"The New York Bar's Misguided Discrimination Against Out-Of-State Law Schools"

|The Volokh Conspiracy |

An excellent column from several days ago by Vik Amar, a leading constitutional law scholar and dean at University of Illinois College of Law:

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. When a state explicitly treats in-state businesses differently than out-of-state counterparts, federal courts apply a strong presumption against the law and will uphold it only if it survives a form of strict scrutiny — one that requires the law be necessary to achieve an important (and innocent) purpose.

BOLE's [the New York Board of Law Examiners'] announced policy explicitly treats all in-state law schools differently than all out-of-state law schools. It sends a message to law schools and prospective students, at this crucial time when none of us knows how long COVID will remain a problem, that if you want to take the New York bar exam, students from Columbia will be preferred to students from the University of Chicago, and students from Fordham will receive better treatment than those from Northwestern or Illinois. True, maybe people wouldn't necessarily choose which law school to attend based on this factor alone, but if BOLE can discriminate (openly) a little, then presumably it could do so a lot. And in any event, even a $10 facially discriminatory tax targeting out-of-state entities is invalid unless dictated by a strong government interest.

Note that, while the Commerce Clause constraints are likely relaxed when it comes to stopping the physical spread of disease (e.g., if a state bars travel from out of state during an epidemic), the Board of Law Examiners' plan (for the September bar) seems pretty far removed from any such immediate public health justification.

NEXT: Wisconsin Supreme Court Says the State's COVID-19 Lockdown Violated the Rule of Law and the Separation of Powers

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  1. Journalists work for private companies, so of course are not constrained in the same way as states, making this post a bit off-topic.

    IMO, a big source of the liberal bias in the media that infuriates the public and boosts Trump is favoritism to certain journalism schools.

    Columbia is favored, Bob Jones or Brigham Young are disfavored.

    I’ve always thought that if we want balanced journalism, we need political world view affirmative action programs for employees of their parent companies. Diversity of journalism school recruiting would be a good way to start.

    Step two would be to move into academia and impose diversity of political viewpoints goals for the faculty.

    1. Journalism is a very self-selecting field in my opinion. Who do you think becomes a journalist? An English major who lacks creativity? Some media companies are already automating the tasks of journalists by dumping out AI generated word salads from stock tickers. But don’t worry, they will learn to code eventually.

      1. I’ve seen research that the best journalists have untreated ADHD and that diagnosis & treatment for ADHD is why journalism is dying.

        Just sayin…

        1. How about a link to that report? Sounds sketchy at best.

          1. He’s joking. (Or, he’s invented another anecdote…the line between these two is so fuzzy that I don’t waste my time anymore trying to determine which is which in any particular case.)

          2. I can’t believe I found it, but I did — it was in a textbook I read a decade ago. Honos-Webb, Lara, _Gift of adult ADD, pp. 21

            1. That book 1. Is not a textbook; 2. Does not present research on this point; and 3. Does not conclude that “diagnosis & treatment for ADHD is why journalism is dying.”

              What is wrong with you?

              1. Anything that a professor assigns as a required text (and is a book) is a textbook. And how many of your assigned readings do you fully remember a decade later?


    2. Step three, government makes all its choices for the usual corrupt government reasons.

      Are you mad? You actually want government to impose diversity? Isn’t our current fucked up diversity mess fucked up enough?

      1. Where did he ask for government to mandate diversity? He said the institutions should. Not the government.

        1. “impose diversity of political viewpoints goals for the faculty” — you sure won’t get anyone imposing unwelcome diversity upon itself, especially self-appointed elite faculties. “Impose” applies to all organizations as coming from outside, and that means the government.

    3. Sure you have.

  2. “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.”

    Then explain why states are not required to recognize out of state licenses for damn near every occupation.

    1. Better yet, do state firearm restrictions for federally licensed arms dealers.

  3. OTOH, Wisconsin has long waived the bar exam for in-state grads.

  4. i don’t see how this is any different from imposing restrictions on out of state lawyers, which every state bar does. They aren’t based on anything other than protectionism either.

    If we’re going to strike down practice rules, strike them down. But if we aren’t, I see no reason why a state can’t prefer or even exclusively require lawyers to go to its own law schools. (And honestly, it might do law practice a lot of good if we made this a hard and fast rule. It would devalue a Ivy League law degree enormously and level the law school playing field somewhat.)

  5. It might be useful to begin with a paragraph explaining what happened – what the New York Bar did – before discussing why you think it’s unconstitutional. For Supreme Court cases and the like perhaps we can all be expected to know what happened with no background needed. But that is less likely to be the case for a state bar, a local court decision, etc.

    1. 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.

      1. I seem to recall that NY gives priority to in-state aspiring lawyers in where they can take the bar exam; you have to be a NY resident to take it in/near NYC. If you’re out of state, you’re limited to Albany or Buffalo.

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