March 30, 2010
Settlement in Wisconsin Diploma Privilege Case -- The Convoluted Backstory
Posted by Christine Hurt

While on Spring Break, I missed the$7500 settlement of the case challenging Wisconsin's practice of licensing U. of Wisconsin and Marquette University law school graduates without their having to take that pesky bar.  (Law Blog blurb here.)  The case involved graduates of out-of-state law schools who claimed discrimination under the dormant Commerce Clause in having to take the bar when the in-staters didn't have to sit for the bar.

Here is Gordon's post on why the diploma privilege isn't entirely irrational.  Here is my post after the Seventh Circuit reversed the district court's dismissal of the case and sent it back for trial.  As regular readers know, Gordon and I taught at Wisconsin and Marquette, respectively.

So, why did the case settle?  Vaguely reminiscent of many cases in my Con Law book so many years ago, the case was destined to fail for mundane procedural reasons.  First, the case kept losing its "ripeness."  First, Christopher Wiesmueller, a graduate of Oklahoma City University School of Law, was representing himself and a class of others similarly situated pro se.  However, once he passed the Wisconsin bar, his case was moot.  So, he substituted as the name plaintiffs Heather Devan and his wife, Corinne Wiesmueller.  However, during the course of case, Devan passed the Wisconsin bar, leaving only Ms. Wiesmueller.  But then it gets even more complicated.

The case was first certified as a class for injunctive relief in 2008 by District Judge Barbara Crabb.  However, after the Seventh Circuit remanded, Weismueller moved for summary judgment for plaintiffs.  In denying that fairly aggressive motion on October 30, 2009, Judge Crabb orders a hearing to reexamine the certification of the class, noting that Rule 23 requires a judge to consider whether class counsel has the experience and resources to effectively serve the interests of the class.  I will spare you the gory details of Judge Crabb's analysis of Wiesmueller's experience and resources, but suffice it to say that she believed he was "over his head."  (Wiesmueller v. Kosobucki, 667 F.Supp.2d 1001 (W.D. Wis. Oct. 30, 2009 -- maybe good scare material for legal writing/appellate procedure professors).  She encouraged him, in preparation for the hearing, to associate himself with others with more federal practice experiences and resources to undertake what she felt would be an involved discovery process.

Perhaps proving Judge Crabb right, Wiesmueller then moved for the judge to recuse herself on the basis of herself being a 1962 Wisconsin graduate, having received an award from an alumni association, for having interns from the two Wisconsin school, for berating him unfairly, and for irrationally requesting Wiesmueller "sua sponte" to remove former Supreme Court Justice Louis Butler as a defendant in that capacity because he was no longer a member of that court.  Not unsurprisingly, Judge Crabb denied that motion on December 2, 2009 (Westlaw citation:  2009 WL 4667576), held a hearing as to whether Wiesmueller had the experience to lead the class on December 3, 2009, and ruled he did not on December 4 and so de-certified the class (Westlaw citation:  2009 WL 4722197).  Judge Crabb reminded Wiesmueller that he could represent individual plaintiffs in the case, but not the class.  The remaining individual plaintiff was his wife, Ms. Wiesmueller, who is scheduled to take the bar in July.

So, the case ends with a whimper (although a fairly interesting and complex one), not a bang.  Wiesmueller says he was tired of the case and his only plaintiff was about to lose standing.

So how do rules like the Diploma Privilege go away?  I can't see a lot of Wisconsin legislators wanting to be the ones to repeal that rule, and it didn't look like a lot of Wisconsin attorneys were lining up to be co-counsel with Wiesmueller, either.  Standing will always be an issue as few law school graduates are going to move to Wisconsin, declare an interest in taking the bar and then wait multiple years for the court case to end without getting on with their lives.

And I do think it would be better for both law schools and the state to do away with the rule.  There are few positives to the rule that I can see.  If the diploma privilege attracts students to those schools, then those students by definition are looking for a way to practice law without any unnecessary work.  Not the driven Type A students that make a name for themselves and the school.  It may also encourage graduates to stay in-state, but again those on the margins that stay because of the privilege may be the least ambitious.  Of course, many, many of the students who go to those law schools do not do so because of the privilege, but because they like the schools.  And, a lot of graduates stay in Wisconsin not because of the privilege but because they want to live in Wisconsin.  So, the positive aspects of the privilege seem small.  And I do think there are negatives.  Law schools gain national reputations by having their graduates fly away to other places and spread the good name of their institution far and wide.  To the extent that the privilege disincentivizes graduates to do that, then it is a negative thing.  My impression was that Milwaukee and the other smaller legal markets in Wisconsin could not absorb all the good attorneys coming out of the two law schools.

But, there won't be any changes for awhile!

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