A guest post by Lawrence Friedman
As state bar examiners attempt to navigate the administration of this summer’s examination through the challenges posed by the novel coronavirus, some – including New York and Massachusetts – have attracted no small amount of attention by seeking to give priority placement to graduates of in-state law schools. Writing in Justia, Dean Vikram David Amar has argued that such restrictions are unconstitutional because they violate the dormant commerce clause. I have no quarrel with his analysis and here simply anticipate, and respond to, another potential argument defending a preference for in-state law school graduates.
Under the dormant commerce clause, states may not expressly prefer in-state businesses to the disadvantage of their out-of-state counterparts. As Dean Amar notes, the policies embraced by states like New York and Massachusetts, which “explicitly treat all in-state law schools differently than all out-of-state law schools,” effectuate clear discrimination between local and out-of-state interests.
When state rules affirmatively discriminate against interstate commerce, they are subject to demanding judicial scrutiny: as the Supreme Court explained in Maine v. Taylor, the state must carry the burden of demonstrating both that the rule serves a local purpose that is effectively compelling, “and that this purpose could not be served as well by available nondiscriminatory means.”
Here, states like New York and Massachusetts likely could argue that a preference for their in-state law school graduates in the next administration of the bar exam serves the compelling interest in preventing the spread of the novel coronavirus. The latest epidemiological guidance suggests that the spread of the virus is a function of time, space, people, and place. This translates to a relatively simple proposition, as a recent NPR story put it: “The more time you spend and the closer in space you are to any infected people, the higher your risk. Interacting with more people raises your risk, and indoor places are riskier than outdoors.”
A typical administration of the bar examination likely checks all of these boxes, given that it necessarily involves a significant amount of time indoors with people who may be infected. Masks and social distancing could help to blunt the risk, but cannot eliminate it. Moreover, it would be hard to doubt that interest of states like New York and Massachusetts in preventing the potential spread of the virus through out-of-staters sitting for their bar exams in light of the rates of infection they have suffered.
And state bars could rely on the reasoning of Taylor to defend their preference. Taylor is that rare decision in which the Court upheld a state law that discriminated against interstate commerce. There, Maine prohibited the importation of live baitfish and, notwithstanding the express discrimination effected by the rule, the Court agreed that the state had no other available way of protecting its fisheries “from parasites and nonnative species that might be included in shipments of live baitfish.”
The problem with relying on Taylor is that state bar examiners have other means at their disposal to prevent the spread of the coronavirus short of favoring the graduates of their own law schools for seats at the next bar examination. For example, the state could allow the exam to be conducted online, as bar examiners in several jurisdictions have announced. Exam-takers could be asked to self-quarantine for the appropriate amount of time before the exam is administered, and the state could test all takers for the virus prior to allowing them to sit for the exam—both measures that would capture the graduates of in-state law schools who might be infected. The point here is that it seems unlikely that states could not address their compelling interest in curbing the spread of a pandemic through available nondiscriminatory means.
It is always remarkable, as Dean Amar observes, 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.” At the same time, this phenomenon may not surprise regular readers of this blog, with its reports of instances in which courts have failed to acknowledge the implications of policy choices that would be constitutionally suspect were they imposed by other departments of government.