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


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.


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.


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.”


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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