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

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.