The COVID-19 pandemic has profoundly disrupted the courts and the legal profession, just when access to justice is most needed. The public health crisis has generated a host of legal issues in areas as diverse as disaster relief, health law, disability issues, insurance, employment law, criminal justice, domestic violence, and civil rights. The need for lawyers to address these issues is great, but courts are struggling to license new lawyers due to the serious health consequences of administering the bar examination during the pandemic.
States are coping with these licensing challenges in varied ways, embracing alternative paths to licensure. For example, Utah will license some JDs who complete 360 hours of supervised practice, while Indiana and Nevada will administer abbreviated exams remotely. Most states still plan to administer conventional exams, but many realize that social distancing measures will limit the number of seats available. A few states—most notably New York and Massachusetts—have declared that they will prioritize graduates of in-state law schools when allocating those seats. Stakeholders, meanwhile, continue to encourage emergency diploma privileges.
These decisions raise difficult policy issues. If a state chooses to recognize an emergency diploma privilege, which schools and graduates should qualify? If prioritizing limited seats, which test-takers stand first in line? Should states prefer first-time test takers over repeaters? JD graduates over LLMs? Or should states give first priority to test-takers with jobs in legal aid offices, public defenders, and other organizations starved for lawyers?
In addition to resolving these policy issues, states must consider at least two constitutional constraints on their choices. First, the Privileges and Immunities Clause of Article IV prevents states from discriminating against non-residents with respect to fundamental constitutional rights and the right to earn a livelihood. The right to practice law in a state is one of the “privileges” protected by this clause. A state, therefore, could not grant a diploma privilege exclusively to its residents or prioritize residents for limited exam seats without demonstrating that the restriction is closely related to the advancement of a substantial state interest.
So far, states have avoided violating the Privileges and Immunities Clause. No state has yet proposed an emergency diploma privilege limited to state residents. Wisconsin, the only state with a pre-COVID diploma privilege, extends that privilege to all graduates of its in-state schools regardless of their residency. Utah’s limited emergency privilege is applicable to all law schools in the nation that meet a specified bar passage rate. Likewise, states have not yet attempted to allocate limited exam seats to state residents on a preferential basis.
States have been less careful about complying with a second constitutional constraint, the Dormant Commerce Clause. That doctrine, which prohibits states from placing an undue burden on interstate commerce, protects our unified national economy. The Supreme Court has devised two tests for assessing state action under this doctrine. The first test was set forth in Granholm v. Heald. It states that if a state discriminates against out-of-state businesses, it must demonstrate a non-protectionist and important state purpose that cannot be achieved by non-discriminatory means—a difficult test to meet. However, as explained in Pike v. Bruce Church, Inc., if the state law has only indirect effects on interstate commerce, it is subject to a far more lenient balancing test that weighs the state’s interests against the burden on interstate commerce.
Law schools are businesses. When a state confers a diploma privilege on graduates of in-state schools while denying that privilege to graduates of out-of-state schools, it provides an economic benefit to the in-state schools. The diploma privilege, which allows graduates to skip the time, expense, and anxiety of taking a bar exam, is an advantage that in-state schools can market to applicants. Out-of-state schools lack the same opportunity, a distinction that the Dormant Commerce Clause is designed to avoid.
A court might well view this type of diploma privilege as discriminatory on its face. In that case, the state would have to make an exceedingly strong showing that the educational program at in-state schools provides substantial opportunities for students to demonstrate their competence that out-of-state schools lack. If a court concluded that the privilege was not discriminatory, perhaps because of its even-handed operation on residents and nonresidents, or its minimal impact on interstate commerce, the state’s burden would be far less. It would still, however, have to justify the privilege by tying it to the type of competencies in-state students develop and the avenues they have to demonstrate those competencies to the state’s practicing bar.
As we explain in a recent article, states adopting in-state diploma privileges as emergency measures could struggle to make either of these showings, though states establishing more lasting diploma privileges might have a better chance of laying the groundwork to establish the needed support for this type of privilege. A state that limited its in-state diploma privilege to public law schools could defend its privilege under the market participant exception to the Dormant Commerce Clause. These windows of constitutionality, however, are quite narrow. Especially when responding to the COVID-19 pandemic, states should focus on diploma privileges that avoid favoring in-state schools.
Unfortunately, not all states are heeding constitutional constraints. The bar seating preferences announced by New York and some other states almost certainly violate the Dormant Commerce Clause. What rationale could New York advance for its decision? The state’s adoption of the UBE and accompanying decline of state-law courses in New York’s law schools weakens any argument that in-state schools better prepare their students for in-state practice. An argument that the preference is designed to contain the COVID-19 virus by limiting travel is undermined by the fact that online classes have allowed New York-based law school students to move to other states. It’s further undermined by the absence of any travel restrictions on those students who remained in-state to complete their studies. New York’s order, moreover, overtly encourages test-takers to seek exam seats in other states, fostering the very cross-pollination public health officials warn against.
Bar-seating rules that prefer graduates of in-state law schools may be well intentioned; courts want to support colleagues and students from their state. But that is just the type of protectionism that the Constitution forbids. Pandemics are a time for us to join together as a nation and professional community—and to honor the Constitution that governs us.
The Collaboratory is a group of eleven scholars who have studied and written about the bar exam and licensing for many years. In a policy paper published on March 23, 2020, we pooled our knowledge to offer suggestions for how jurisdictions might continue licensing new lawyers in the face of the COVID-19 pandemic. Members of the Collaboratory are: Claudia Angelos (NYU); Sara Berman (AccessLex Institute); Mary Lu Bilek (CUNY); Carol L. Chomsky (University of Minnesota); Andrea Anne Curcio (Georgia State); Marsha Griggs (Washburn); Joan W. Howarth (UNLV); Eileen R. Kaufman (Touro); Deborah Jones Merritt (Ohio State); Patricia Salkin (Touro College); Judith W. Wegner (University of North Carolina). The authors have contributed to the article and this blog post as individual scholars and not as representatives of their respective institutions.