Law School Discussion

Federal Courts-One and done?

Re: Federal Courts-One and done?
« Reply #30 on: July 09, 2015, 06:18:56 PM »
I have to generally agree with Groundhog and Loki insofar as the courts almost always uphold bar admission requirements as long as they are reasonable.

BUT, this:

How far does this right go and want state interest is served from preventing a San Joaquin College Law Grad from taking the South Dakota Bar, which is a state so desperate for lawyers that it is paying for lawyers to move there.

strikes me as a potentially successful angle of attack.

Think about the scenario. A lawyer shows up and says "I passed the toughest bar exam in the country on my first try, passed the C&F, passed the South Dakota bar on my first try (assuming you could sit for the exam first), and can demonstrate that my alma mater follows the standard ABA law school curriculum. We use the same books, take the same tests, and have similarly qualified professors."

What reasonable argument can South Dakota make for keeping that guy out? Library too small? Not enough financial aid staff? ABA accreditation is based on many non-academic factors, but if the grad could demonstrate that the academics were substantially the same...I dunno, maybe.

With an online or correspondence course South Dakota may be able to demonstrate that the education is somehow deficient. But San Joaquin has a higher pass rate than some CA ABA schools. Seems like the San Joaquin student would at least have shot at winning.

Re: Federal Courts-One and done?
« Reply #31 on: July 09, 2015, 07:07:29 PM »
None. "Check-Mate"

I would very interested in seeing the opinions were courts denied a bar applicant based on the institution they attended. I am not saying it doesn't exist, but I am really interested in reading the opinions and the court's reasoning.

If anyone can cite to cases can they post on here? Just honestly curious.


Re: Federal Courts-One and done?
« Reply #32 on: July 09, 2015, 08:55:12 PM »
Rational basis would be integrity of the bar, control, etc. Easy to answer this. Sorry but if you believe such a case has merit, I've got a bridge to sell you. Tapping out now because this thread has gone off-topic.

loki13

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Re: Federal Courts-One and done?
« Reply #33 on: July 10, 2015, 06:42:02 AM »
Groundhog is right. In addition, there are Rooker-Feldman issues.

Seriously, I can't believe we're having this conversation. This is some basic issue spotting- some issues are different than other issues, and a person can't just say, "But now we have SSM, therefore anything is possible," to overcome them. Fin.

loki13

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Re: Federal Courts-One and done?
« Reply #34 on: July 10, 2015, 07:11:51 AM »
Also, re: the Maintain issue, if you actually look at South Dakota's requirements, they will allow a non-ABA accredited (or foreign law school grad) to take the bar exam, provided they are licensed in another state and upon a showing of good cause.

Again, most states have some sort of "catch-all," which usually involves a petition of some kind, or standard rules (almost invariably meaning you "domesticate" your non-ABA degree in the state that allows it by passing the bar there). Some are hard (like Florida, that doesn't like out of state practitioners coming in, and requires you to show that you practiced successfully for a long period of time), some appear easy (like South Dakota, with a "good cause"). None are unconstitutional.

Again, this is different if there is a relevant federal law (such as the ADA), or an actual constitutional provision (such as PandI), but simply alleging that a state's licensing scheme creates a barrier to entry to the profession doesn't cut it.

Re: Federal Courts-One and done?
« Reply #35 on: July 10, 2015, 09:27:40 AM »
I'm not arguing that this is an easily overcome issue, or that the hypothetical plaintiff has a great case, etc. Rational basis review is as low as you can go, and it's pretty easy to establish.

I'm pointing out an angle that simply challenges whether the state's actions are in fact rationally related to a legitimate interest. Personally, I don't think they are but I concede that the state would win anyway. 

Re: Federal Courts-One and done?
« Reply #36 on: July 10, 2015, 09:51:55 AM »
The two cases I know of where an attorney challenged the state licensing requirements they were successful.

http://masscases.com/cases/sjc/452/452mass582.html

https://www.law.cornell.edu/supremecourt/text/470/274

The Supreme Court declared practicing law is a fundamental right so it is not routine rational basis.

Again, if there are cases were an attorney was denied I would be very interested in  reading the opinion. I did a brief google search and didn't find any cases that denied an attorney from taking the bar exam if they petitioned a court to do it.

 

 

 


loki13

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Re: Federal Courts-One and done?
« Reply #37 on: July 10, 2015, 10:21:38 AM »
Citylaw,

Seriously, stop digging your hole. In the first case you cite, you don't actually cite, you know, the case. It was done through the approved method of going through the Bar (every bar ends up at the State Supreme Court) for an exemption. That's it. For one person- not a general rule. This petitioner showed that he, individually, should be admitted.

The other case is a classic taught in most law schools, that you have failed to comprehend. But, sure, let's quickly raise to the challenge since you are unable to fine a single (!) case:
DC v. Feldman, 460 U.S. 462 (1983)- dealing with the exact issue you keep raising. If you're unable to follow it, see also Zisse v. Fla. Bar, 747 F.Supp.2d 1303 (2010). Hint- there's an interplay between Rooker-Feldman (as I noted) and the constitutionality/lack thereof.

Next, what is the general rule? You might find the case discussion in MSL at Andover, Inc. v. American Bar Ass'n, 107 F. 3d 1026 (3d Cir. 1997) enlightening. Really. What? Too long ago? How about 2012- there's another decision in E.D. Tenn.

Seriously. This isn't hard.

Re: Federal Courts-One and done?
« Reply #38 on: July 10, 2015, 10:21:52 AM »
The Supreme Court declared practicing law is a fundamental right so it is not routine rational basis.

What level of scrutiny is used, then? Admittedly, I haven't read the cases you linked, but have courts actually articulated a modified form of rational basis review? That would be interesting.

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Re: Federal Courts-One and done?
« Reply #39 on: July 10, 2015, 10:38:02 AM »
"The Supreme Court declared practicing law is a fundamental right so it is not routine rational basis. "

No, no no no no. You have the right to represent yourself (as we all know from our wonderful pro se encounters). In certain contexts, you have the right to appointed counsel. But there is no more "fundamental right to practice law," than there is a fundamental right to be a bricklayer.

This is a simply misreading of the case by Citylawyer. Here, let's see how it's done-

The lawyer's role in the national economy is not the only reason that the opportunity to practice law should be considered a "fundamental right." We believe that the legal profession has a noncommercial role and duty that reinforce the view that the practice of law falls within the ambit of the Privileges and Immunities Clause.

But wait- notice how fundamental right is in quotation marks? Why? Because of nn. 10 & 11. Read them. There, the Court describes the 1825 "fundamental right" / "natural rights" P&I test, and then state that it is no longer used (in terms of natural rights). Cf. Corfield. But they still use the categories. So when they use "fundamental right," there, they mean that it falls under the Corfield test, not that it is a fundamental right.

/facepalm.