Following up on my previous post, 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':
Vikram Amar (Dean, Illinois), Why It is Unconstitutional for State Bars, When Doling out Bar-Exam Seats, to Favor In-State Law Schools:
As bar examiners around the country grapple with administering bar exams this summer (either in July, as originally scheduled, or a month or two later) in the kind of socially distanced format the COVID-19 pandemic seems likely to require, a troubling pattern is emerging. Starting with New York (three weeks ago), a number of states—anticipating that there will be more demand for exam seats than can be accommodated—have announced policies that give formal priority for exam registration to people who graduated from in-state law schools, and that discriminate openly against out-of-state schools and the graduates therefrom. Massachusetts and Tennessee (like New York) recently made clear they will give formal preference to, and only to, graduates of all in-state law schools. So too with Maine and North Dakota (the only law school in each state being that of the public flagship university). And Connecticut and Missouri will give preference to graduates of in-state law schools along with some graduates of out-of-state (but often nearby) schools.
This trend is disturbing, because of the message it sends (about selfishness in times of crisis) and also, even more importantly, because the actions of most of these state bars (Connecticut and Missouri may be more complicated) are unconstitutional.
To be sure, administering a professional licensure exam in these times is challenging. And many states—especially those states that give the so-called Uniform Bar Examination (UBE), a test whose score can be used to seek admission in over 30 states in the nation—are probably correct in expecting that more people will seek to take the test in their states than can, given social distancing, be accommodated. (I am fully supportive of efforts of my law dean colleagues around the country to brainstorm about ways to expand the number of exam seats, but the reality is that demand for exam spaces could easily exceed supply in many states this summer). Scarcity is unfortunate. But as public agencies (generally overseen by state high courts), bar examiner bodies must manage that scarcity in ways that are consistent with the United States Constitution. And treating all in-state law schools more favorably than all out-of-state schools simply won’t fly, constitutionally speaking. (Although many constitutional challenges might be made, in this essay I limit myself to Commerce Clause concerns.) ...
The fact that Wisconsin’s unconstitutional diploma privilege endures may embolden (or mislead) states like New York into similarly unconstitutional favoritism. But the problem likely runs deeper. The reality is that courts (and remember that courts oversee bar examiners) are often very late to recognize and apply constitutional limits upon their own power to regulate the legal and judicial professions. Think of how long it took for the Supreme Court to invalidate various state-bar prohibitions on attorney advertising, even though such content- and viewpoint-based restrictions would likely have been struck down much earlier in any other setting, and seemed obviously inconsistent with the right to free speech, the right to counsel and the right to hire a lawyer as part of due process.
Or consider that the Supreme Court itself would not, until 2003, permit quiet note-taking by members of the public in the courtroom watching and listening to oral arguments! Can you imagine a city council in Anytown, USA, getting away with prohibiting notetaking by members of the public who are observing council meetings?
The short of it is that even conscientious judges have blind spots, which is why having commentators and litigants around to make arguments and press legal claims isn’t a bad thing.
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)
- 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)
- 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' (May 4, 2020)
- July Bar Exam Update: DC, Maine, Massachusetts (May 5, 2020)
- CLEA Statement On The July 2020 Bar Examination (May 6, 2020)
- 54 More Deans Ask New York To Not Discriminate Against Graduates Of Out-Of-State Law Schools In Sitting For September Bar Exam (May 7, 2020)
- New York Should Replace Discriminatory Bar Exam Plan With Emergency Licensure Open To All Law School Graduates (May 7, 2020)
- Florida To Proceed With July Bar Exam With Temperature Checks, Social Distancing, Masks, And 14-Day Quarantines For Out-Of-State Applicants (May 8, 2020)
- July Bar Exam Update: Alabama, Indiana, Louisiana, Nebraska, Nevada, North Carolina, South Dakota (May 10, 2020)
- July 2020 Bar Exam Status By Jurisdiction (May 10, 2020)
- 57 Deans Ask Massachusetts To Not Discriminate Against Graduates Of Out-Of-State Law Schools In Sitting For September Bar Exam (May 11, 2020)
- July Bar Exam Update: Colorado, Delaware, Kansas, Kentucky, Ohio, Tennessee, Washington (May 15, 2020)
- July 2020 Bar Exam Status By Jurisdiction (May 17, 2020)
- Citing Covid-19, Minnesota Law Graduates Seek To Bypass Bar Exam To Practice In Wisconsin (May 19, 2020)
- Michigan To Give Online One-Day Essay-Format Bar Exam In July (May 19, 2020)
- A Skeptical Comment On The Wisconsin Diploma Privilege (May 20, 2020)
For complete TaxProf Blog coverage of the coronavirus, see here.