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.