470 U.S. 274 (1985)
Kathryn Piper resided in Lower Waterford, Vermont, approximately 400 yards from the New Hampshire border.1 In 1979 she applied to take the February 1980 New Hampshire bar examination and included a statement of intent to become a New Hampshire resident.2 After an investigation the Board of Bar Examiners determined that Piper possessed good moral character and satisfied the remaining admission criteria.3 She took and passed the examination but was advised that she must establish a home address in New Hampshire before being sworn in.4
On May 7, 1980, Piper asked the Clerk of the New Hampshire Supreme Court for an exemption from the residency requirement.5 She explained that she had a possible job with a lawyer in Littleton, New Hampshire, yet becoming a resident would be inconvenient because her Vermont house carried a favorable mortgage interest rate and she and her husband had recently become parents.6 The Clerk denied the request on May 13, 1980.7 Piper then formally petitioned the New Hampshire Supreme Court for admission, asserting that her circumstances were unique enough to warrant an exception without creating precedent.8 The court denied her petition on December 31, 1980.9
On March 22, 1982, Piper commenced an action in the United States District Court for the District of New Hampshire against the Supreme Court of New Hampshire, its five Justices, and its Clerk.10 She challenged Rule 42, which excludes nonresidents from the bar, on the ground that it violates the Privileges and Immunities Clause.11 The District Court granted her motion for summary judgment on May 17, 1982.12 An evenly divided Court of Appeals for the First Circuit, sitting en banc, affirmed the judgment in 1983.13 The Supreme Court of New Hampshire appealed, and the United States Supreme Court noted probable jurisdiction.14
Whether New Hampshire's rule limiting admission to the bar to state residents violates the Privileges and Immunities Clause of Article IV, Section 2 of the United States Constitution?15
The Privileges and Immunities Clause protects only those privileges bearing on the vitality of the Nation as a single entity.16 A state may discriminate against nonresidents only where there is a substantial reason for the difference in treatment.17 The discrimination must also bear a substantial relationship to the state's objective, considering the availability of less restrictive means.18
Yes. Rule 42 barred nonresident Kathryn Piper, who resided 400 yards from the border in Vermont, maintained a possible job in Littleton, New Hampshire, passed the bar examination after the Board found her of good moral character, and sought only a dispensation from residency due to her favorable mortgage and recent parenthood.19 The opportunity to practice law qualifies as a protected privilege because lawyers play an important part in commercial intercourse and may vindicate unpopular federal claims unavailable to resident counsel.20 New Hampshire advanced no substantial reason for excluding nonresidents on grounds of familiarity with local rules, ethical conduct, availability for hearings, or pro bono service.21
The absolute residency bar was not closely tailored when less restrictive alternatives such as mandatory local counsel for unscheduled matters or periodic seminars existed.22
New Hampshire's bar residency requirement violates the Privileges and Immunities Clause.23
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Justice White concurred in the judgment only as applied to Piper.24 He noted that Piper lives only 400 yards from the border and will maintain her only law office in New Hampshire while commuting from Vermont.25 Because of this proximity and her intent to practice solely in the state, she presents no special threat to New Hampshire's interests in maintaining professional competence, staying abreast of local rules, being available for sudden hearings, or performing pro bono work that is not already shared by resident lawyers.26
He therefore concluded that the Privileges and Immunities Clause forbids her exclusion.27 However, he declined to reach the facial validity of the residency requirement or questions about conditioning bar membership on maintaining an in-state office, preferring to leave those issues for another day.28
Justice Rehnquist dissented, arguing that the practice of law is fundamentally different from other occupations because it is almost by definition tied to a state's independent legal system.29 Each state maintains its own laws created by its legislators and judges, and lawyers play a key role in shaping state policy through adversary representation.30 This distinction gives the state a substantial interest in maximizing the number of resident lawyers to enlarge the pool from which lawmakers can be drawn and to ensure familiarity with local concerns.31
He criticized the majority for improperly second-guessing the state's interest through a less-restrictive-means analysis borrowed from First Amendment doctrine, which he viewed as an inappropriate and unmanageable approach in the privileges and immunities context.32
Whether the opportunity to practice law constitutes a privilege protected by the Privileges and Immunities Clause?33
The Privileges and Immunities Clause protects the right of citizens of one state to do business in another state on terms of substantial equality.34 This includes occupations important to the national economy and the maintenance of the Union.35 A lawyer is not an officer of the state in a political sense whose functions can be entrusted only to residents.36
Yes. The practice of law qualifies because, like the shrimp fishing in Toomer and pipeline work in Hicklin, it contributes to commercial intercourse.37 Nonresident lawyers often vindicate federal rights that resident counsel might avoid.38 Under In re Griffiths, a lawyer makes independent decisions, collects fees, and runs a business rather than exercising core governmental power reserved to full political community members.39
New Hampshire could not exclude Piper solely on residency when she otherwise met all admission criteria including good moral character.40
The opportunity to practice law constitutes a privilege protected by the Privileges and Immunities Clause.41
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Justice Rehnquist rejected the premise that law is merely another interstate business subject to the same privileges analysis as shrimp fishing or pipeline work.42 He emphasized that states independently create their own laws and legal systems responsive to local interests. Lawyers who formulate state policy through representation and serve in civic roles tied to local concerns occupy a position warranting residency requirements.43
The majority's focus on creating a national economic union improperly disregarded this fundamental distinction between law and other trades that readily translate across state lines.44
Whether New Hampshire's asserted justifications for its bar residency requirement satisfy the substantial reason and substantial relationship requirements under the Privileges and Immunities Clause?45
A state must advance a substantial reason for discriminating against nonresidents.46 The state must also show that the discrimination bears a close or substantial relationship to its objective.47 This analysis takes into account whether less restrictive means are available to achieve the same ends.48
No. New Hampshire offered no evidence that nonresidents would be less familiar with local rules or less ethical.49 Its concerns about availability for short-notice hearings and pro bono work could be met by requiring distant lawyers to retain local counsel or by imposing mandatory service obligations equally on all members.50 The absolute bar was both overinclusive, excluding convenient-border nonresidents like Piper who passed the examination and intended to practice in Littleton, and underinclusive, allowing former residents to retain bar membership after moving away.51
New Hampshire's asserted justifications for its bar residency requirement do not satisfy the substantial reason and substantial relationship requirements under the Privileges and Immunities Clause.52
Related opinions on this issue
Justice White agreed that Piper's proximity to the border and maintenance of a New Hampshire law office eliminated any special threat to the state's interests in competence, availability, or pro bono service.53 This rendered the state's justifications insufficient as applied to her situation.54 He nevertheless left open for another day broader facial questions about whether the state may constitutionally condition membership in the bar upon maintaining an office for the practice of law within the state.55
Justice Rehnquist maintained that the justifications were substantial because residency enlarges the pool of lawyers available for legislative and judicial roles and ensures intimate knowledge of local concerns in policy formulation.56 It also reduces scheduling delays in litigation by ensuring counsel is readily available.57 These interests the majority could not legitimately override by hypothesizing alternative means, as the less-restrictive-means analysis is ill-advised in this context and places courts in the position of second-guessing legislative decisions.58