A conference produced by our friends in Madison...

Who’s in the House?

The Changing Role and Nature of In-House and General Counsel

Wisconsin Law Review Symposium

November 18-19, 2011

Wisconsin Institutes for Discovery

Program Chair: Jonathan C. Lipson, Foley & Lardner Professor of Law

This symposium will bring together leading scholars and attorneys to discuss the under-explored, but growing, role of in-house and corporate general counsel in the rapidly changing market for legal services. Keynote Speakers include Cynthia M. Fornelli (Center for Audit Quality Control), Gail A. Lione (Retired Executive VP & GC of Harley-Davidson, Inc.) and David Wilkins (Harvard Law School). Distinguished panelists and commenters include Daniel C. K. Chow (Ohio State University Moritz College of Law), Kathleen Cully (New York), Deborah A. DeMott (Duke University Law School), Michael Falk (Wisconsin Alumni Research Foundation), Lawrence A. Hamermesh (Widener University School of Law), Christoph Henkel (Mississippi College School of Law), R. Thomas Howell, Jr. (American Bar Association), Mike Koehler (Butler University), John J. Huber (FTI Consulting), Donald C. Langevoort (Georgetown University Law Center), Stephanie A. Lyons (Northwestern Mutual Life Insurance Co.), Matthew Neco (Docstoc, Inc.), Thomas P. Newman (AIG, Inc.), Jerome D. Okarma (Johnson Controls), Larry E. Ribstein (University of Illinois College of Law), William H. Simon (Columbia Law School), Steven L. Schwarcz (Duke University Law School), Andrew Brady Spalding (Chicago-Kent College of Law), Bill Stone (Outside GC), Eli Wald (University of Denver Sturm College of Law), Jolene Yee (E. and J. Gallo Winery), Joseph Yockey (University of Iowa College of Law), and others to be named. David S. Ruder (Northwestern University Law School) will participate as a Distinguished Symposium Fellow. This event has multiple cosponsors–please see the symposium website for registration & program information.

Wisconsin CLE Credit Approved: 12 Credits (including 5 EPR) – Illinois MCLE approval pending. Certificates will be provided for attorneys seeking CLE approval elsewhere.

Register online by 11/1/11: http://www.law.wisc.edu/ils/2011wlr/homepage.html

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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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Serious Eats assembles a list with the help of "siblings, old classmates, readers, and other FOSE (friends of Serious Eats)."

The choice for Madison -- mac and cheese slice from Ian's Pizza -- is respectable. Quirky, local, and includes the obvious main ingredient for a Wisconsin treat (cheese).

The pick for Marquette is burgers and frozen custard from Kopp's, which I blogged about here and Christine blogged about here. Two posts for a custard shop, giving another nod to dairy. Not bad.

But the choice for BYU is "sweet pork barbacoa from Cafe Rio." Seriously? I have had it, and it's fine, but it's not even close to the best choice for Provo. That honor should have gone to J Dawgs.

How did they do on your town?

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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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So I was going through my usual Saturday ritual of grocery shopping with my oldest son ... this is one of my favorite activities of the week because we usually visit two or three stores and have a nice long talk about anything and everything. Anyway, we were checking out at Harmon's on 800 North in Orem, and it happened that the store was having a "birthday celebration" and that they were giving out prizes! When they announced that the customers at Checkout #8 were the winners, well, I could hardly contain myself because we were standing at Checkout #8! But I became convinced that something truly cosmic was happening when they presented us with our prize: a package of brats and a block of cheddar cheese! We weren't even wearing our Wisconsin gear!

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I arrived in Madison today for the Wisconsin Contracts Conference, which started this afternoon and continues tomorrow. As my flight flew over the isthmus, I looked down on the city and spotted the familiar landmarks. Despite the cold and the snow, this has been a wonderful homecoming, catching up with my former colleagues.

The conference launched with a presentation by Beth Mertz on her book, The Language of Law School, which is based on a study of eight first-year Contracts courses. Beth is a linguist, and she examines the ways in which people are translated into legal roles and their actions are translated into legal categories in the law school classroom. Beth describes the effect of this translation as follows:

The legal language taught in the United States ... has a double edge. On the one hand, the approach to legal reading found in law school classrooms offers students a potentially liberating opportunity to step into an impersonal, abstract, and objective approach to human conflict. On the other hand, erasing (or marginalizing) many of the concrete social and contextual features of these conflicts can direct attention away from grounded moral understandings, which some critics believe are crucial to achieving justice. Moreover, this step out of social context and emotion provides the law with a cloak of apparent neutrality, which can conceal the ways that law participates in and supports unjust aspects of capitalist societies. This approach also gives the appearance of dealing with concrete and specific aspects of each conflict, thereby hiding the ways that legal approaches exclude  from systematic consideration the very details and contexts that many would deem important for making just moral assessments.

The Wisconsin contracts materials are designed to provide some of that additional context, which is why the book is noticeably heavy on facts. As John Kidwell noted in his opening remarks to the conference, "facts matter." But which facts -- out of all those available -- are worthy of attention?

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I used to make fun of places like Tennessee, Delaware, and Oregon for their inability to cope with winter weather. This would never happen in Wisconsin. So much for that myth.

During last week's big storm, I was getting email messages about the University of Wisconsin closing, and I was stunned. They never close the University!

But I had no idea that some people were stuck in traffic for more than 12 hours:

The State Patrol said it became aware there was a serious problem around 4 p.m. on Wednesday. The fact that there were no major crashes delayed the response, Collins said.

The National Guard deployed a helicopter just before 11 p.m. to survey the extent of the traffic jam.

Sixty-eight National Guard soldiers, with help from state and county law enforcement and emergency management officials, distributed 7,000 bottles of water and 420 meals to stranded motorists throughout the night.

As traffic remained stalled past midnight, many truck drivers went to sleep, further delaying the effort to keep traffic flowing. Emergency officials had to knock on truck cabins to alert drivers that the road ahead was clear.

The National Guard helicopter surveyed the scene again at 4 a.m. and traffic was still blocked by stalled cars. Another sweep at 8 a.m. found traffic was moving, though very slowly.

There were no serious crashes or injuries resulting from the traffic jam.

Wow. This just shatters my image of my home state.

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Last night I attended the University of Wisconsin Varsity Band's Annual Spring Concert in the Kohl Center. When my friend Paul Hunter invited me, I had no idea what I was getting into, but it was a blast. Seriously, I haven't had that much fun in a long time. There was nothing subtle in this concert, just two hours of brass, percussion, and pyrotechnics. Band Director Michael Leckrone is insane, and he had everyone in the place dancing and singing. It also explained a lot about certain members of the Alumni Band.

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I think that's how my children will remember the Blizzard of 2007. Church was cancelled, and Mother Nature created a six-foot snow drift beside our garage. Two of my children spotted an opportunity.

My wife later helped the children build "Snowhenge," a supernatural monument, which doubled as a resting place.

We don't own a snow blower, so we clear our driveway the old fashioned way.

My oldest son shoveled the driveway three times in 24 hours. That pile of snow is mostly his work.

Of course, he had a bit of help from his old man.

At the end of the day, after spending about ten hours in the snow, two of my children discovered a 15-foot luge course on one of the drifts, which they attacked heartily on their backs without a sled. For a child, it doesn't get much better than this.

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Tomorrow's high in Madison is projected at 23° F, but I will miss Madison's balminess. I will be in LA, presenting a paper at Steve Bainbridge's Corporate Governance Colloquium.

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Syttende Mai means May 17th in Norwegian. This day is also known as Norwegian Constitution Day.

The short version: on that day in 1814, Norway adopted its own constitution after living under Danish rule for 500 or so years.

The longer version: after the Napoleonic War, a humbled Denmark gave Norway to Sweden, but Norway didn't want to go to Sweden so Norway adopted a constitution and declared its independence, which Sweden rejected, so they went to war, but they eventually decided to live in peace as separate kingdoms under a common king (Sweden's, of course), with Norway gaining true independence only after many years (in 1905). Whew!

Anyway, the Norwegians still celebrate May 17, and as a half-blooded Norsk (my mother is all Norwegian), I felt obliged to take my family to the Syttende Mai Festival in Stoughton, Wisconsin (just south of Madison). May 17 fell on a Wednesday this year, so the party was moved to the weekend. We weren't able to stay long, but actually, it was sort of dull, so we were happy to leave. But we did manage to find some cheese at the festival (this is, after all, still Wisconsin).

And if you are wondering, they were squeaky. Just like they are supposed to be.

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Madison was recently named the most romantic city in the United States.

Really? Romantic!?

Perhaps the judges hadn't seen this, or Boulder surely would have won the honor.

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Eat your heart out, Steve Bainbridge! We are enjoying another winter storm here in Madison. All of this snow has put me in a snowmobiling mood. Yesterday, I checked rental prices on snowmobiles. Look for a report just after Christmas.

Writing the word "snowmobiles" triggered a strange childhood memory. When I was in grade school, my teacher had all of us stand in groups based on our brand loyalty. Ski-Doo kids over here, Arctic Cat kids over there, etc. The point of that exercise has been lost to my memory, but I remember that Anthony Larson was the only person in the Rupp group. Anthony was always a little different.

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Fast Company is trying to locate hubs for the "creative class" (Richard Florida's term), and Madison is one of those hubs:

A progressive-minded enclave where unemployment is a rock-bottom 2.5% and the creative class continues to expand at an average of 7.8% a year. Madison owes much of its success to the 26,000 people who work in high-tech fields--a number that's growing every year. The vast majority of Wisconsin's recent $750 million biotech initiative will wind up here.

Madison was one of only two cities on the list located east of the Mississippi. The other: Raleigh-Durham, North Carolina.

Thanks to Allison Christians for the pointer.

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Where is the best place in the world to live? The Economist purports to have the answer (Ireland). My co-blogger Frank McIntyre explains some of the problems with the methodology, but I am undaunted. Below is a list of the best places in the United States where I have lived (with "lived" being anyplace where I have resided long enough to receive snail mail), ranked according to my own very subjective standards of livability and attempting to control for my job/school satisfaction in the particular locale (e.g., I had great job/school satisfaction in the three lowest-ranked locations):

1. Madison, Wisconsin
2. Lake Oswego, Oregon
3. Provo, Utah
4. Wilmington, Delaware
5. Salt Lake City, Utah
6. Newport Beach, California
7. Tempe, Arizona
8. University City, Missouri
9. Burk, Virginia
10. Osseo, Wisconsin
11. Nashville, Tennessee
12. Cleveland, Ohio
13. Chicago, Illinois
14. Houston, Texas
15. Lafayette, Louisiana

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