July 09, 2009
The Wisconsin Diploma Privilege Suffers Seventh Circuit Setback
Posted by Christine Hurt

Both my co-blogger Gordon and I have had the privilege of teaching separately at the two law schools in Wisconsin (Gordon at Wisconsin and me at Marquette), although neither of us benefitted from the diploma privilege bestowed on the students who graduate from those schools.  As most people know by now, those graduates do not have to take the Wisconsin bar exam and many become fully licensed attorneys the Monday morning after graduation.  And this has peeved some out-of-state plaintiffs, who say that the state of Wisconsin is violating the U.S. Constitution.  Their federal lawsuit was dismissed by the trial court, but on appeal Judge Richard Posner has reversed and remanded (and it doesn't look good for the diploma privilege).  Gordon had blogged on this ongoing lawsuit after oral arguments.

Posner did cite a blog post in his opinion, but not a Glom post (sigh).  He did cite a thoughtful post by my former Marquette colleague Eric Goldman, who was also a non-Cheesehead in the Land of Cheese for awhile.

Posner seems to want more facts on exactly how Wisconsin-y the curricula at Wisconsin and Marquette are.  Gordon has argued that his curriculum was Wisconsin-y, but I didn't see a lot of this at Marquette.   No one ever gave me any parameters as to what to teach in my courses beyond a slim course description, which I don't remember mentioning Wisconsin.  Of course, I may be jaded because, like Eric, I am no fan of the privilege.  I think it skews the incentives of graduates to stay in the Milwaukee area, limiting their own opportunities and saturating the market.  It may also incentivize applicants with low success indicators to borrow large amounts of money to go to law school because, if accepted, they are almost guaranteed a law license at the end of three years.

Posner was quick to point out to the plaintiffs that the case is surely not going to end with the state of Wisconsin granting the diploma privilege to all U.S. law school graduates.  The plaintiffs will still have to take the bar.  But, Posner acknowledges that the benefit to them (thus granting them standing) will be to compete in a legal market without barriers unique to out-of-state law school graduates.

The last point that I will make is that Posner almost seems to buy the argument that a state that is a market participant may favor its own, such as a state school benefitting in-state applicants with lower tuition.  So, the diploma privilege may be a form of in-state discount.  But, Posner point out, this argument is not available for Marquette.  I would hate to see an outcome whereby Wisconsin students had the diploma privilege but Marquette did not.  I don't think Marquette wins a lot of the head-to-head competition for students, but it does compete head-to-head for jobs in Wisconsin for its graduates.  I think that result would be the worst -- it would just add Marquette graduates to the pool of plaintiffs harmed by the diploma privilege, and the harm would be felt on a daily basis (or at least every graduation season).

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ยป Wisconsin Diploma Privilege Ruling Recap--Wiesmueller v. Kosobucki from Goldman's Observations ...
"Today, the Seventh Circuit issued an opinion in Wiesmueller v. Kosobucki, written by Judge Posner. T ..." [more] (Tracked on July 9, 2009 @ 23:14)
Comments (4)

1. Posted by Eric Goldman on July 9, 2009 @ 11:59 | Permalink

The Posner opinion didn't address the fact that many states used to have the diploma privilege, and Wisconsin is just the last one standing. I wonder if the analysis would be different if multiple states still had their diploma privilege? Eric.


2. Posted by Jake on July 9, 2009 @ 19:36 | Permalink

Posner is probably correct that the district court erred in granting Wisconsin's motion to dismiss the case.

But Posner had no need to write a 15-page dissertation to reach that conclusion. Does Posner really think a remand to the trial court is needed, or is he trying to stack the deck on remand?

Especially disingenuous is the last sentence of the opinion:

"[W]e are remanding because the plaintiffs were
denied an opportunity to try to prove their case."

What Posner is truly saying (and he knows it) is that the plaintiffs should have an opportunity to conduct wasteful and abusive "discovery" so as to make a "case" that can withstand Wisconsin's inevitable summary judgment motion -- an act of procedural theatre that is unnecessary, save for Posner's lack of courage to simply decide the putative Commerce Clause issue now.

Bah.


3. Posted by personal injury lawyers on January 3, 2012 @ 21:09 | Permalink

I don't really know the benefits of having a diploma privilege. One thing that I agree on is that, diploma privilege is a form of in-state discount.


4. Posted by Coach Factory on April 24, 2012 @ 1:33 | Permalink

I didn't know Curley Howard played for BYU!

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