July 9, 2009

The 7th Circuit reinstates the case challenging the Wisconsin diploma privilege.

The case is Wiesmueller v. Kosobucki.
Under SCR 40.03, a diploma from an ABA-accredited law school whose curriculum includes the specific study of Wisconsin law is sufficient evidence of competency to practice in Wisconsin without a bar examination.

A class of recent graduates from ABA-accredited schools outside Wisconsin who seek a law license in Wisconsin argued that the privilege infringes on the Commerce Clause because only graduates of the law schools at Marquette and the University of Wisconsin benefit from it.

The Wisconsin Attorney General, defending the diploma privilege, has argued that the privilege is not discriminatory because of its availability to residents of any state who attend a school where Wisconsin law is taught. And if it does have an effect on interstate commerce, it is outweighed by the state’s interest in competent lawyers who know Wisconsin law, the attorney general asserts.

In its opinion, the court of appeals said that the district court’s dismissal of the action left it in “an evidentiary vacuum.” The plaintiffs had been appealing that order issued.

The court indicated that the plaintiffs should build the evidentiary record before the diploma privilege’s effect on interstate commerce can be assessed.

“[S]uppose – a supposition not only consistent with but actually suggested by the scanty record that the plaintiffs were not allowed to amplify – that Wisconsin law is no greater part of the curriculum of the Marquette and Madison law schools than it is of the law schools of Harvard, Yale, Columbus, Virginia, the University of Texas, Notre Dame, the University of Chicago, the University of Oklahoma, and the University of Northern Illinois (which happens to be within a stone’s throw of Wisconsin, as are the three law schools in Minneapolis),” the court wrote.

“That would suggest that the diploma privilege creates an arbitrary distinction between graduates of the two Wisconsin law schools and graduates of other accredited law schools. And it is a distinction that burdens interstate commerce,” the court concluded.

28 comments:

mccullough said...

So are any Wisconsin-specific law courses required at Madison?

The Drill SGT said...

It would seem that any Minneapolis law school would be free to offer a WI law elective.

The story is not clear that the UW law school's course in WI Law, is required or optional.

traditionalguy said...

Home cooking tastes good to the homees, but equal protection principles are in the Constitution along with rhe Commerce Clause for some reaon. Will the Court let the facts control and apply those laws? The idea that the USA is one nation under law and not 50 States rises its ugly head again.

Daryl said...

It's not one course on WI law, it's EVERY course.

EVERY course includes a bunch of stupid WI law that is useless to anyone who doesn't want to practice law in that miserable state after they graduate.

If the effect of this lawsuit is to advertise to potential law students to stay the hell out of WI, then it will not have been for naught.

Jonathan said...
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Jonathan said...

If Posner accurately summarized the comments of the AAG sent to argue the case, he/she was both uninformed and grossly unprepared for the argument. Shame on both that attorney and his/her supervisor.

I recall that the Diploma Privilege at UW had a curriculum distinct from that needed for graduation. Furthermore, as I recall, the first-year criminal law courses are 95% Wisconsin law. Trust and Estates is also mostly Wisconsin law. Contracts used a textbook written by Wisconsin law professors that highlights distinctions in Wisconsin contract law from the norm. Torts uses a national textbook, but also observes Wisconsin precedents that are distinctive, such as Wisconsin's adherence to the "duty to the world" view from the Palsgraf dissent, and its market share liability ruling in Collins v. Ely Lilly. Property also uses a national textbook, although we were made separately aware that Wisconsin had abolished or modified various common-law rules.

It is unfortunate that the Court felt the need to lecture on something it did not understand, and even more unfortunate that the AAG was unprepared on questions, such as these, that the Court obviously would want answers to. It's now up to the AAG, and at this rate, more likely some qualified amici, to give the courts a proper record.

For the record, I practice only infrequently in Wisconsin. But, I do believe that the diploma privilege arises from a legitimate attempt to provide Wisconsin-specific academic instruction in law school --- at least at UW.

OldGrouchy Doug Wright said...

Reno divorces, Massachusetts marriage, Kansas abortions, all are somewhat the same yet different. So, where does the divide fall, eh?

Are we a republic of fifty states under one federal union or are we one with the federal government over all?

Or, what is the question if not that, eh? BTW: what's fair about anything?

Critical Badger said...

Anyone know how this would affect incoming and current law students in the state of Wisconsin? If say over the next year a court were to strike down the privilege, would current students be grandfathered in? I know many look at the option of no bar exam when considering Wisconsin/Marquette vs similar schools in the Midwest.

MadisonMan said...

My memory isn't great re: this case, but I seem to recall that the Court in Chicago (?) plainly had no grasp on what was taught at the UW. So in that respect, it's good for the Courts to take a second look at this case.

Maybe this time around the person arguing for Diploma Privilege will know a thing or two about the UW Law school.

MadisonMan said...

My memory isn't great re: this case, but I seem to recall that the Court in Chicago (?) plainly had no grasp on what was taught at the UW. So in that respect, it's good for the Courts to take a second look at this case.

Maybe this time around the person arguing for Diploma Privilege will know a thing or two about the UW Law school.

MadisonMan said...

My memory isn't great re: this case, but I seem to recall that the Court in Chicago (?) plainly had no grasp on what was taught at the UW. So in that respect, it's good for the Courts to take a second look at this case.

Maybe this time around the person arguing for Diploma Privilege will know a thing or two about the UW Law school.

Patrick said...

Why, thanks for that Madison Man, at least know we know that you are triply sure.. ;)

Irene said...

@MadisonMan, I think that's right, the court did not grasp what courses are taught at the law school. As Jonathan notes, several courses, and especially Trusts and Estates, rely primarily on Wisconsin law.

traditionalguy said...

Madison Man...You give great excuses, really you do. But the point is the favoritism granted when Wisconsin only needs to ask a question series on Wisconsin Law "special pitfall known only in Wisconsin" questions on the Bar Exam and grade tough. What's the matter? Does defending the ancient privileges given the Homeees go way beyond the needed test on Wisconsin Laws? The proper answer is the Homees need to be thankful that their little scam worked so long, and give it up now that daylight is shining in and cleaning up the bad old days.

AST said...

Anything that makes it harder to become a practicing lawyer is fine with me. There are too many and way too many who are incompetent.

John Thacker said...

But the point is the favoritism granted when Wisconsin only needs to ask a question series on Wisconsin Law "special pitfall known only in Wisconsin" questions on the Bar Exam and grade tough.

So? They could do that, sure. But why can't Wisconsin have more than one way to become a lawyer-- either pass the bar, or else take a qualified education that includes special instruction on Wisconsin Law? Where is it written that there shall be only one way to be licensed as a lawyer?

traditionalguy said...

John Thacker... You are correct that a State can admit lawyers any way they want to do so, EXCEPT the states cannot disfavor the graduates of other Educational Businesses competing in commerce for educational dollars. Wisconsin can make all Wisconsin citizens eligible for the favoritism of no Testing whether they purchased their educational services from Emory or Harvard or Northern Illinois or from an in state business. Otherwise you are favoring the local business over the business in the other State in the Confederation...Wait we changed that rule in 1787 in the Constitution Thingee. Wisconsin and its Homecooking rules for Wisconsin Schools came in under the radar for 200 years, but now her systematic favoritism has caught up with her.

gaywrites said...

Wisconsin teaches courses that incorporate Wisconsin law but that's common sense when you deal with subject areas where the laws differ (sometimes greatly) between states. I'm sure Indiana University teaches criminal law using the Indiana criminal statutes (and probably uses the Indiana Rules of Evidence to supplement the Federal rules). And, for courses like Trust and Estates, where Wisconsin is a marital property state, and Indiana isn't, Wisconsin teaches marital property and Maurer School of Law probably doesn't, or at least not as in-depth.

I think that at any school that is on the border of being a regional law school and a national law school, there's going to be a pretty even mix of local focus and broader concepts, because the reality is many students will stay in Wisconsin but some will also leave. I couldn't tell you if a school like Michigan that is a national law school but also a state school would have such an even mix or not.

Wisconsin does have specific requirements to meet for diploma privilege, but they aren't courses that wouldn't be a good course to take in general (trusts and estates, for example). And it's not like there's a TnE Wisconsin section and a section that doesn't focus on Wisconsin.

By going to UW or Marquette you learn more Wisconsin law than you do at any other law school in the country. But the same is true at (nearly) every other law school in the country regarding the respective state they're in.

I'm not overly concerned about Diploma Privilege because I'm not staying in Wisconsin to practice law, but it's a big deal to a lot of people. And I'm not convinced a bar exam is a great indicator of whether or not you'll be a good lawyer anyway. If it's a good way to keep lawyers that graduate from UW in the state (something tax payers probably appreciate), I'm surprised more states don't do it.

Joe said...

EXCEPT the states cannot disfavor the graduates of other Educational Businesses competing in commerce for educational dollars.

That makes no sense except in the wacky world of the modern courts which interprets the commerce clause so expansively as to render it meaningless. Perhaps returning the commerce clause to regulate actual commerce that crosses state lines would return some normalcy to this country and the concepts of federalism.

Oops, sorry, was having a weird dream there.

traditionalguy said...

Joe...The commerce clause was the solution to the local favoritism sneaking in dressed up as regulations for a good purpose. Suppose cheese from Vermont was from certified cows under a Vermont Regulatory Scheme. Then it would appear to be a good thing to tripple inspect Wisconsin Cheeses for suspected defects (at high costs)before allowing them to be sold in Vermont. Such suterfuges have become the favorite tool of local Protectionists in world trade to get around new treaties outlawing protectionism. So now everyone is very alert to the trick. The first treaty outlawing protectionism among the Soverign States in America was contained in the Constitutions commerce clause, when exercised. How small a market we create when first we start to discriminate...and then the other states retaliate. It is always better for all States to accept a fair system that respects the other States interests too, no matter how good the local motive to draw the line in your own favor sounds to you.

Kirk Parker said...

Joe,

Was there a naked Indian in the dream?

MadisonMan said...

I wonder why that posted 3 times.

Joe said...
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Joe said...

The commerce clause was the solution to the local favoritism sneaking in dressed up as regulations for a good purpose.

I disagree. I believe the ultimate motivations for the commerce clause were preventing states from levying duties on actual goods and services crossing state lines and dealing with the problem of moving goods between and through the states, especially through navigable waters.

If we expand this power from dealing with physical transactions to things like professional licensing, then states can have no power to regulate business within the state whatsoever; any professional licensing becomes dubious, at best (don't get me wrong, I think that most professional licensing is bogus, but I also think that's an issue of the various states, not the federal government.)

Joe said...

Was there a naked Indian in the dream?

Alas, no. Charlize Theron didn't even show up, naked or not. Stupid dreams.

Smilin' Jack said...

...only graduates of the law schools at Marquette and the University of Wisconsin benefit from it.

I'm not so sure about that. If I were hiring a lawyer in Wisconsin, I'd want one capable of passing the bar. So I'd tend not to hire graduates of Marquette and the UW.

matthew said...

There's enough of an evidence vacuum that Posner forgot how to count. There are 4 law schools in the Twin Cities

-U of M
-William Mitchell
-Hamline
-St. Thomas

Bruce Hayden said...

I think that the easy way around this would be to provide a privilege for any graduate of a Wisconsin accredited law school. But, then, my problem is probably more with the ABA part of the law, than the WI specific portion. Why should accreditation by a group that only really represents legal academia and Big Law have any bearing whatsoever in state accreditation? I say that as someone who could have his ABA dues reimbursed, if I were to join, but refuse.

The alternative might be, as someone above suggested, to have a WI only mini-bar exam for those graduating from other accredited schools.

What the 7th Circuit, et al., seem to be ignoring is that almost all state bars have notable local state content. For example, if a water law question were ever asked on the multistate exam (it won't be), you would be constrained to use majority riparian laws. But that answer would fail you in the states I have taken the bar (they are both prior appropriation states). But even then, the law was different between the two states.

The "elite" law schools are proud that they teach "national" law, and not the law of any specific jurisdiction. But that makes their graduates, absent some additional training (e.g. bar prep classes) incompetent to practice in any specific jurisdiction. The plaintiffs here think that is just fine, and apparently see no real reason that they should know the law of the state they wish to practice in, but rather, that "national" law is sufficient.