine if people got sick from in person bar exams yet, but there was a report that came out immediately after the Colorado bar exam indicating that a test taker had tested positive from COVID-19 that advised everyone in a specific room to get tested. And seriously, how can you concentrate on one of the most important tests in your life while you’re worrying about whether you’ve contracted a highly contagious disease that’s killed over 163,000 people in the US and whether you might now be carrying it home to your family?

Administrative Concerns: In pandemic times, you obviously can’t have that many people crammed into one room and certainly not that close together at tables, so you’ll need more rooms, more spaces, and more proctors to administer the exam. So you’re bringing in more people, more places, and more passing in hallways to get to the various locations. Administratively, it becomes even more complicated.

2.      Jurisdictions planning to give a delayed in-person bar exam

· September – Puerto Rico (Although the NCBE website actually says that Puerto Rico gave its exam in July, I spoke with a lawyer in Puerto Rico on Saturday and found out that that is definitely NOT the case. Thanks for informing me, Irma Morales! Sorry, I haven’t been able to nail down the exact date yet because the website is all in Spanish, but I’ll try to figure this out soon).

· September 9-10 – Alaska, Guam, Hawaii, New Mexico

· September 30-October 1 – Maine, Rhode Island, Utah

· July and September 9-10 - Kansas, Minnesota, Nebraska, Virginia (one-day exam, Sept. 10), Washington

· July and September 30- October 1- Alabama, Wyoming

· July and October 5-6 - Arizona (updated 08/26: applicants could choose to attend the in person July exam, which would be eligible to transfer to other jurisdictions using the uniform bar exam [UBE] or a remote exam in October, but the remote exam would only be valid for practicing in Arizona), Idaho,

Health Concerns: All the previously stated in-person health and safety concerns apply here.

Mental Health and Studying Concerns: Given how many states have changed their plans for in person exams with extremely short notice, exam takers are in a huge state of uncertainty as to whether they will actually be taking the exam on the stated date or not, which leads to all the financial uncertainty and studying difficulty noted in the introduction.

3.      Jurisdictions with multiple dates and multiple testing options

· Oct. 5-6 remote exam offered as an option in addition to in-person July - Arizona (Updated 08/26: the remote exam for local admission only), Idaho, Oregon (Updated 08/26: July in person exam [which was limited to a maximum seating capacity of 500 applicants], passing score reduced 8 points, October remote exam for local admission only)

· Oct. 5-6 remote exam offered as an option in addition to in-person Sept. exam - Texas (Updated 08/26: The Texas Board of Examiners said on August 24 that they will accept a score of 270 or higher earned on the October remote bar exam from the following jurisdictions: the District of Columbia, Connecticut, Illinois, Kentucky, Maryland, Massachusetts (Updated 08/26: has announced a potential backup of an open book exam), New Hampshire, New Jersey, New York, Ohio, Oregon, Tennessee, and Vermont)

4.      Jurisdictions that gave a remote July bar exam

· July 28 - Michigan

Remote Exam Software Issues: Michigan is the only remote exam that’s been given so far, and thus, was the ONLY jurisdiction with a remote exam in July. It still had a ton of problems. The software crashed on the first day, which locked out some test takers for 10 - 37 minutes. Examsoft tried to blame this on a cyber attack, but many think this was an excuse and the software was simply just overwhelmed. The board of examiners said afterward that no data was compromised and test takers affected were given extra time, but that probably wasn’t very comforting to the many test takers who were anxiously freaking out at the time. Keep in mind that when a glitch in 2014 kept bar exam takers from being able to file their completed first-day tests electronically (after the bar exam, not during it), Examsoft ended up paying $2.1 million to settle all the class-action claims that resulted. This crash took place, DURING the bar exam, and all those test takers had to get right back to answering all the questions immediately after it happened. I can only imagine the panic attacks that were happening.

Updated 08/26: PLEASE REMEMBER that Examsoft crashed when it was offering just ONE bar exam. Numerous jurisdictions are currently planning to use Examsoft to offer simultaneous remote exams. This is a train wreck just waiting to happen. I have added a new category at the bottom of this post specifically outlining which jurisdiction is using Examsoft simultaneously.

Recently (as in August 7, 2020), a large bar exam software company, Extegrity, said that it will not be providing software for remote bar exams this year. They stated that their software was not developed for large scale, simultaneous start high stake exams and that remote proctoring carries undue risk for the October exam.

5.      Jurisdictions planning to give a remote delayed bar exam (proctored) 

· October 5-6 – California (lowered passing score 50 points. Updated 08/26: The new passing score will not be applied retroactively to previous bar examiners.), Connecticut, District of Columbia, Georgia, Illinois, Kentucky, Maryland, Massachusetts (Updated 08/26: has announced a potential backup of an open book exam), New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Tennessee, Vermont, Virgin Islands

Note, added 08/26: A number of jurisdictions have entered into mutual reciprocity agreements for the portability of scores earned on the remote exam. These jurisdictions are: the District of Columbia, Connecticut, Illinois, Kentucky, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Ohio, Oregon, Tennessee, and Vermont. The Texas Board of Examiners said on August 24 that they will accept a score of 270 or higher earned on the October remote bar exam offered by these jurisdictions.

Remote Exam Administration and Safety Issues: Remote bar exams are generally proctored by a combination of people watching webcam feeds and cheating detection software. I’ll get into the cheating detection software more later in this section. From a practical standpoint, you need a LOT more people to watch a lot of individual webcam feeds than you do to watch hundreds of people shoved into one room.

From a safety and privacy standpoint, a lot of people are very creeped out by remote test-proctoring. Although I don’t think any bar exam plans to do it as intensely as is described in this article from The Verge, the situation is similar enough to pose concerns. I’ve read reports of female test takers receiving Facebook friend requests from their male exam proctors after they’d literally watched them take an exam for several hours as well, which is….extremely creepy.

Remote Exams’ Effect on Less Privileged Test Takers: Even assuming the software was entirely reliable and trustworthy, not every test taker has the same access to reliable internet, computers, webcams, or a private, quiet space. Remember we’re in a global pandemic and recession, plenty of people just don’t have the financial ability to rent a hotel room, or buy a new computer or webcam. Many jurisdictions have put very strict rules in place which ban any person or pet entering the room during the exam, which causes issues for parents or pet owners who can’t afford or find a sitter during a pandemic, or for those who live in small spaces with roommates or family members.

Remote Exams’ Effect on Test Takers with Disabilities: Some test takers who qualify for accommodations for the bar exam have been told they can’t get those accommodations remotely and need to come in for an in person test. In addition, rules designed to prevent cheating have resulted in bans on leaving the room, even for a bathroom break, which can pose issues for pregnant test takers or those with disabilities. One test taker who’s 8 months pregnant said that her accommodations request for bathroom breaks was straight up denied, so flexibility doesn’t seem to be a rule here.

Remote Exam Security Technology Bias: Cheating detection software is the big reason why test takers are banned from leaving the room and why any person or pet is banned from entering the room during the exam; it could throw up a flag and cause problems for you later even if your cat walks in (presumably most people’s cats are not experts on adverse possession law).

In addition, remote proctoring uses facial recognition technology to ensure that the same test taker is logging on to the exam for each module. Studies have shown that current facial recognition technology is biased towards a white male dataset and often causes issues for female test takers, test takers of color, or anyone who doesn’t conform to a traditional “white male” look as recognized by a computer. This can lead to problems and delays for bar exam takers trying to log on to take their test after a lunch break. And when you’re taking such a high stakes, expensive test, every moment counts.

·  TBD sometime in October - Florida (The planned test of ILG’s software on August 10 was postponed after numerous problems with it were identified after downloading it. UPDATE 08/26: The 08/19 exam was cancelled on 08/16. The Board will reschedule the exam for a date TBD in October; applicants may take the October exam or to postpone until February 2021. UPDATE 08/13: The Florida Board of Bar Examiners emailed applicants yesterday telling them not to download the software if they haven’t already done so. There have been numerous reports from Florida applicants over the past week that their banking/financial accounts were hacked shortly after downloading the software. ILG has apparently been dismissing these complaints as unconnected.)

6.      Jurisdictions that gave a remote delayed bar exam (open book, non-proctored)

· August 4 - Indiana (one-day exam) 

This entire approach was developed in response to the “repeated and unforeseen technical complicates” that resulted when Indiana tried to test its bar exam software from ILG in July.

·  August 11-12 – Nevada [UPDATED 08/11, shortly after posting this blog, i just learned that Nevada also decided to offer their exam as an open book non-proctored exam. Nevada used the same vendor that Indiana used and Indiana’s test caused Nevada to push back its exam two weeks. Some test takers reported that there were still issues with the software used by Nevada during practice sessions.]

·  August 24 or October 10 – [Louisiana UPDATED:08/13- Louisiana gave diploma privilege to recent law school graduates, but this left out ~300 people, such as those who already have a license in another state or those who are taking the Louisiana bar after previously failing it. Those who do have to take the Louisiana bar exam will now take an open-book test that they can submit via email, without live monitoring or proctors. The Louisiana Supreme Court stated that if it’s found that someone got help from another person during the exam though, that person will automatically fail and be banned from taking the exam for five years.]

7.      Jurisdictions granting extensions of supervised/provisional practice or creating new supervised/provisional practice rules

· Alaska [updated 08/26], Arkansas, California, Colorado, Connecticut, Florida [updated 08/26], Georgia, Idaho [updated 08/26], Illinois, Kentucky, Massachusetts, Missouri, Montana, New Jersey, New York, Ohio, Pennsylvania, South Dakota, Tennessee, Vermont

Disclaimer: This is the approach I know LEAST about. Jurisdictions are taking very very different approaches toward this - in some places, it may just be an extension of supervised practice student license rules. Other jurisdictions may allow for more autonomy on the part of the temporarily licensed lawyer.

Financial Issues: Either way, this really isn’t a satisfactory approach. Those with temporary licenses are still going to have to take 1-2 months off work in the future to study for the bar exam, and given the state of the world, it’s hard to guess when that time will be. Employers are going to be really disinclined to hire someone knowing that they’re going to have to give them that time off in the future for them to remain licensed. In addition, employers will definitely use a provisional license as an excuse to pay those holding that license less.

8.      Jurisdictions granting diploma privilege

· Diploma Privilege as an option, may take in person exam – Louisiana, Oregon (Updated 08/26: July in person exam, passing score reduced 8 points, October remote exam for local admission only), Washington

· Diploma Privilege alone – Utah

· Already had local Diploma Privilege - [UPDATED 08/13] Wisconsin already allows graduates of the two ABA accredited law schools in the state to seek admission to the state bar without having to sit for a bar exam and has done so since 1870. Graduates of out-of-state law schools must still take the bar exam to be admitted there (the state HAS denied a petition for diploma privilege from out of state students taking their bar).

I, obviously, support diploma privilege as the best option of all of these approaches. But even this option has numerous issues with it. Will employers accept licenses acquired through diploma privilege as valid or good enough? Will other states grant reciprocity? These concerns are real enough that Louisiana, Oregon, and Washington is still offering bar exams as an option to graduates who are concerned that diploma privilege won’t be enough.

Administratively - is it only accredited law school graduates that get diploma privilege? What happens to graduates of an unaccredited law school? Will those graduates alone be forced to take the bar exam?

Some people have voiced concerns that we’ll have unqualified lawyers if we grant diploma privilege. I personally think this is ridiculous, the bar exam tests memorization and short term recall far more than your actual ability to practice the law. Legal practice is almost always open book and you’re rarely going to be put in a situation where you need to spout off memorized facts and laws at a moment; even when that situation comes up, you’re likely to have ample time to prepare.

9.      Jurisdictions that have denied petitions or requests for diploma privilege

·         Alaska, Idaho, Illinois, Minnesota, Missouri, Nebraska, Nevada, North Carolina, Ohio, Pennsylvania, and Tennessee 

10.  2020 Exam cancelled

·         Delaware, Palau

Test takers in both of these jurisdictions will have to wait until July 2021 to take a bar exam and pursue licensure. This will obviously lead to lower pay and potential inability to get a job in the field you’ve trained for. Test takers will have to take 1-2 months off work next year to study for the exam, which will make employers pretty unhappy. Overall, it just leaves a lot of test takers in limbo.

ADDED 08/26: Bar exam software breakdown

I got my info from the brilliant Diploma Privilege for Connecticut’s spreadsheet, available over here as a Google sheet, so it’ll be updated a lot faster than this website if anything changes.

Examsoft on July 28: Michigan (800 test takers - crash which locked many users out for 10 - 37 minutes)

ExamSoft on October 5-6: Arizona, California (12,000 test takers), Connecticut (750), District of Columbia (1,100), Georgia, Idaho, Illinois (~2,200 based on previous commentary), Kentucky (350), Maryland (1,100), Massachusetts ( has announced a potential backup of an open book exam), New Hampshire (117), New Jersey (2,000), New York (8,000), Ohio (885), Oregon (300 person cap), Pennsylvania, Tennessee, Texas

ILG on August 11-12: Nevada (the exam was supposed to happen on July 29, but the test was pushed back by two weeks after defects emerged in an ILG beta test in Indiana. Nevada ultimately used ILG, but an earlier version of the software that eliminated features that have caused problems recently, most notably the verification and online streaming features. The exam was technically open book, but test takers on Twitter stated that given the short time for each essay, this didn’t really factor into how they took the exam. It does appear that Nevada’s bar exam occurred with relatively few issues.)

Software Failures and Issues so far:

Indiana planned to use ILG in July but abandoned the software completely after “repeated and unforeseen technical complicates” resulted when during a software test. Indiana ultimately conducted the bar exam open book via email.

[repeated from where I said it above in the post so feel free to skip this paragraph if you read that already] Michigan was the first jurisdiction to conduct a remote bar exam, on a day when no other jurisdictions were conducting it. The software crashed on the first day, which locked out some test takers for 10 - 37 minutes. Examsoft tried to blame this on a cyber attack, but many think this was an excuse and the software was simply just overwhelmed. The board of examiners said afterward that no data was compromised and test takers affected were given extra time, but that probably wasn’t very comforting to the many test takers who were anxiously freaking out at the time.

Florida planned to use ILG, but completely cancelled its August bar exam with three days to go after some pretty insane downloading issues resulted in numerous reports of test takers’ banking/financial accounts being hacked shortly after downloading the software. ILG has apparently been dismissing these complaints as unconnected.

/ahem/ let me repeat my numbers and rant from the top of the post.

CAN WE PLEASE DISCUSS THE FACT that Examsoft has not been used for a remote bar exam without major issue yet, even with just 1 jurisdiction/800 test takers (Michigan), and yet, 18 JURISDICTIONS plan to use it simultaneously to administer the test to OVER 30,000?! I just ran these test taker numbers (which are quite low, we're missing numbers from numerous jurisdictions offering remote examsoft bar exams) using a spreadsheet of info collected by the Diploma Privilege for Connecticut team and I'm frankly just...in jaw-dropping awe at this.

Let me run further math for you on that. 800 test takers on a remote bar exam in one jurisdiction (Michigan, that still had a significant issue when many users were locked out for 10-37 minutes on the first day of exams) is less than 3 PERCENT of the planned test takers who will be using examsoft to take remote bar exams on October 5-6. And again, those numbers are very low, as I don't have test taker numbers for Arizona, Idaho, Georgia, Massachusetts, Pennsylvania, Tennessee, or Texas (which alone historically has around 3,000 test takers!!).

THIS IS INSANE. THIS IS ABSOLUTELY RIDICULOUS. HOW CAN ANYONE THINK THIS IS REASONABLE OR GOING TO WORK.

When bar exam software has a significant issue the first time you use it in a remote setting, you don't go and then use it again for a remote use setting FOR OVER 37.5 TIMES THE PREVIOUS TEST TAKERS. This is BREATHTAKINGLY horrifying.

Obviously, despite writing over 3,000 words on this subject, this is just the tip of the iceberg. There’s a lot I haven’t talked about and a lot we don’t know. But please, if you’re convinced by my arguments here, join the fight for diploma privilege. United for Diploma Privilege has a pretty good run down of the organizers of the movements in each individual jurisdiction and a list of resources and upcoming events; I encourage you to reach out to the groups in your local area to help.

As you’ve seen now, this is a very complicated issue that jurisdictions are dealing with in a variety of different ways, and it’s all changing very quickly, so if anything is outdated or inaccurate, I apologize. You can always give me corrections via comment or via email at RachaelDickzen@gmail.com. Thank you!

Illinois Law Grads - Please Sign On to Support Diploma Privilege for Recent Grads

If you graduated from law school in Illinois, please join me and support the authorization of diploma privilege for the Illinois bar exam this year, which would allow the granting of Illinois law licenses to those who intended to take the bar exam this year on the basis of their graduation from law school. Numerous deans and professors at other law schools in Illinois are advocating for diploma privilege for the Illinois bar exam. At least two other states have already granted diploma privilege to their recent grads- Washington and Utah (Oregon has passed a temporary diploma privilege). This is /not/ an unreasonable ask but the most reasonable solution to the current unprecedented pandemic.

I know about all this because of various advocates on Twitter and the Illinois for Diploma Privilege facebook group. Everything I’ve written here is about Illinois because that’s where I went to law school (DePaul, wooo), but this issue is happening in almost every other state, so if you’re a law grad from another area, please go participate in the efforts for diploma privilege in those states too!.

If you’d like to see the petition we filed with the Illinois Supreme Court, it’s here (I signed on to it) - There are a ton of impact statements on here which make me tear up – it’s extremely clear that holding an in person bar exam at any point while this pandemic is uncontained is going to really hurt people and already has.

The IBAB’s response to our petition is linked here – and is opposed to diploma privilege.

******If you didn’t get to sign on the first time, you can email molliejmcguire@gmail.com to add your signature to a potential supplemental filing - Go here for more info .

Here's an oped in the Washington Post from the leaders of the United for Diploma Privilege facebook group explaining a lot of the reasoning -

Fortune has written an article about this as well.

Please consider the following:

1. The Bar Exam doesn't actually test for fitness to practice law. Anyone who has taken this and then later actually practiced law knows this, because they're completely different skills.

And at this point, a bar exam isn't going to assess any test taker' competency, but will only assess how well they're managing during a global pandemic. Any test taker with significant personal, financial, or health problems due to the host of worldwide issues caused by COVID 19 will be put at a significant disadvantage. Financial means, personal privilege, and pure luck (in avoiding COVID) will be what's tested, not legal knowledge or test taking skills.

2. It's prohibitively dangerous at this time to host an in person Illinois Bar Exam given the continuing threat of COVID-19. Although Illinois has postponed the bar until September, all signs indicate that this crisis will /not/ be over until next year sometime, after we have a vaccine and our numbers actually go down. We should absolutely not put people in the position of choosing between their health/the health of the people they live/interact with and their ability to practice the law.

In addition, the fact that the exam keeps getting rescheduled and changed at the last minute (and will likely get rescheduled again) is incredibly stressful on test takers. It's standard practice for most people taking the bar exam to take two months off to study for the exam. This can be a huge financial strain in the best of times, and when the actual date of the test is so uncertain and the amount of time needed to study for the bar keeps growing and being delayed, it puts test takers in a horrible and untenable situation for both financial and mental health.

3. IT experts who practice law have spoken out to state that we do not currently have the technology to ensure a fair and reasonable online bar exam that is equally available to all participants, as such an exam would likely require significant internet bandwidth, computer memory, and ancillary devices such as webcams (which would be kept on the entire time to ensure there's no cheating). Since proctors actually don't have the time to watch hundreds of hours of footage, they'll likely be using AI tech to track any anomalies and to check for facial recognition. Studies show that facial recognition software recognizes white men more readily than any other person, thus, such technology is going to cause more problems for any non-white man and will likely shorten these test-taker's test time and increase the likelihood of their scores being questioned due to these known issues. Someday, we will have the technology and equal tech access for all test takers to make this option viable, but everything I've read indicates that we're not there yet. These issues are explained VERY WELL in this twitter thread from Tom McMasters.

4. Some have suggested extending recent grads a temporary license to practice under supervision until December 2021. However, this is only a temporary solution that will create further problems down the road. When is a public service lawyer or a small firm lawyer or a public defender going to find time to study for the bar exam in 2022 on top of a full time job serving clients who desperately need their help?

The only solution that adequately addresses all the issues present here is diploma privilege to Illinois bar exam test takers.

As I stated previously, if you're an Illinois law school grad who didn’t get to sign on the first time, you can email molliejmcguire@gmail.com to add your signature to a potential supplemental filing - Go here for more info .

It's a Lot of Work for Men to Take Their Wife's Name

I've found a number of articles and studies lately that mention how difficult it is for men to take their wife's name upon marriage. As the paper below notes, while this initially looks like a form of discrimination against men, it really is a form of procedurally imposed discrimination against women; in most states, women are not entitled to have a husband take their name with the same relative ease that they are allowed to take their husband's. By making it so difficult and expensive for men to take their wife's names, even the most liberal men are discouraged from considering such a thing. Thus, the tradition of women only taking their husband's name continues on and on.  [I'm now imagining my Civil Procedure professor shouting out "TRADITION" and dancing in a parody of Fiddler on the Roof he did in class several times]

Some snippets on the subject:

"When I decided to take my wife's last name, I was shocked by how different the process is for men." By James Kosur, Business Insider (Dec. 19, 2015).

"Little did I know, the name change process would not be simple because of my gender.  .... If I was a woman who had been recently married, I would have presented my marriage license to the court, paid a name-change fee, and moved on with my life. A close friend tells me she remembers paying around $60 and submitting a simple form alongside her marriage certificate to change her name. Within weeks her name change was official. I paid $300 for a newspaper ad and spent hours in court and visiting with a newspaper ad sales representative in order to change my name. The change took more than a month to complete."  (Kosur describes the process as it currently exists in Illinois

Vintage Bride/Groom. By Jean L. Used under a Creative Commons License. Available at https://www.flickr.com/photos/yourcastlesdecor/14150266866/.

Deborah J. Anthony, A Spouse by Any Other Name, 17 Wm. & Mary J. Women & L. 187 (2010).

"Currently only nine state statutes explicitly allow a man to change his name through marriage with the same procedures as a woman. Interestingly, it has been allowed in Maine since 1980 by Attorney General opinion rather than statute. California was the most recent to join that group in 2007, as a result of a lawsuit filed by a man named Mike Buday, who desired to change his name to that of his wife but was prohibited from doing so outside of the court process. Rather than fight the lawsuit, California amended its law with the Name Equality Act of 2007, which became effective in 2009. The legislature noted the importance of names in Sec. 2 of the Act: “[T]he choice to adopt or not adopt a new name upon marriage or registration of domestic partnership is a profoundly personal reflection of one’s individuality, equality, family, community, and beliefs.”

It should be noted that some states’ laws are not explicit, but may be interpreted to apply to both women and men, and that male name change at marriage may be allowed at the county level. This results in what Emens identifies as “desk-clerk law,” where the law essentially consists of whatever the person at the desk says it is. This results in interpretations that are incorrect and/or discouraging of unconventional choices, with results being highly inconsistent from one employee, and one county, to the next. 

.... What at first appears to be discrimination against men is in reality discrimination against women: the status quo represents a legal sanctioning of the social norms that subsumed a woman within the husband’s identity. Because taking their husbands’ names at marriage was never really a “right” of women, but rather a requirement, the “right” actually inheres in the man. In essence, women are still denied what men have always enjoyed: the right to have a spouse adopt their name at marriage. This is why, in a society that has almost never legally favored the female over the male, and where men have always had the common law right to change their name whenever they chose, they are nevertheless not permitted to do so at marriage."

Michael Rosensaft, The Right of Men to Change their Names Upon Marriage, 5 J. of Const. Law 186 (2002).

"[C]ourts have gone beyond the restrictions listed in the statutes and rejected name change applications due to public policy or just their own whim. For example, the Minnesota Supreme Court denied the petition of a man who wished to change his name to '1069' for no other reason than the court did not think such a name conformed with their ideal of social norms. With so much discretion given to, and sometimes taken by, the courts, there is no assurance that any application will necessarily be approved. It might be argued that many judges would automatically allow name changes for marital purposes. However, a groom taking his wife's name is not a widely accepted practice, and judges have denied applications where they did not think it fit certain social structures. For instance, some courts have denied gay couples' petitions to have the same last name. This example is not so important because it directly applies to marital name change statutes, but because it shows that giving discretion to courts means that they are free to apply the social norms that they find acceptable. ...And lest one think a judge would always approve a man's wish to adopt his wife's surname, at least one Florida judge was resistant to this idea when he told Dan Cipoletti that he 'needed a better reason than getting married to change his name...'

Other evidence tends to show that Congress supports the right to control one's name upon marriage. In 1964, Congress passed Title VII of the Civil Rights Act, which holds that it is unlawful for an employer to discriminate against any individual with respect to their sex. The Sixth Circuit has applied this statute to marital name change. In Allen v. Lovejoy, the court invoked Title VII when a woman was fired from her job because she refused to go by her husband's surname after marriage and wanted to sign her own maiden name to company forms.  The Sixth Circuit stated that a 'rule which applies only to women, with no counterpart applicable to men, may not be the basis for depriving a female employee who is otherwise qualified of her right to continued employment.' In addition to Title VII, Congress has added a section to the Equal Credit Opportunity Act that is specifically gender neutral and states:'A creditor shall not refuse to allow an applicant to open or maintain an account in a birthgiven first name and a surname that is the applicant's birth-given surname, the spouse's surname, or a combined surname.' Clearly, considering the Sixth Circuit's construction of Congress' intent in enacting Title VII and the additions Congress has made in the Equal Credit Opportunity Act, Congress feels it important that a spouse who wishes to either change their name upon marriage or keep it the same not be discriminated against. While Congress has not specifically addressed the issue of a man changing his name upon marriage, it is more likely that this is due to the practice being relatively infrequent rather than it not falling in line with their aforementioned policies."

This article also has a fascinating Equal Protection analysis of the issue. I highly suggest you read it!

The Right of Married American Women to be More than "And Wife" on a Passport

Let's never forget how far women actually have come. Less than 100 years ago, women didn't even have the right to see their first name with their husband's last name on a passport, much less their birth name. It's a little depressing that such advances are so recent.

Us modern women are incredibly lucky to live when we do- we have more freedom and more rights than almost any women have throughout history. That doesn't mean we should stop addressing sexism wherever we see it, but it is something to think about. 

"U.S. passports predate the Declaration of Independence, but the documents were issued on an ad hoc basis until the late 1800s, when the process began to standardize. By then, a single woman was issued a passport in her own name, but a married woman was only listed as an anonymous add-on to her husband’s document: 'Mr. John Doe and wife.'

'Restrictions on travel rarely took the form of government policy or officials actively preventing women traveling abroad. Rather, restrictions came in the form of accepted social ideas,' says Craig Robertson, author of Passport in America: History of a Document. 'Put simply, it was not acceptable for a married woman to travel outside of the country without her husband; he, of course, could travel without her. More generally, a married woman’s public identity was tied to her husband, and passports reflected that in being issued to the husband, with his wife being a literal notation.'..

[Doris E.] Fleischman’s passport was the first legal document issued by a federal agency to a woman under the name she preferred and the first U.S. passport issued to a married woman that didn’t designate her as the “wife of” her husband. However, though other women could request passports with similar wording as Fleischman’s, the State Department continued to issue passports referring to most women as 'the wife of Mr. John Doe' until the late 1930s."

The 1920s Women Who Fought for the Right to Travel Under Their Own Names - By Sandra Knisely, March 27, 2017  http://www.atlasobscura.com/articles/us-passport-history-women?utm_source=facebook.com&utm_medium=atlas-page

Picture credit: Doris E. Fleischman's passport application (National Archives and Records Administration - public domain)

You Can't Take Your Spouse's Name in Quebec

"In marriage, both spouses retain their respective names, and exercise their respective civil rights under those names." Article 393 of the Civil Code of Quebec

Since 1981, women in Quebec have been banned from legally taking their husband's  name. According to Marie-Hélène Dubé, a Montreal lawyer who specializes in family law, in an article published in the Global News, “The reason this law was adopted was to put an end to huge social pressure on women upon marrying to take the husband’s name." Dubé justified the harshness of the law by stating, "The reality is if the rule is too flexible, women can be subject to pressures … where they can be forced to do something that they don’t really want to do."

According to the Directeur de l'etat civil Quebec's website, "The law permits a person to apply for a change of given name or surname under certain conditions. Such a change is granted only if a serious reason, within the meaning of the Ci'vil Code of Québec, has been shown. Important: Under the Civil Code of Québec, both spouses retain their respective names in marriage and exercise civil rights under those names. Consequently, if a married woman wants to adopt her spouse's surname, the Directeur de l'état civil will authorize that change of name only in an exceptional situation."'

Names can be changed in Quebec in two ways:

1. A child's name change can be authorized by the court in the case of abandonment by a parent, in the case of deprivation of parental authority, or in the case of a change of filiation, such as through an adoption.

2. A person can also apply to the Directeur de l'état civil for a name change. The website gives a few examples of reasons to apply for a change of name, including: "The use, for five years or more, of a surname or given name not entered on the act of birth; A name of foreign origin, too difficult to pronounce or write in its original form; Serious prejudice or psychological suffering caused by the use of the name; A name that invites ridicule or that is infamous (marked by disgrace, shame or humiliation); or the intention to add to the surname of a child under 18 the surname of the father or mother, or a part of it if it is a compound surname."

This is a difficult process, as illustrated by Saleema Webster in an article in Chatelaine: "There are circumstances in which a name change is allowed: parental abandonment, other reasons of inconvenience. I checked every box, adding that it would be a hardship not to have the same name as the rest of my new family. ...Eventually, I had to provide a letter from a psychologist supporting my claim of emotional hardship, and in a process that took over a year and hundreds of dollars, I was granted a legal name change, from Saleema Nawaz to Saleema Webster." (This article also includes a humorous story with a slight twist on the standard "people assume you have your husband's name" story you hear so often in America, in which a doctor in Quebec was incredibly confused by the author and her husband sharing a last name).

I have so many thoughts on this. I kind of get the idea of cutting down on social pressure, because seriously y'all, there is a ridiculous amount of social pressure for women to change their name, but at the same time, this law seems like it goes way too far in terms of taking away people's choice. So though I can understand how they got to this point, I highly disagree with it. Plenty of people seem to agree with me on this, including the Prime Minister of Canada and his wife. A National Post article noted that a directive that stated the Prime Minister's wife be known as "Sophie Grégoire Trudeau" was effectively giving a middle finger to Quebec's law, as "Since Trudeau and Grégoire married in 2005 in Montreal, she has had no right to share names with her husband — or their children, for that matter." (although I should note that I'm pretty sure there's no law in Canada that requires children to have their father's name).

The wording of the law is also very broad, "spouse" rather than husband or wife. I'd normally applaud the gender-neutral wording, but in this case, I think it means that homosexual couples are banned from taking each other's surnames upon marriage as well. And the same justifications for avoiding social pressure seem to not hold up in that situation. If you have two men marrying each other, there's theoretically no social pressure. If you have two women marrying each other, is there twice the pressure? And what sort of social pressure exists for genderqueer folks who don't identify as either male or female? I'm just so curious.

In any case, the justifications fall apart pretty quickly and you just have a situation where people are banned from making their own choices about their names post-marriage. And that's never cool. 

Changing Your Name Can Get Expensive and Time-Consuming

Refinery 29 published an article on this subject, looking specifically at the requirements for a woman changing her name in New York. 

"Capalad is hoping to use her maiden name as a middle name — a trend that's been steadily on the rise in the last decade. However, New York state recognizes a name change by marriage only if she tacks on her married name as a hyphenated double-barrel, or if she drops her maiden name altogether. Since Capalad is hoping to essentially change her middle name and last name, she is required to appear in civil court and petition in front of a judge. The court fees vary by location — with some courts upstate charging up to $300 for an appearance — so Capalad opted for the relatively cheaper Kings Civil Court in Brooklyn. This will still cost her $65 to go in front of the judge, not to mention the weeks spent to schedule a court date."

Table Decoration by SunFla, available on Etsy at https://www.etsy.com/listing/198605520/mr-mrs-purple-glitter-letters-wedding.

It also takes a good look at some of the costs you might not initially think about:

"I feel like the real money loss is having to take time off work to do all of this," Capalad said. There are so many variables that affect how much time you need to get your name change request approved, so taking half-days or full days off work seems necessary. Since Capalad is self-employed, she has no annual leave to use for such trips. She estimates that she lost a total of 1.5 to two days of income between the civil court petition and the DMV visit.

What about those Name Change services popping up everywhere? 

"With services like Hitchswitch and MissNowMrs claiming to help with changing your name starting at $29, it's tempting to go with the seemingly most hassle-free option. However, these sites don't file the forms for you; rather, they send you a completed version of everything — which you could just download from the state agencies anyway — and supply the envelopes for you to mail. If you hate filling out paperwork, this is a great tool to use, but we suggest considering your situation and making the judgment call to deliver your application by post or in person."

It looks like these websites generally provide filled out paperwork for Social Security, IRS, Passports, Postal Services, Driver's License, and Voter Registration and customized notification letters for non-governmental agencies at the lowest cost option. 

Banner by BannerCellar, available on Etsy at https://www.etsy.com/listing/519915243/future-mrs-banner-bridal-shower-banner

As I've already written about before, this is generally significantly easier and cheaper for women than it is for men, but it still can really add up! However, everyone has different experiences, and several of my friends on Facebook said that it wasn't an issue for them at all. 

"I only remember that in Kansas, one of the state offices had to snail-mail me something and the post office wouldn't deliver it because my name wasn't registered at that address so I had to deal with the post office on that. Otherwise I don't think it was that big of a pain, but also I was so stupid in love at the time that I would have walked to the ends of the earth for him." - Beth Lawton (former boss extraordinaire!)

"M[y name change] was super easy, too. I didn't do a traditional change (added another middle), so I read up on that beforehand and the recommendation was to do social security first. Reason being I read about people who did their license first and the license people argued and/or didn't format it as requested. When you do SS first, they can't argue. So I did that and it was a breeze. Bank and everything else was even easier. Facebook let me change my name, but I had to submit proof to add my maiden name, because they flagged it as inappropriate." - Elizabeth Miller

"Conjugal Rights" and the Right to Refuse to Have Sex

As yet another reminder of "Dear God am I happy I was born when I was and not a few hundred years ago," married women in England only gained the right to refuse to have sex with their husbands fairly recently. These excerpts outline how that situation evolved.

Detail from The Courtship by John Collet (1766)

"A husband's right to sexual intercourse was assured by law in several ways. Firstly, by the law and custom of marriage. Sir Matthew Hale commented in 1736 that it was impossible for a husband to be tried for rape, because by marrying the wife had 'given herself up' sexually to her husband and could never retract that consent.

Secondly, an ancient right under canon law allowed either party to claim restoration of 'conjugal rights' (i.e. cohabitation). Under the 1857 Divorce Act, refusal to cohabit after being ordered to do so by a judge was contempt of court and could entail a prison sentence. Once a woman was cohabiting with her husband he could rape her with impunity. As Oswald Dawson put it in 1895, a wife was 'at the mercy of the carnal appetite of the man ... at all times and without regard to the state of her health, or any other considerations', he continued, 'This slavery of compulsory cohabitation is surely chattel-like'. He concluded, 'until a woman who is a wife can say, at least at certain times....'I wish to sleep alone'... she can never consider herself free'.

The Matrimonial Causes Act 1884 reformed the law so that a refusal to restore conjugal rights no longer led to imprisonment but was deemed to be desertion, which was then grounds for divorce. From then, wives are found applying to court for 'the restitution of conjugal rights', not because they wanted their husbands to move back in, but as the first step towards getting a divorce." Excerpt from  History of Women: Marriage, by Helena Wojtczak (an excellent website that you should go read!) 

The Court of Chancery in the early 19th century (1808) - https://en.wikipedia.org/wiki/Court_of_Chancery#/media/File:Court_of_Chancery_edited.jpg

"The 1884 Act thus gave effect to the policy that it was oppressive and unnecessary to imprison those who preferred to live apart from their spouses. But the extent to which the courts were prepared to recognise the existence of legally enforceable ‘rights’ in the family context remained unclear. Only a few years later, a sensational case illustrated the difficulty:

In R v. Jackson a husband applied for and obtained a decree for restitution of conjugal rights against his newly married wife, and set about enforcing it. Assisted by two young men (one a solicitor’s articled clerk) he seized her as she was leaving church in the Lancashire town of Clitheroe and forced her into a carriage, claiming to have used no more force than was absolutely necessary to separate her from the sister he believed to be responsible for what had happened. Mrs Jackson was kept in the husband’s house in Blackburn in charge of her sister and a nurse and she was visited by a doctor. The husband claimed that he showed her every kindness and consideration and that she had the free run of the house,  ‘doing just as she pleased, save leaving the house’; and that he ‘had offered several times to take her for a drive, but she had declined to go’. The wife’s relatives instituted habeas corpus proceedings; and the Court of Appeals rejected the husband’s argument that a husband had the right to enforce the ‘general dominion’ he had over his wife by imprisoning her if she refused him the conjugal rights to which a court had declared him entitled. Lord Esher MR regarded the 1884 Act as the ‘strongest possible evidence to shew that the legislature had no idea that a power would remain in the husband to imprison the wife for himself, not least because to accept this view would result in his being allowed to act as party judge and executioner.

The Jackson decision was at the time unpopular in some quarters, and it was certainly widely misunderstood. But it is a landmark in family law: the decision recognises that the ‘rights’ which exist between husband and wife are of a different order than (say) the rights of the parties to a commercial contract. But the question of ‘how different’ remained difficult." 

Legal Consequences of marriage: Conjugal Rights and Remedies (an excerpt from Stephen Cretney, Family Law in the Twentieth Century: A History, Oxford University Press (2003))

Fun fact: Under English law, women only gained the right to divorce her husband on the grounds of adultery alone in 1923. Men previously were the only ones to have that right.

The action of restitution of conjugal rights was only abolished in 1970, though at that point it was rarely used. The equivalent legal actions in Scotland and Ireland were abolished in 1984 and 1988, respectively. 

On the Legal Side: State Laws that Explicitly Allow a Man to Take his Wife's Name

To be fair, that headline actually means "to take his wife's name with the same relative level of ease that a woman has in changing her name upon marriage instead of having to go through a lot of court and publication shenanigans."

"One or both parties to a marriage may elect to change the surname by which he or she wishes to be known after the solemnization of the marriage... [to] (i) the surname of the other spouse; or (ii) any former surname of either spouse; or (iii) a name combining into a single surname all or a segment of the premarriage surname or any former surname of each spouse; or (iv) a combination name separated by a hyphen, provided that each part of such combination surname is the premarriage surname, or any former surname, of each of the spouses."

"(b) Every application for a marriage license shall contain a statement to the following effect:

NOTICE TO APPLICANTS

(1) Every person has the right to adopt any name by which he or she wishes to be known simply by using that name consistently and without intent to defraud.

(2) A person's last name (surname) does not automatically change upon marriage, and neither party to the marriage must change his or her last name.  Parties to a marriage need not have the same last name.

(3) One or both parties to a marriage may elect to change the surname by which he or she wishes to be known after the solemnization of the marriage by entering the new name in the space below.  Such entry shall consist of one of the following surnames:

(i) the surname of the other spouse;  or

(ii) any former surname of either spouse;  or

(iii) a name combining into a single surname all or a segment of the premarriage surname or any former surname of each spouse;  or

(iv) a combination name separated by a hyphen, provided that each part of such combination surname is the premarriage surname, or any former surname, of each of the spouses.

(4) The use of this option will have the effect of providing a record of the change of name.  The marriage certificate, containing the new name, if any, constitutes proof that the use of the new name, or the retention of the former name, is lawful.

(5) Neither the use of, nor the failure to use, this option of selecting a new surname by means of this application abrogates the right of each person to adopt a different name through usage at some future date."

New York Domestic Relations Law § 15.

"Married persons; civil union partners. Upon marriage or civil union, each of the parties to a marriage or partners in a civil union shall declare the middle and last names each will use as a married person or civil union partner. The last name or names chosen may be any middle or last name legally used at any time, past or present, by either spouse or partner, or any combination of such names, which may, but need not, be separated by a hyphen. The middle name or names chosen may be any middle or last name legally used at any time, past or present, by either spouse or partner, or any combination of such names, which may, but need not, be separated by a hyphen."

HAW. REV. STAT. ANN. § 574-1 

Other state law citations: GA. CODE ANN. § 19-3-33.1 (1999); IOWA CODE ANN. § 595.5 (2001); LA. CIV. CODE ANN. art. 100 (2002); MASS. ANN. LAWS ch. 46, § ID (1991); N.D. CENT. CODE § 14-03-20.1 (1996).

On the Legal Side: Chinese Laws Relevant to Marital Surname Decisions

Jumping off my post from Monday, check out the actual wording of some of these marital surname laws that have been in place in China. Keep in mind that I'm only using English translations here, so it's entirely possible that some nuance may have been lost in the transition.

Full info here:  http://chineseposters.net/posters/e15-594.php

The Civil Code of the Republic of China (1930) Article 19 - "If the right to the use of one's name is unlawfully infringed, application may be made to the Court for the suppression of the infringement and for damages."

The New Marriage Law (1950, People's Republic of China) - Article 11 - "Both husband and wife shall have the right to use his or her own family name." Also, check out some more of the propaganda posters from that time period supporting the precepts of the law.

Second Marriage Law of 1980 (People's Republic of China) Article 14 - "Both husband and wife shall have the right to use his or her own surname and given name."

More info here: http://chineseposters.net/posters/e15-591.php

On the Legal Side: The Convention on the Elimination of All Forms of Discrimination Against Women

"...the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields "

The Convention on the Elimination of All Forms of Discrimination Against Women was adopted by the UN General Assembly in 1979 and is often described as the international bill of rights for women. States that are a party to the agreement pledge "to make equality between men and women a reality by providing equal opportunities in all fields, whether political, civil, economic, social or cultural, as well as in family life. Those States also committed themselves to reporting to the Committee on the Elimination of Discrimination Against Women on steps taken to fulfill their obligations." (Source: The UN handbook on the convention and its optional protocol)  States also have the option to sign onto an optional protocol to the convention which allows women whose rights have been violated and who have exhausted national remedies to seek redress from an independent international body. 

The United States has signed this treaty but not ratified it. To be honest, our country does this pretty often. For a treaty to be ratified by the United States, the Senate must advise and consent the President on the treaty by a two-thirds vote. Only after the Senate approves can the President ratify it. Here's what Wikipedia says about this: "While the House of Representatives does not vote on it at all, the requirement for the Senate's advice and consent to ratification makes it considerably more difficult to rally enough political support for international treaties. Also, if implementation of the treaty requires the expenditure of funds, the House of Representatives may be able to block or at least impede such implementation by refusing to vote for the appropriation of the necessary funds."

So what power does an unratified signature have?  "Where the signature is subject to ratification, acceptance or approval, the signature does not establish the consent to be bound. However, it is a means of authentication and expresses the willingness of the signatory state to continue the treaty-making process. The signature qualifies the signatory state to proceed to ratification, acceptance or approval. It also creates an obligation to refrain, in good faith, from acts that would defeat the object and the purpose of the treaty." [Arts.10 and 18, Vienna Convention on the Law of Treaties 1969]

Here's the part that is most relevant to marriage and marital surname decisions:

Article 16

1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

(a) The same right to enter into marriage;

(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;

(c) The same rights and responsibilities during marriage and at its dissolution;

(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;

(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;

(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount;

(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;

(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.

2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.