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Wisconsin Diploma Privilege in Danger:

Yesterday the U.S. Court of Appeals for the Seventh Circuit overturned a federal district court's dismissal of a suit challenging the constitutionality of Wisconsin's diploma privilege. Under Wisconsin law, graduates of the University of Wisconsin and Marquette University law schools are automatically admitted to the Wisconsin bar. All others must either fulfill an out-of-state practice requirement or take the bar exam to practice law within the state. The lawsuit challenges this arrangement under the dormant commerce clause on the grounds that it discriminates against graduates of out-of-state law schools. How Appealing rounds up some early news coverage here.

This is an interesting lawsuit on many levels. One question, assuming this lawsuit is ultimately successful, is what the proper remedy should be if the diploma privilege is deemed unconstitutional. The plaintiffs would like the court to invalidate the in-state requirement, effectively requiring the admission of all law school graduates. I cannot imagine a court imposing such an order, and the Seventh Circuit opinion is also dubious of this claim. So were the plaintiffs ultimately successful, it would likely mean that either a) all lawyers seeking admission to the Wisconsin bar would have to take the bar exam or meet some practice requirement, or b) the state would impose a new, non-discriminatory rule for bar admission. Imagine if the state revised its rules so that bar admission was only automatic for those who successfully complete a "Wisconsin practice" class in the course of their studies. Wisconsin and Marquette would almost certainly offer such a class, but I doubt many out-of-state schools would. In either case, the barrier to the plaintiffs' ability to practice law in Wisconsin would no longer be discriminatory, but it might not be any lower. Could they still claim their injury would be redressed? It's an interesting question, and this is an interesting case.

Related Posts (on one page):

  1. Wisconsin Diploma Privilege in Danger:
  2. Is Wisconsin Diploma Privilege in Danger?
Jerry Mimsy (www):
If the only thing schools needed to do to make admission to the Wisconsin bar automatic is offer one class, why wouldn't a decent number of schools do this? Seems like a pretty good selling point, as long as all states don't follow Wisconsin's lead.

Also, there would likely be "Wisconsin practice" classes sprouting up on the web.
7.10.2009 4:28pm
Wayne Jarvis:
I dunno. If I were a law student, I might demand that my school provide a Wisconsin Law course to guarantee that I would be admitted to a state bar, without taking a bar exam, immediately upon graduation. Why not?
7.10.2009 4:30pm
MCM (mail):
I dunno. If I were a law student, I might demand that my school provide a Wisconsin Law course to guarantee that I would be admitted to a state bar, without taking a bar exam, immediately upon graduation. Why not?


Depends on the hours/credit requirement. 2 semester-hours? Maybe. 4? Probably not.
7.10.2009 4:34pm
George Weiss (mail) (www):
a citizen of any state may go to a wisconsin law schol (esp marqutte which is private).

so how is this discriminatory against other states again?
7.10.2009 4:40pm
Jay:
George Weiss--If that were the test, nothing would ever violate the dormant Commerce Clause. "A citizen of any state may move to our state and live here for three years, thus meeting our residency requirements," would not suffice in other contexts.
7.10.2009 4:56pm
jerome:
All Posner said is that the rule must be minimally reasonable. Since UW and Marquette have plenty of Wisconsin content in their curriculum, this should not be difficult to establish.

See this blog post.
7.10.2009 5:31pm
Phatty:
The only thing accomplished by this lawsuit is punishment of graduates of Wisconsin law schools.

So, are state reciprocity rules at risk now, too? Why does lawyer from State X get a free pass to practice law in State A, but a lawyer from State Y does not. Does the lawyer from State Y have any less knowledge or experience or ability as the lawyer from State X, or is State A simply trying to punish the lawyer from State Y because State Y does not give lawyers from State A a free pass.
7.10.2009 5:37pm
Christopher Wiesmueller (mail):
If out-of-state law schools were permitted to offer a qualifiying Wisconsin course it would remedy the facial discrimination.

Chicago law schools, Twin City law schools, and NIU are all within an hour drive of the Wisconsin border. I think it only 4 hours from Milwaukee to Valpo (with good Chicago traffic). Many of those law schools might jump on board if it was just a matter of offering a few "Wisconsin" credits.

The interesting quesion would be, what if the BBE went on to be more rigourous in inspecting those out-of-state courses than they are with the MU and UW classes. They don't do anything to inspect and certify MU and UW courses, they only rely on the dean of the law school to make a certification that the graduates have learned legal principles likely to come before the courts of the United States and this state. Couldn't almost every dean in the country say that about their curriculum?
7.10.2009 5:39pm
ReaderY:
Dare I point out that institution of marriage discriminates in favor of local monopoly providers for the servicing of sexual needs and thereby discriminates against out-of-state sexual service providers?

Anything, anything at allm can be regarded as a commercial product if a judge so wishes. A judge's decision to regard law as a commercial product while not regarding sex, or anything else for that matter, as commercial products subject to the dormant commerce clause, is an essentially a political decision.
7.10.2009 6:38pm
Mark N. (www):
I can see the dormant-commerce-clause issue when looked at as an issue of in- versus out-of-state law schools. Would it be a legitimate fusing of two legitimate state programs for efficiency purposes, though, if the diploma privilege were limited to only Wisconsin state-operated law schools?

Surely nobody contests that the state has a right to operate law schools. And, separately, it's uncontested that the state has a right to administer a licensing process for lawyers to practice in the state. If so, why can't they offer a fused licensing-plus-legal-education-in-a-big-bundle option, for those who would like to enroll in both of these state programs?

Put differently, the state will do some level of vetting for all its lawyers. The most rigorous vetting is putting students through a three-year course of legal instruction, the successful completion of which entitles them to practice law in Wisconsin. For students who feel taking such a course from the state is unnecessary, due to having already received legal education elsewhere, Wisconsin alternately provides a much more lightweight licensing process.

I agree it becomes more problematic when Wisconsin extends the privilege to private Wisconsin schools but not private out-of-state schools, though.
7.10.2009 6:57pm
Tony Tutins (mail):
Unsurprisingly, this subject came up on the Althouse blog. The commenters indicated that Wisconsin practice was intertwined throughout the basic curriculum in Madison; particularly heavy in Crim and Trust and Estates, but a good dose in Real Property, Torts, etc.

So an out-of-state law school would have to reproduce some subset of the Wisconsin curriculum, not just add one course.
7.10.2009 7:02pm
Order of the Coif:
Hamline University School of Law in St. Paul, Minnesota (only 22 miles west of the Wisconsin border) would certainly offer a "Wisconsin Practice" class as an elective. So would William Mitchell and St. Thomas. The UofM would likely defer.
7.10.2009 7:28pm
neurodoc:
<blockquote>...the state would impose a new, non-discriminatory rule for bar admission. Imagine if the state revised its rules so that bar admission was only automatic for those who successfully complete a "Wisconsin practice" class in the course of their studies. Wisconsin and Marquette would almost certainly offer such a class, but I doubt many out-of-state schools would. In either case, the barrier to the plaintiffs' ability to practice law in Wisconsin would no longer be discriminatory, but it might not be any lower.</blockquote>I am confident that BARBRI would step up with a cram "Wisconsin practice" class for those who didn't take such a course while in law school, that is if they don't do it for those sitting those unfortunate few who have to sit Wisconsin bar because they are not automatic admits as graduates of a state school.

I can never get over these bald measures to advantage the home team over interlopers. My late father encountered a similar "protectionist" measure when he went for medical licensure in Florida 50 years, and I faced a different variation about 25 years ago when Florida tried to make it more expensive for physicians not residing there to maintain state licenses. Predictable outcome - someone sued in federal court and struck down on the same basis as this one. Put those together with the case of VT attorney who wanted to be admitted to NH bar (or was it the other way around) and Supreme Court's disposal of that one, and no doubt a good many others. But they keep trying, don't they.
7.11.2009 4:10pm
Brian G (mail) (www):
This is so childish: "why do I have to take the bar exam and they don't? Wahhhhhhh!"

No wonders everyone hates us lawyers.
7.11.2009 9:14pm
George Weiss (mail) (www):
jay-

its not quite that extreme here.

i can see the remand...im just saying they fail to persuade on the merits.
7.12.2009 12:07am

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