More on the Dormant Commerce Clause and Bar Examiners' Preferences for In-State Schools

|The Volokh Conspiracy |

Vik Amar (a leading constitutional law scholar who is now dean at the University of Illinois College of Law) has a pretty detailed analysis (following up on his shorter column that I blogged about last week). The introduction:

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.

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  1. Some, maybe most or all, state universities have lower tuition for residents than out-of-state students. I’ve always assumed this passes muster because residents are assumed to have paid in taxes. But this makes me wonder … once those students become students and move to the vicinity (in olden times, of course!), how does the university decide who is a resident and who is out of state? Do they ask where the parents live? Do they ask where the students live in the summer? And of course, has anyone ever sued for commerce clause violation?

    1. While I can’t speak for all schools, I can speak to all the ones that my son recently applied to. The fact that the rule was consistent suggests (but does not prove) that it’s a universal rule. Briefly, that rule is:

      If you lived with your parents before starting school, you are still considered a resident of your parents’ home state while you are in school. If you (or your parents) moved recently, residency has a look-back to reduce abuse. In other words, if you want to take advantage of the California schools’ in-state rates, you had to move to CA at least a year before starting school.

    2. In Illinois at least a student could work on campus, change residency, and then pay in-state tuition the next year.

    3. Thanks, @Rossami and @librarian; sounds like anyone paying out of state rates after the first year is wasting a lot of money for no reason.

      I am still curious how this differential passes muster, what the legal justification is. And, as @Longtobefree mentions, there are all the occupational licensing laws, plus gun permits where still required, driver licensesm and no doubt a lot of other resident-only pieces of paper.

      1. There was a Federal decision in the 1970’s, I want to say SCOTUS, that resolved this. After one year of continuous residence, a state must consider you a resident. They can make you change your license and car registration, prove that you have a physical residence in the state, but they gotta do it.

    4. ” how does the university decide who is a resident and who is out of state?”

      There are, of course, about a jillion rules for working this out. Not unlike the rules for student aid qualification for dependent vs. independent students, in that there are a whole bunch of not particularly relevant conditions that have to be met. They look to where you register to vote and pay taxes. If you registered to vote in Washington, California is going to charge you out-of-state tuition to go to UCLA, even though you live in Los Angeles.

  2. Exactly how does this differ from requiring in-state certifications for the bazillion jobs that require state hall passes?

    1. It’s not.

      I think one of the two things is true:

      1. The entire system of using licensing systems to preclude all out of state licensees from practicing professions (or especially the legal profession) has to meet strict scrutiny, and many such schemes will fail.

      OR

      2. There’s an implicit exception to the Dormant Commerce Clause that allows states to enact licensing schemes that, in effect, privilege their own residents, and the law school-bar rule is constitutional.

      I also have a snarky comment about motives here. I find it hilarious that suddenly big law school professors are concerned about state bars violating the dormant commerce clause, when a state might have the gall to think that graduates of its own law schools are more loyal to and knowledgeable of the state and might make better local lawyers than people who to go to Harvard or Yale.

      1. “people who to go to Harvard or Yale”

        Amar is dean of only the 3rd best law school in his state. He should be happy for his students if Illinois does the same limit.

        1. Yeah, but he went to Yale. If Yale Law grads were forced to seek employment in Connecticut, it would rock his world.

          1. “If Yale Law grads were forced to seek employment in Connecticut”

            It would probably kill the Yale law school, And most of the other big law schools on the east coast. And that wouldn’t necessarily be a bad thing.

            1. That’s obviously what’s motivating the A-list law professorate going nuts about this. They know damned well that if states (especially New York, where a lot of hugely paying jobs are) can limit bar examinations to their own law schools’ students, elite law schools would become much less desirable places.

              I would rather the law go in the other direction and more strictly enforce the dormant commerce clause to allow lawyers to have national practices. It’s 2020 and that’s the reality anyway.

              But I would certainly find it hilarious if this caught on, got upheld by the courts, and destroyed Harvard and Yale Law Schools.

      2. “The entire system of using licensing systems to preclude all out of state licensees from practicing professions (or especially the legal profession) has to meet strict scrutiny, and many such schemes will fail.”

        No, it’s worse than even that in that — state residents who attended an out-of-state school (while retaining their residency) are being discriminated against. Take Maine — UMaine Law is a third-rate school and the smart kids go down to Boston and attend Harvard, BC or BU Law. They’re still Maine residents.

        Yet a non-resident who attended UMaine Law — say someone from Hawaii — gets preference over state residents?!?!?

        1. This is an argument for national licensing rather than state-based, or permitting articling to all. You find a state-licensed attorney willing to supervise your work (putting his or her own license on the line) and when the supervisor says you’re good to work on your own, you get your own license to practice.
          If you went that way, it might start to push some of the T4 schools to close, if they start to have trouble placing their graduates with attorneys willing to put their license on the line assuming they’ve been prepared for work in the field. On the other hand, you might get some candidates who forego law school entirely, on the theory that they can learn what they need to learn on the job.
          Alternatively, maybe what you want to try is allowing candidates to specialize in specific areas of law, with some certifying body attesting to candidates’ knowledge of specific subsets of law practice, the way that accountants and IT professionals can work without a degree if they can prove their knowledge to one or more third parties.

    2. Non-residents can get gun permits, in a “may issue” state, it’s often easier to get one because you go through the state police and not the local police.

  3. And to think that Title IX deals with federal funding under the Spending Clause, not the regulation of commerce, because Congress thought that education was not a commercial activity. How exactly do bar exams affect interstate commerce? At how many removes?

    Marriage often involves an exchange of money for sex. It is analytically fungible with prostitution. Like a pot plant grown in a home, non-commercial sex is arguably just a fungible substitute for commercial activities, or worse, an inhibitor of the commercial market. By the current definition of interstate commerce, taken seriously, Congress ought to be able to regulate marriage under the Commerce Clause.

  4. How does this differ from the diploma privilege (no need to sit for bar exam at all) as applies to only in state law schools?

    Wisconsin has had a diploma privilege for graduates of in state law schools since 1870.

    1. See my comment above. It doesn’t. If this violates the dormant commerce clause, a whole bunch of state bar rules and practices do, including the big one, unauthorized practice and pro hac vice rules.

  5. A pretty bad article by Amar.

    He flatly says “This [Wisconsin] diploma privilege is unconstitutional” but the one case he cited said otherwise. Admittedly it was not a final merits decision but Posner was not very impressed by the arguments.

  6. They were all for the expanded Commerce Clause jurisprudence before they were against it.

  7. If you’re gonna complain, go straight to Wisconsin, which allows graduates of the local law school to be admitted without even taking a bar exam.

    1. While Wisconsin is one of the last states left with a diploma privilege, it was not the only one historically. While diploma privileges went out of fashion in the mid 20th century, at one time 32 states had such privileges. And Wisconsin’s isn’t new. It goes back to the 1870s.

      1. Could it be that no one ever challenged it?

  8. States are kicking over a hornets’ nest here — what part of the 6th Amendment’s “Right to Counsel” says that I should be restricted to the graduates of a third-rate law school?

    Read literally, the 6th Amendment means that I can have any damn fool I wish as my counsel, and that any restriction on who may practice law is a violation of *my* Constitutional rights. Not that of the unlicensed non-attorney but that of the person who wants him/her/it as counsel.

    Read literally, the “full faith and credit” clause means that there should be reciprocity between states for bar cards, much like there is for driver’s and marriage licenses. I’m saying “full faith and credit”, not commerce clause here.

    Notwithstanding the above, as long as a state permits equal access to its bar exams, the Perry Mason* can sit for, say, the Maine Bar Exam and hence Maine isn’t denying Mainers his services. But now that he can’t — the state *is*.

    Why isn’t this a denial of the “right to counsel”?

    I don’t want the political hack from UML, I want the bright lawyer from Harvard — and the State of Maine will be denying me that.

    Like I said, hornets’ nest.
    Why not just schedule more bar exams, or rent a bigger hall?

    * I know he is a fictional character…

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