April 11, 2009
Wisconsin's Diploma Privilege
Posted by Gordon Smith

Background:

Under diploma privilege, graduates of the University of Wisconsin Law School and Marquette University Law School are admitted to the practice of law [if] their school certifies their legal competence and the Board of Bar Examiners certifies their character and fitness for the practice of law.


Challenge:

Christopher L. Wiesmueller, a graduate of Oklahoma City University Law School, and an attorney with Kuchler & Cotton Law Offices in Waukesha, is challenging the privilege as a violation of the dormant commerce clause, by treating the in-state law schools and their graduates more favorably than those from out-of-state.


Defense:

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.”


Reaction:

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.”

The third judge on the panel, Judge Kenneth F. Ripple, also said he didn’t believe Wisconsin law schools teach law any differently, asking “How is the curriculum different from any other national school?”


As a former Contracts professor at Wisconsin, I can attest that every section of Contracts uses the so-called "Wisconsin Materials," which are heavy on Wisconsin law. Indeed, when I taught that casebook at BYU last year, the students asked why we were learning so much Wisconsin law. Of course, the value of the casebook for people outside of Wisconsin isn't to teach Wisconsin law, but to use Wisconsin as an exemplar of how a single state might deal with certain doctrines. Nevertheless, for people inside Wisconsin, the peek into Wisconsin courts is useful. (Last year I supplemented the materials with lectures on Utah contract cases. The pool of cases is much shallower here, and the courts are much more predictable.)

While the Wisconsin School of Contracts makes the study of Contracts somewhat distinctive, one also perceives a strong Wisconsin focus in the work of the Remington Center and other clinical opportunities at the Law School. My sense is that the faculty at Wisconsin have an unusually strong attachment to the home state's law, even if that seems foreign to two judges who have spent their academic careers at the University of Chicago Law School.

Beyond the classroom, Wisconsin has a long tradition -- expressed in the University's Wisconsin Idea -- of connecting the study of law to the State of Wisconsin. The heyday for this work may have been the 1960s, which saw the publication of Stewart Macaulay's Non-Contractual Relations in Business: A Preliminary Study, 28 American Sociological Rev. 1 (1963), Willard Hurst's Law and Economic Growth: A Legal History of the Lumber Industry in Wisconsin, 1836-1915 (1964), and Lawrence Friedman's Contract Law in America: Social and Economic Case Study (1965), among other important works. Scholarly work centered on Wisconsin seems to have declined in recent years, though I was laying the groundwork for an empirical study of the local entrepreneurial culture before I moved, and I remember feeling that those older works legitimated to some extent the decision to focus on Wisconsin companies. My guess is that most of the scholarly work focused on Wisconsin law today comes from the Remington Center, but I am no expert on the current state of things.

This blog post is not offered as a complete justification of the State's defense of the diploma privilege, but rather as some mild pushback on the assumption that the University of Wisconsin Law School is no different from law schools in Indiana, Illinois, North Dakota, or Oklahoma. While Wisconsin prides itself on being a national law school, the connection to Wisconsin was still much in evidence while I was there.

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Comments (10)

1. Posted by Doug H. on April 11, 2009 @ 15:13 | Permalink

Thanks for posting on this Gordon. I'm a 2L at Marquette, and I was shocked by the reactions of Judge Posner and Judge Wood.

Like UW, Marquette classes also spend a lot of time covering Wisconsin cases and statutes. This is true even in classes that focus more on federal law. For example, in securities regulation we spent a whole class just on the 2009 changes to the Wisconsin Uniform Securities Act.

I would have understood if Judge Posner and Judge Wood had merely questioned or doubted how much Wisconsin law is taught. What I found troubling was the certainty with which they spoke on an issue that, with all due respect, they clearly know nothing about.


2. Posted by NonVoxPop on April 11, 2009 @ 17:30 | Permalink

It's Law in Action. We shouldn't expect Posner to understand...


3. Posted by bill on April 11, 2009 @ 18:53 | Permalink

Judges Wood and Posner may be wrong.

But if the "Wisconsin Materials" are the main justification for in-state special treatment, then the fact that your BYU students do not get the diploma privilege that your erstwhile Wisconsin students did would seem a violation of the Dormant Commerce Clause.


4. Posted by Jake on April 12, 2009 @ 18:37 | Permalink

Whether the curricula at Wisconsin law schools focus significantly on law that is unique to Wisconsin seems a doubtful policy justification for the diploma privilege. Wisconsin also admits to its bar anyone who is admitted in another state and has practiced for at least three years, without no requirement that such experience include any specialization in Wisconsin law. Wisconsin may have good reasons for the diploma privilege, but preserving the purity of Wisconsin law is not one of them.

It also seems that any non-Wisconsinite who is sufficiently aggrieved by the Wisconsin diploma privilege to file a lawsuit asserting a dormant Commerce Clause claim could very likely meet the three-years-practice-elsewhere rule, and get barred in Wisconsin, before the lawsuit fully makes its way through the appellate process. Mootness looms.

As a practical matter, then, the real issue may not be so much the diploma privilege, but rather, whether it is a constitutionally intolerable burden to force out-of-state lawyers who want to practice in Wisconsin, but avoid the bar exam, to suffer three years of practicing in a less desirable state before Wisconsin will admit them to practice.


5. Posted by Mary Ann Brow on April 13, 2009 @ 15:01 | Permalink

Has anyone pointed out that the WI diploma privilege is not granted merely for graduating from a WI accredited law school? The privilege is for having completed a very specific list of courses set out by the WI Supreme Court. The list of courses substantially overlaps with the degree requirements, but is not the same. (It's actually quite possible to complete a JD in WI and fail to qualify for the privilege, but I would hate to have to explain that to prospective WI employer).
Many of the required courses are not WI-focused (e.g., Fed Rules of Civ. Proc., Evidence, to name just two). Nonetheless, it makes sense that the SC of the state should be able to set forth what WI attorneys ought to know, and to allow attorneys to demonstrate the required knowledge by completing an accredited course of study. What I don't understand is why the other states that had diploma privileges in the past have suspended them. (According to Wikipedia, as many as 32; I have not verified this). If the law schools must be accredited, why is a mandated course of study NOT sufficient in most states?
Certainly, it seems that a graduate from another state should be able to demonstrate that they meet the knowledge requirements for practice in WI. One option might be to allow attorneys seeking bar admission to submit course transcripts from an accredited law school from another state, along with a brief showing the equivalence of the coursework on a course –by-course basis. Alternatively, to save the time and effort of gathering those documents, there could be some kind of general exam . . .


6. Posted by Cliff on April 15, 2009 @ 8:51 | Permalink

I wonder what the content of the Wisconsin Bar Exam is like? If it also focuses heavily on Wisconsin law, the distinction may carry some weight in my mind.

However, if Wisconsin waives it's own students into practice based on their unique training in Wisconsin law, yet tests out of state students using general bar exam material that focuses on general legal principles, the focus on Wisconsin law argument would seem to lose all credibility.

As an aside - I don't see how striking down the diploma privilege would affect the three year waive in privilege, as one is supposedly based on a "unique" training in Wisconsin law, while the other appears to be based on demonstrated practical experience.


7. Posted by anon on April 22, 2009 @ 9:37 | Permalink

Frankly, I don't think it is a good thing that a school focuses on its own state law. Even as legal posturing, the argument is troubling. And if law in action is what is being taught by the use of Wisconsin law, then how about the problem of functioning as an attorney outside the state of Wisconsin? The diploma privilege is a hallmark of provincialism, and that kind of insularity is what the DCC was meant to correct. More importantly, the diploma privilege keeps a good school from being great.


8. Posted by Ariella on July 10, 2009 @ 11:48 | Permalink

Cliff:

To answer your question, the Wisconsin bar exam focuses on Wisconsin-specific law in the areas of torts, corporations/business orgs, trusts and estates, family law, tax and professional responsibility. In all other areas, the bar tests on the "standard" Bar/Bri-type stuff.

I took the bar in 2005 (graduate of a law school outside Wisconsin) and practice here now. I also teach at the law school as an adjunct. While the courses do focus on some Wisconsin-specific law, I agree with Judges Posner and Wood that the majority of the curricula at the UW is a "generalized" course of study - just like most other law schools. And that seems natural for a nationally regarded law school. Why would an Am100 law firm based in NYC (for example) hire a 2L who had learned nothing but Wisconsin law? It wouldn't make sense for the University to focus solely, or even mostly, on Wisconsin-specific law.


9. Posted by Curtis Linder on February 13, 2014 @ 20:36 | Permalink

I took the LSAT twice and did not go to law school. So what do I know? But in real life I do hire and place dozens of lawyer each year. I was told today there is a dearth of lawyers in southern Illinois. SIU has a law school. How about DP for SIU grads who promise to live and practice law south of Decatur?


10. Posted by Curtis Linder on February 13, 2014 @ 20:37 | Permalink

...dozens of lawyers - plural...

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