Paul L. Caron
Dean


Monday, May 4, 2020

Dean Amar: New York's Discrimination Against Graduates Of Out-Of-State Law Schools Is Unconstitutional — 'Whether It’s Toilet Paper Or Bar Exam Seats, Hoarding Is Wrong'

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:

https://taxprof.typepad.com/taxprof_blog/2020/05/dean-amar-new-yorks-discrimination-against-graduates-of-out-of-state-law-schools-is-unconstitutional.html

Legal Ed News, Legal Education | Permalink

Comments

It is not unconstitutional, and it's not like anyone is going to challenge it. Just stop. The Court of Appeals is doing its best with a terrible and unprecedented situation. If students have to take the test in February instead of September, they'll be just fine in the long run.

Posted by: anon prof | May 4, 2020 12:20:41 PM

Probably no violation of the Constitution for failing to have set the "right" tone and the "right" example.

Posted by: Jonathan Silber | May 5, 2020 8:25:36 AM

Yep, what's another 6 months of potential poverty and professional angst because New York bar officials want to show favoritism to those educated by NY businesses, err law schools.

If waiting one, six, or more months is no big deal in the long run, then why discriminate now? Here's a simple solution, so I think: have a random lottery that puts all applicants on equal footing. So if you have to wait until next year, then it will not be based solely on whether you went to law school in NY. This way everyone has an equal opportunity to be screwed rather than just those who happen to fall on the other side of the wall built around NY state.

But a better solution, seems to me, would be to hire a few hundred or more qualified people looking for jobs who can proctor the exams and to rent however many more venues of varying sizes that can accommodate proper social distancing and reasonable testing condition throughout NY state.

Yes, this reasonable solution will cost more money to administer, but the cost of depriving law school graduates the opportunity to take the test and begin practicing law sooner than later is immeasurable per each of many thousands of otherwise eligible applicants for which too many professionals seem to show so little regard unless they are home grown talent.

Posted by: Mark P. Yablon | May 7, 2020 11:16:54 PM