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September 4, 2014

Waiving into state bars: a constitutional problem?

by Dan Rodriguez

Historically, only Wisconsin permitted law students who attended law school within the state (at U. Wisconsin or Marquette) to automatically waive into the state bar upon graduation.  In recent months, a number of other states, including Iowa and New Hampshire have proposed the same rule.  Rumor has it that New York (and perhaps some other states) are considering this option as well.

A very prominent constitutional law scholar wrote me earlier to note that this arrangement may well violate the Constitution’s dormant commerce clause.  He makes a convincing case, at least, that there is a plausible constitutional argument against these rules.  The logic is basically this:

What the state is doing is providing an economic good — a license to practice law within the state — to folks who have purchased services in the state, and denying this same good to individuals who have purchased services elsewhere.  Note that they are not discriminating in favor of their state residents, which is arguably permissible under existing doctrine.  A New Jersey resident attends law school in Iowa and gets waived in by virtue of their attendance (and tuition paid) in Iowa.  An Iowa resident gets the same benefit.  However, the Iowa resident who attends law school in Illinois gets no such benefit.  In short, there is discrimination based not upon the residency of the law student, but upon where they “purchase” this economic good.  Moreover, the intent certainly is to benefit the in-state law schools — not state law schools, but in-state law schools, since this rule applies to private as well as public schools.

An interesting constitutional claim, not obviously compelling, but strong nonetheless.

What do you think?  Happy to post comments (attributed and on-topic, please).

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