Defending the privilege in her brief to the court, Assistant Attorney General Jennifer Sloan Lattis asserted that the privilege is justifiable because it is an “undisputed fact that only Wisconsin law schools systematically instruct in Wisconsin law.” Brief of Defendants-Appellees, at 35.
However, Judge Richard Posner immediately pounced on the assertion as being unsupported by the record....
Stating that he doubted there is any Wisconsin content taught in Wisconsin law schools, Posner observed, “They use standard casebooks, which are national.”
Later, he called the contention that there is such content “a complete fiction,” and bluntly said, “I don’t believe you. I don’t believe the courses are any different from those in Indiana or Illinois.”
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.”
Posner even questioned whether the privilege could be upheld, assuming it could survive a commerce clause challenge, suggesting that it could be struck down on equal protection grounds as “completely arbitrary.”
Wood and Posner also both challenged the state’s defense that the burdens of taking the bar exam are too “incidental” to violate the commerce clause.
April 10, 2009