Supreme Court of N.H. v. Piper
470 U.S. 274 (1985)

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U.S. Supreme Court

Supreme Court of N.H. v. Piper, 470 U.S. 274 (1985)

Supreme Court of New Hampshire v. Piper

No. 83-1466

Argued October 31, 1984

Decided March 4, 1985

470 U.S. 274


Appellee, a resident of Vermont, was allowed to take, and passed, the New Hampshire bar examination. But pursuant to Rule 42 of the New Hampshire Supreme Court, which limits bar admission to state residents, she was not permitted to be sworn in. After the New Hampshire Supreme Court denied appellee's request that an exception to the Rule be made in her case, she filed an action in Federal District Court, alleging that Rule 42 violates the Privileges and Immunities Clause of Art. IV, § 2, of the United States Constitution. The District Court agreed, and granted appellee's motion for a summary judgment. The Court of Appeals affirmed.

Held: Rule 42 violates the Privileges and Immunities Clause of Art. IV, § 2. Pp. 470 U. S. 279-288.

(a) Derived, like the Commerce Clause, from the fourth of the Articles of Confederation, the Privileges and Immunities Clause was intended to create a national economic union.

"[O]ne of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State."

Toomer v. Witsell, 334 U. S. 385, 396. Moreover, although a lawyer is "an officer of the court," he does not hold a position that can be entrusted only to a "full-fledged member of the political community" and thus is not an "officer" of the State in any political sense. In re Griffiths, 413 U. S. 717. Therefore, a nonresident's interest in practicing law is a "privilege" protected by the Clause. Pp. 470 U. S. 279-283.

(b) A State may discriminate against nonresidents only where its reasons are "substantial" and the difference in treatment bears a close or substantial relationship to those reasons. None of the reasons offered by appellant for its refusal to admit nonresidents to the bar -- nonresidents would be less likely to keep abreast of local rules and procedures, to behave ethically, to be available for court proceedings, and to do pro bono and other volunteer work in the State -- meets the test of "substantiality," and the means chosen do not bear the necessary relationship to the State's objectives. Pp. 470 U. S. 284-287.

723 F.2d 110, affirmed.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ.,

Page 470 U. S. 275

joined. WHITE, J., filed an opinion concurring in the result, post, p. 470 U. S. 288. REHNQUIST, J., filed a dissenting opinion, post, p. 470 U. S. 289.

Primary Holding
The Privileges and Immunities Clause does not permit states to institute a residency requirement for the practice of law.
Piper passed the New Hampshire bar exam but was prevented from being admitted to the bar under Rule 42 of the New Hampshire Supreme Court, which limited admission to residents of the state. She lived in Vermont, just across the New Hampshire border. Piper brought a claim to challenge the constitutionality of this rule under the Privileges and Immunities Clause. She prevailed in the lower courts.



  • Lewis Franklin Powell, Jr. (Author)
  • Warren Earl Burger
  • William Joseph Brennan, Jr.
  • Thurgood Marshall
  • Harry Andrew Blackmun
  • John Paul Stevens
  • Sandra Day O'Connor

As a preliminary matter, the practice of law may be defined as a privilege under the Privileges and Immunities Clause because it plays a significant role in the national economy. States still may discriminate against non-residents under the Clause, but only if there is a substantial reason for the discrimination and if there is a clear relationship between the discrimination and the legitimate objectives that it serves. There must not be a less restrictive means of achieving the same objectives. The state has no substantial interest in this matter, since its justification for the law are relatively trivial, such as concerns thta non-residents would be less likely to be available for court proceedings, stay current with local laws and procedures, behave ethically, or perform pro bono work in the state. There also is no clear relationship between the means and the goal, while there are less restrictive ways of furthering the same goals.


  • William Hubbs Rehnquist (Author)

The practice of law is defined differently in each state and subject to different regulations. States do have a substantial interest in admitting only their own residents to the bar, since they perform a function less similar to businesses in interstate commerce than to politicians and judges. A residency law is a rational way to accomplish this goal, and it is not necessary to consider whether a less restrictive means also could have accomplished it. There always will be a less restrictive means, but this approach encourages courts to intrude on the sphere of the legislature. The use of local co-counsel is not an effective way to resolve the problem of providing emergency representation to residents.


  • Byron Raymond White (Author)

Case Commentary

The Court found that practicing law is a fundamental right for a licensed lawyer, so it must be protected unless the state has a significant interest in treating non-residents differently and uses a means that is substantially related to the interest. The government failed to do that in this case. Curiously, the Court also emphasized the importance of lawyers from out of state in bringing claims that would be too unpopular for resident lawyers to bring.

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