Following up on my previous posts:
Vikram Amar (Dean, Illinois), The New York Bar’s Misguided Discrimination Against Out-Of-State Law Schools:
As has been widely reported, the New York Board of Law Examiners (BOLE) last Thursday confirmed that the Uniform Bar Examination (UBE) originally scheduled for late July in New York would be administered on September 9 to September 10 instead. No surprise there. What was surprising was the related announcement that BOLE would discriminate in favor of the 15 ABA-approved law schools located in New York state by giving graduates from these schools an exclusive 10-day window (from May 5 to May 15) to apply for September-test seating, before allowing graduates from out-of-state schools to apply for any seats that may (or may not) be available after the in-state schools were served.
I say this is surprising because it is unfair. And unconstitutional. And because one would expect the highest court in New York, which oversees BOLE, to care about such things. ...
[W]hen times are tough, and when there is not enough of something to go around to all who might deserve it, our leaders must set the right tone and the right example. Whether it’s toilet paper or bar-exam seats, hoarding is wrong.
In response to Thursday’s announcement, a group of 21 law deans (I was not among them), from schools outside New York (including Yale, Harvard, and the University of Pennsylvania) whose institutions accounted for over 2,000 New York-bar takers last year, wrote a letter to New York’s Chief Judge. ... The deans identified scarcity as a key driver of the problem, and offered various suggestions to help. ...
I commend these deans and their earnest efforts to alleviate a scarcity that may be somewhat artificial in the sense that it can be alleviated with creative flexibility. But artificial scarcity is not the only — or even the core — problem with BOLE’s decision. ...
BOLE’s seat-allocation policy is fundamentally flawed because it is discriminatory — it fails to treat law schools (and their students) throughout the country equally. ...
In doling out the September New York-venue slots, BOLE must act fairly and legally, and can’t discriminate against out-of-state institutions (and their graduates) in ways that violate the Commerce Clause of Article I of the Constitution.
The Commerce Clause was the framers’ first line of defense against corrosive barriers to trade and economic balkanization among the states. Even in the absence of affirmative congressional action, the Commerce Clause generally forbids states from favoring in-state economic actors over out-of-state competitors. ... [M]ost federal judges and constitutional law professors would find a case against BOLE here to be pretty easy on the merits.
How would the New York judges and New York-based schools feel if the 49 other states said graduates from New York schools can’t get seats at their bar exams — or be eligible for licenses at all? Or if every state discriminated against all graduates from out-of-state schools? That is precisely the kind of economic retaliation and disintegration the Commerce Clause was designed to avoid and to chide, and yet it is exactly what New York is encouraging.
New York is a great state, and this overt favoritism is beneath it. It is, after all, home of the Big Apple, not the Rotten Apple.
TaxProf Blog coverage of the July 2020 bar exam:
- The Bar Exam And The COVID-19 Pandemic: The Need For Immediate Action (Mar. 14, 2020)
- NCBE To Decide By May 5 Whether It Will Provide MBE For July Bar Examinations (Mar. 27, 2020)
- New York Postpones July Bar Exam To Fall; Students Demand Emergency Diploma Privilege To Practice Law (Mar. 28, 2020)
- Massachusetts Joins New York In Postponing July Bar Exam (Mar. 30, 2020)
- Connecticut Is Third State To Postpone July Bar Exam (Mar. 31, 2020)
- Hawaii Is Fourth State To Postpone July Bar Exam (Apr. 2, 2020)
- New Jersey Is Fifth State To Postpone July Bar Exam, First To Offer 2020 Law Grads Temporary License To Practice (Apr. 7, 2020)
- July Bar Exam Update: ABA, Arizona, California, Florida, Tennessee, Vermont (Apr. 8, 2020)
- Indiana Allows 2020 Law Grads To Serve As Graduate Legal Interns And Take February 2021 Bar Exam (Apr. 9, 2020)
- Utah To Let Grads Skip Bar Exam Due To COVID-19, But Only From Schools With 86%+ Bar Pass Rate; Grads Of Just 4 Of California's 21 Law Schools Would Qualify (Apr. 11, 2020)
- Licensing Lawyers In A Pandemic: Proving Competence (Apr. 12, 2020)
- Even In Time Of Crisis, Hold Fast To Bar Exam (Apr. 13, 2020)
- Bar Exam Federalism During The COVID-19 Pandemic (Apr. 14, 2020)
- State Bar Tells California Supreme Court: Delay Or Cancel July Bar Exam (Apr. 15, 2020)
- July Bar Exam Update: Maine, Rhode Island (Apr. 16, 2020)
- Letter From California State Bar To California Supreme Court On July Bar Exam (Apr. 17, 2020)
- July Bar Exam Update: Georgia, Tennessee, Virgin Islands (Apr. 18, 2020)
- Letter From California Deans To California Supreme Court On July Bar Exam (Apr. 18, 2020)
- More Law Prof Commentary On Utah's Bar Diploma Privilege Proposal (Apr. 20, 2020)
- NCBE Opposes States Granting Diploma Privileges To 2020 Law Grads Due To COVID-19 (Apr. 20, 2020)
- Horwitz: Law Graduates' Needs, Client Needs, And The Bar Exam (Apr. 20, 2020)
- WSJ: Law Students In ‘No Man’s Land’ As Coronavirus Delays Bar Exams (Apr. 20, 2020)
- Utah Supreme Court Issues Final Order Letting Grads Of Law Schools With Average 86+% Bar Pass Rate Skip Utah Bar Exam Due To COVID-19 (Apr. 22, 2020)
- Courts Should Look To Three Bar Exam Alternatives During Crisis (Apr. 24, 2020)
- July 2020 Bar Exam Status By Jurisdiction (Apr. 26, 2020)
- California Supreme Court Orders July Bar Exam Delayed To Sept. 9-10, Administered Online (Apr. 28, 2020)
- July Bar Exam Update: New Mexico, New York, North Carolina, Pennsylvania (Apr. 29, 2020)
- Texas Moves Forward With July Bar Exam, Adds September Option And Expands Practice With Supervision Program (Apr. 30, 2020)
- New York Will Give Priority To Graduates From New York's 15 Law Schools For Limited Spots To Take September Bar Exam (May 1, 2020)
- Deans Ask New York To Not Discriminate Against Graduates Of Out-Of-State Law Schools In Sitting For September Bar Exam (May 3, 2020)
- July 2020 Bar Exam Status By Jurisdiction (May 3, 2020)
- July Bar Exam Update: Illinois, Iowa, Maryland, Missouri (May 4, 2020)