Paul L. Caron
Dean



Thursday, May 21, 2020

Dean Amar: Why It Is Unconstitutional For State Bars, When Doling Out Bar-Exam Seats, To Favor In-State Law Schools

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:

Amar 3As 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:

For complete TaxProf Blog coverage of the coronavirus, see here.

 

https://taxprof.typepad.com/taxprof_blog/2020/05/dean-amar-why-it-is-unconstitutional-for-state-bars-when-doling-out-bar-exam-seats-to-favor-in-state.html

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Comments

This repeated whininess from the academy, combined with its insular perspective and the constitutionalization of every perceived differentiation makes me happy that quite soon the legal academy will be in an existential crisis for funding.

I look forward to the whiny articles about why higher education, particularly legal education, have some sort of constitutional claim to funding. Don't ever stop, legal academy, don't ever stop your irrelevant, selfish nonsense.

Posted by: Anonymous | May 21, 2020 12:08:46 PM