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Is Wisconsin Diploma Privilege in Danger?

Apparently some of the judges on the U.S. Court of Appeals for the Seventh Circuit are skeptical of the state's defense. [LvAlthouse]

Related Posts (on one page):

  1. Wisconsin Diploma Privilege in Danger:
  2. Is Wisconsin Diploma Privilege in Danger?
FantasiaWHT:
As a Marquette student, NONE of my first year courses OR any of the additional mandatory courses (to earn that diploma privilege) had a Wisconsin focus. Sure, there are plenty of Wisconsin-focused elective courses, but my intuition would be that state focus is normal at almost any law school.

That being said, the dormant commerce clause is a fantasy. The equal protection argument is almost a non-starter, because the State has a compelling interest in encouraging the graduates of its two law schools to remain and practice in the state.
4.11.2009 11:43am
Richard Riley (mail):
Wisconsin is the last state with diploma privileges. My home state of Mississippi was the next-to-last, and they abandoned it when a second law school besides Ole Miss opened in the state about 20 years ago. Now everybody has to take the bar exam there.

If this chap wants to litigate diploma privileges in Wisconsin, let him at it, but really what is the harm? Or more to the point, what is the remedy? As one of the judges pointed out (see linked article), it's not as though Wisconsin would ever, as a practical matter, extend diploma privileges out-of-state law school graduates - what will happen is that Wisconsin will make everybody take the bar exam.

So a big fight for no benefit to him or anybody else, except the psychic benefit of seeing "discrimination" eliminated (so the guy claims), which seems mighty thin gruel to me.
4.11.2009 11:54am
David M. Nieporent (www):
That being said, the dormant commerce clause is a fantasy. The equal protection argument is almost a non-starter, because the State has a compelling interest in encouraging the graduates of its two law schools to remain and practice in the state.
It does? Why? Is Wisconsin suffering [sic] from a shortage of lawyers?

(The state might have an interest in encouraging graduates of its own law school to stay in Wisconsin -- else, what's the point of a public law school? -- but Marquette is private.)
4.11.2009 12:07pm
FantasiaWHT:
David, aren't all states concerned with keeping their graduates of universities (at all levels) in the state?
4.11.2009 12:16pm
Alan Gunn (mail):
The graduates most strongly encouraged to stay are those who fear bar exams, so I suppose one effect of these things is to lower the average quality of the state's bar. Another would be to make in-state law schools less likely to offer same-state bar prep courses, like the "New York Practice" course Cornell used to have. (It was actually an interesting subject, as New York has a lot of odd rules.)
4.11.2009 12:21pm
TerrencePhilip:
Perhaps the case can't be decided on the pleadings. But diploma privilege might still be saved- suppose they altered the rule to grant diploma privilege to a graduate of any law school that offered specified courses in Wisconsin civil procedure, real estate, probate law, etc, and the student had taken and passed the courses. Almost no school outside Wisconsin would offer such courses (except perhaps those in neighboring states).

Also, I got a big laugh out of the following comment under the linked story: Posner has shown a consistent and considerable disdain throughout his time on the Seventh Circuit for Wisconsin, Wisconsin law, and Wisconsin's law schools. His comments at oral argument appear to be the melding of this disdain and his ever-present snarkiness. I couldn't tell you if he really does disdain Wisconsin, but somebody apparently needs a hug.
4.11.2009 12:23pm
ArthurKirkland:

suppose they altered the rule to grant diploma privilege to a graduate of any law school that offered specified courses


Whether a school offers a course of instruction with respect to state law seems irrelevant; I could understand (but would not necessarily agree with) an argument based on a student's successful completion of such a course.
4.11.2009 1:53pm
Mark S. Devenow Esq. (mail):
The "diploma privilege" may or may not be defensible as a matter of public policy, but I fail to see how this might be held to form a significant enough discriminatory barrier/fence to the flow of commerce between states to trip the latent commerce clause. Also, Wisconsin, as a factual matter, is probably better positioned to defend such practice than say Michigan which hosts one "law school" (Thomas M. Cooley)which boasts about being open to anyone with so much as a pulse and a temperature approximating 98.6 degrees and amounts to nothing more (or better) than a barbers' college.
4.11.2009 2:00pm
DrGrishka (mail):
As one judge on the panel points out, this is just an attempt to keep the guild small. Really?! You don't say! But aren't most (if not all) licensing schemes of whatever kind, just an attempt to keep the guild small?

Ask any doctor who took the US Medical Licensing Exam Step I (which tests "basic sciences") if he remembers the Krebs Cycle or anything else from biochemistry or basic pharmacology or histology. And yet, this is not only what needs to be known in order to get licesnsed, but what, by and large, determines which residency you will end up in. Somehow, the person who can score higher on a subject which he will never think about ever again, will get more prestigious and more exclusive residency in a better-compensated field.

Same with law. When Judge Priscilla Owen was nominated to the bench, we heard countless times that she was the top scorer on the TX Bar Exam. As if that indicated her ability to deal with, say, complex questions of admiralty law which are often litigated in the 5th Circuit. (To be sure, there were plenty of other criteria which indicated her qualifications, but the mention of her score on a bar exam 20 years ago seems to be silly and absurd).
4.11.2009 2:19pm
David M. Nieporent (www):
David, aren't all states concerned with keeping their graduates of universities (at all levels) in the state?
Many seem to be, but is "concerned with" the same as "compelling state interest"? What is that interest?
4.11.2009 2:45pm
jviss (mail):
What is "diploma privilege?" I went to wikipedia to find out (non lawyers read this blog, you know!). I also found out:

"Most recently, West Virginia did away with the privilege in 1988, preceded by Montana and South Dakota in 1983 and Mississippi in 1981." (which is contrary to an earlier comment).

So, so what? Licensing schemes have good and bad aspects to them. I'm an engineer. We have the PE, which few in my field, electrical, pursue unless it's a core job requirement, such as for power engineers. I wish there was some more regulation, as I don't like it when non-degreed folk carry job titles of engineer, like "Certified Netware Engineer." I think Texas is the only state that outlaws this (or used to, anyway).

For law, I think it's important, and I think the bar exam is probably important. I have heard, though, that standards vary dramatically, at least based on failure rates ('though I don't think that's an objective standard).
4.11.2009 2:56pm
Vosburger:
Does anybody else find this especially hilarious since Judge Wood and Judge Posner both teach at the University of Chicago law school? That's quite the unlucky draw for that poor lawyer.
4.11.2009 3:08pm
corneille1640 (mail):

I wish there was some more regulation, as I don't like it when non-degreed folk carry job titles of engineer, like "Certified Netware Engineer."

I know. A lot of so-called "engineers" these days don't know the first thing about running a Railroad.
4.11.2009 3:26pm
Richard Riley (mail):
Live and learn. I definitely thought that Mississippi and Wisconsin were the last two states with diploma privileges but I'm willing to rely on the plausible Wikipedia entry noted above that says a few other states maintained the privilege into the 1980s. Apparently Wisconsin is indeed the last one standing.
4.11.2009 3:39pm
TerrencePhilip:
DrGrishka, I can't speak to medical licensing exams, but as has been discussed many times, no test is a perfect measure of future competence in a particular field; yet we find that even if they are rough filters, undergrad grades, LSAT scores, law school exams, and bar exam performance, show enough correlation that employers find them serviceable enough filters to aid in deciding among candidates. Judge Owen has not been on the 5th Circuit a great deal of time, but she has done a capable job there so far; I too found the bragging about her bar exam results odd, mainly because I didn't realize Texas kept up with such rankings. But lawyers regularly tout their law review experience or status as tops in their class, decades after law school; it's not irrefutable proof they will be good judges or at some other job, but it strongly suggests you're not dealing with a dummy. There's a lot of people taking the Texas bar every year, and if you did a better job than all of them, you did a damn good job.

For all that, Wisconsin doesn't seem to suffer so far as I can tell, by allowing graduates of in-state schools to skip the bar exam. Perhaps, as I suggested above, they could save the practice by limiting admission to grads who had passed a core group of Wisconsin-centric classes; almost no schools outside Wisconsin would offer this curriculum.

I'm not familiar with Wisconsin but get the impression they feel the Chicagoans look down on them as backward yokels. And a lot of them probably do.
4.11.2009 3:51pm
DrGrishka (mail):
TP,

I am not suggesting that the Bar exam doesn't measure something. Surely, it does. My point is that it too is a tool to "keep the guild small." As a corollary to Judge Owen example, there is also Kathleen Sullivan who failed the California bar. That suggests two things. A) The correlation between being a good lawyer and a good bar exam-passer is rather tenuous and B) the requirement for Ms. Sullivan to take the exam in the first place, even though she was going to advise the law firm on matters that have little or nothing to do with California law, merely because the advising was going to take place in California, is nothing but an attempt to limit the pool of such advisors.
4.11.2009 4:13pm
GatoRat:
If Wisconsin wanted to grant licenses to people who can stand on one leg and rub their head, whose so say they can't? This simply isn't the business of anyone but residents of Wisconsin, no matter what tangled theory has been invented.
4.11.2009 5:02pm
ChrisIowa (mail):
jviss @2:56 pm

So, so what? Licensing schemes have good and bad aspects to them. I'm an engineer. We have the PE, which few in my field, electrical, pursue unless it's a core job requirement, such as for power engineers. I wish there was some more regulation, as I don't like it when non-degreed folk carry job titles of engineer, like "Certified Netware Engineer." I think Texas is the only state that outlaws this (or used to, anyway).

I'm an engineer also. When I took the PE exam (30 years ago) I completed the the 4 hour afternoon session in less than 45 minutes and passed. I thought the requirement of an exam to be useless, but then I also met some who have taken the PE multiple times without passing. (None of them graduates of Iowa State.)

As one who tends strongly libertarian, this is very troubling.
4.11.2009 5:05pm
Anon1111:

If Wisconsin wanted to grant licenses to people who can stand on one leg and rub their head, whose so say they can't? This simply isn't the business of anyone but residents of Wisconsin, no matter what tangled theory has been invented.


Discriminates against femurally deficient law students.
4.11.2009 5:08pm
ChrisIowa (mail):
I think Alan Gunn stated the main effect with this:

The graduates most strongly encouraged to stay are those who fear bar exams, so I suppose one effect of these things is to lower the average quality of the state's bar.

and as one who tends libertarian, this remains very troubling.
4.11.2009 5:09pm
TerrencePhilip:
I am not suggesting that the Bar exam doesn't measure something. Surely, it does. My point is that it too is a tool to "keep the guild small." As a corollary to Judge Owen example, there is also Kathleen Sullivan who failed the California bar. That suggests two things. A) The correlation between being a good lawyer and a good bar exam-passer is rather tenuous and B) the requirement for Ms. Sullivan to take the exam in the first place, even though she was going to advise the law firm on matters that have little or nothing to do with California law, merely because the advising was going to take place in California, is nothing but an attempt to limit the pool of such advisors.

Kathleen Sullivan's experience- the experience of one person- may "suggest" certain things, to you and maybe others. But you do acknowledge that her solitary example does does not prove your two propositions?
4.11.2009 5:16pm
DrGrishka (mail):
TP,

I think it does prove proposition B. Here we have a leading law professor, a former dean at a top-3 law school who is seeking to use that expertise in advising clients. I seriously doubt that she was going to be advising anyone on California's say tort or matrimonial law. After all, her expertise is in federal constitutional law, which (9th Circuit notwithstanding) is generally uniform "from the mountains to the praries to the oceans." It therefore seems to be exceedingly silly to require a person like that (who, btw, is licensed in another jurisdiction) to sit for an exam which does not even remotely measure her ability to practice the type of law she is going to practice. Nor does it send any signal to clients. (Do you really think that clients who would have Ms. Sullivan advise them on federal constitutional law care one whit whether or not she is admitted in California?)

Although Kathleen Sullivan is the most egregious example, she is certainly not unique. There are hundreds of experienced lawyers who, for one reason or another, seek to move to California and continue their practice of (for instance) patent law. Again, this is an area where the local California rules and laws are completely irrelevant. Yet, these are the rules that must be learned in order for the lawyer to get permission to continue his practice in the state.

It seems to me that no conclusion, other than California's system is designed to keep the pool of lawyers small(er), is possible.
4.11.2009 5:48pm
Fedya (www):
Although Kathleen Sullivan is the most egregious example, she is certainly not unique. There are hundreds of experienced lawyers who, for one reason or another, seek to move to California and continue their practice of (for instance) patent law. Again, this is an area where the local California rules and laws are completely irrelevant.

To steer this back to Wisconsin, consider the case of former Green Bay Packers capologist Andrew Brandt, who was generally considered excellent at managing the NFL salary cap. He was never licensed to practice law in Wisconsin, and was apparently disbarred in Washington DC for not paying the protection racket. Managing the salary cap has nothing to do with any one state's law.

(Sorry, lawyers, I really do mean protection racket. The guy graduated from a reputable law school, and apparently passed the bar exam at some point, since he was licensed at one time.)
4.11.2009 6:50pm
Brian G (mail) (www):
As a matter of principle, I think every law school graduate who wants to practice law should take a bar exam somewhere.
4.11.2009 9:59pm
lawgirl11:
I'm a student at UW Law and just wanted to point out that when Judge Posner said this, he wasn't entirely correct:



Stating that he doubted there is any Wisconsin content taught in Wisconsin law schools, Posner observed, "They use standard casebooks, which are national."


We are forced to use a casebook for K that is very poorly put together and is filled with the kind of very "Wisconsin" cases that would make you laugh. Additionally, all of the 1Ls are required to take a semester of Substantive Criminal Law as well as Criminal Procedure. Both of these courses utilize the Wisconsin Statutes, and a self published book put together by UW Profs. I would certainly say that my Ks course and both Crim Law courses have been substantially different from other law schools.

I'm not arguing for or against diploma privilege, but just wanted to point that out.
4.11.2009 10:09pm
TerrencePhilip:
lawgirl11, I from reading the account of the oral argument I assumed that was the case (given the comments of the lawyers). Posner I guess was just saying that stuff off the cuff. But while he might be correct that the case can't be resolved on the pleadings, he has no license to make up facts either. Maybe this case can be successfully defended on summary judgment down the road; or maybe not.

If they can't straighten out this mess soon, I guess you should plan for bar review in your future!
4.11.2009 10:15pm
areader (mail):
What's odd to me is that when I took the bar exam (admittedly in Oregon rather than Wisconsin) there were very few subjects that even required a knowledge of state law. Even most of the "state" essays used either federal subjects or the same made-up common law the MBE did. I think I learned a smattering of Oregon admin law, civ pro and evidence law and . . . that is basically it.
4.11.2009 10:19pm
albert:
areader,

there is greater expense and headache in the bar concocting and grading the exam itself.

Case in point: a couple years before I took the Louisiana bar, the official "answer" to one of the constitutional law problems was demonstrably wrong (if I recall, the question involved the constitutionality of regulation of midwives. Part of the facts of the problem included a bit about the plaintiff telling someone else about her desire to enter the profession- and the official answer said you were supposed to analyze this economic regulation as a "free speech" case!). Embarrassingly, people who correctly analyzed the problem got low scores.
4.11.2009 10:26pm
David M. Nieporent (www):
If Wisconsin wanted to grant licenses to people who can stand on one leg and rub their head, whose so say they can't? This simply isn't the business of anyone but residents of Wisconsin, no matter what tangled theory has been invented.
And nobody argues otherwise. The issue here is whether they can grant licenses only to certain people who can stand on one leg and rub their head.
4.11.2009 10:51pm
~aardvark (mail):
Posner always behaves like a jerk and has no regard for facts--if the facts of the case don't fit his preconceptions, he just makes them up. He may be a genius when it comes to anti-trust litigation, but he's an idiot in almost everything else. And he's now dragging Wood with him.

Judge Diane Wood also said, "It is totally fictional that students learn Wisconsin law at Marquette or Wisconsin any more than they would learn in North Dakota or Oklahoma."

I don't know what they teach at Marquette (FantasiaWHT claims that it's not Wisc law), but lawgirl11 is correct at least when it comes to Crim. The entire first year sequence is based on Wisconsin law--not just that, but the UW law profs that teach both Substantive Crim and CrimPro are the ones who wrote virtually the entire state code.

I disagree with lawgirl11's assessment of the Contracts sequence. The "self-published" book is actually published by Lexis and is a fairly standard UCC-based text that is used in a number of other schools (note that the contracts sequence is reversed at UW, as is CivPro). The selections out of the text and the additional cases used in the course do have a Wisconsin bend, however. The same can be said about such required courses as T&E. The writing courses--also required, of course--have substantial Wisconsin content as well. For example, at least one of the three major cases on which students build their briefs and memos is based in Wisconsin and requires understanding of the state bar quirks.

What I also find interesting is that there is a substantial number of graduates who stay in Wisconsin. Those interested in criminal law tend to hang around. Those who want to work for big firms go to Chicago, DC and NYC--well, at least, they did until this year. It is completely incorrect to claim that only those afraid of bar exams stay in-state. I know a number of students who passed bar exams in other states but chose to stay in Wisconsin.

Irrespectively of what one thinks of the diploma privilege--I certainly have no problem with it even though I have little interest in taking a Wisconsin job--the discussion once again exposes Posner as a little tyrant who lack logical ability. One of his admirers wrote a few years ago that Posner could go home and produce a pair of 30-page opinions overnight. This is not surprising because where he did not have the facts, he would simply make them up and fill in the law as he saw it should be. He is rarely opposed within the Circuit, apparently because of his reputation and his temper. But when he goes on public tirades on non-legal subjects, he becomes a national laughingstock. At one point, he tried his hand at writing OpEds in the NYTimes and the Boston Globe, decrying lack of public intellectuals in the US--undoubtedly, envisioning them being in his own mold. The essays were so inept and incoherent that they could have been used as models of poor logic for college student instruction.
4.12.2009 2:17am
albert:
~aardvark,

Posner is often criticized, but your rant about him is delusional.
4.12.2009 12:18pm
~aardvark (mail):
Try to read the nonsense he writes, albert. Then you'll see the real delusional rants.
4.12.2009 2:22pm
albert:
~aardvark: I've read a lot of Posner. I've disagreed with many of his opinions, but I think he's a first-rate intellectual. Sorry, but your assertion that other judges on his court vote his way because his "reputation and temper" is not backed up by any evidence; nor would that explain his influence outside his circuit, for as you know he is the most-cited judge in the country by courts outside his circuit. You're the first I've seen to call him a "laughingstock."
4.12.2009 2:27pm
Mark30339:
I actually have a Wisconsin law license via diploma privilege and a Georgia law license via bar exam. When I asked for admission to Georgia, I was put through the same process as all Georgia law school graduates. When graduates of a Georgia law school seek admission in Wisconsin, they have a process that's different from UW and Marquette law grads. I guess that's being viewed as an improper restraint of trade, and the remedy for the afflicted is to make the UW and Marquette grads sit for the bar with the hope and expectation that more Wisconsin job opportunities surface when a a proportion of locals fail the bar. But why limit the remedy to prospective diploma privilege beneficiaries? If restraint of trade is the issue, why not take away all diploma privilege licenses in practice -- we are the nasty perps restraining the trade.
.
I suggest a vigorous defense of the status quo on the grounds that competition and innovation among law schools is desireable, that each State has the discretion to offer or not offer this privilege, and that decisions by competing States to decline such a privilege is being wrongfully twisted into Wisconsin effectively conspiring to restrain trade. Further, Wisconsin does not block non-residents from applying to their law schools and gives law graduates the diploma privilege regardless of their residency status.
.
It seems to me that the best remedy for afflicted law graduates is a fitting plate of sour grapes, and an admonition that they should have just worked harder to get diploma privilege in their home States (or worked harder to get accepted into Marquette or UW in the first place).
4.13.2009 1:01am
David Schwartz (mail):
Was it just me, or did it seem like the judges asked an awful lot of questions that are equivalent to things like "Can't black people just eat someplace else?" or "Wouldn't it satisfy your claim of discrimination if the restaurant just closed -- nobody wants that."
4.13.2009 4:10am
David Schwartz (mail):
Mark30339: Does that sound a lot like "black people can just live/eat/work elsewhere"?

The point is that the rule is discriminatory. Full stop.
4.13.2009 11:28am
George Smith:
I think it's mainly to keep Illinois lawyers out.
4.13.2009 11:43am
Mark30339:
Re: David at 11:28am. This is starting to sound like Barry Bonds complaining that $10 million a year is so paltry it prevents him from caring for his family and feeding his children. Graduates of law schools outside Wisconsin are far too blessed with opportunity to qualify as a suspect classification entitled to strict judicial scrutiny when a State, like Wisconsin, treats them differently for law license purposes. Anyone who sees this as the equivalent of racial discrimination is too easily manipulated, and maybe shouldn't be trusted with a law license.
4.13.2009 1:31pm
David Schwartz (mail):
Mark30339: You make more of my analogy than I intend.
4.14.2009 8:11am

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