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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My former colleague Jason Czarnezki announces a truly momentous gift for Marquette Law School.

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Three weeks ago we moved from Milwaukee to Champaign, and I am happy to declare us "moved in."  We have pictures on the wall, books on shelves, and leftovers in the refrigerator.  At work, we have permanent offices, computers, phones, etc.  So, I thought today would be a good day to pay homage to Milwaukee, a town we never thought we'd live in but came to love in the three wonderful years we spent there.  So, here's what I'll miss about Milwaukee:

1.  Living by Lake Michigan.  Raised a land lubber, I never lived by the water.  (Houston is at least 45 minutes from the Gulf of Mexico.)  Living walking distance from Lake Michigan spoiled me for life.  I know all of you in California or Florida are chuckling to yourselves, but you also have to empathize with being able to stroll by a body of water so large you can't see the other side.

2.  Kopp's Custard.  Driving home from work and seeing the flavor of the day on the Kopp's sign -- that's how we planned our evenings.  Yum.

3.  Neighborhood schools.  We lived within walking distance of our public elementary school, and our duaghter was getting to the age where she would have joined the group of kids from our block who set off for school each morning at 7:45.  Neighborhood schools have great ripple effects.  Kids go to school with people on their block, play dates are easy to manage, you get to know your neighbors through school activities, you can always get someone to pick up your child, take your child, etc.

4.  The Weather.  Paradox?  I will not miss the winter weather, but I will miss the summer weather.  Living in the 70s (temperature, not decade) is not a bad way of life.  Not running the air conditioner for weeks at a time, but getting the breeze through open windows, is really something everyone should experience.

5.  Laundry Chute.  OK, this may seem like a small thing, but why did people stop building houses with laundry chutes?  In our older neighborhood (1920s-30s), houses have laundry chutes on the 1st and 2nd floors that go to the basement, so you just send down dirty clothes straight to the laundry room.  We're having trouble going back to the "lug the hamper up and down the stairs" system.

6.  Wisconsin State Fair.  Cheese curds, sausage on a stick, cream puffs?  Sigh.

7.  Major League Baseball.  We grew to love the Brewers, and at least we got to see the Astros a few times a year.  But, we have four stuffed dolls to remind us -- Polish Sausage guy, Brat guy, Hot Dog guy, and Italian Sausage guy.

8.  Jewish Community Center.  Although we're not Jewish, our life seemed to revolve around the JCC in our neighborhood.  Our kids went to preschool/after care there, we took swim lessons there, we went to summer camp there, and I went to Mom's Night Out there.  Luke said to me last night, "They don't have challah at my new school."  That made me very sad.

9.  My friends.  Someone once told me that after age 30, if you can say that you have three good friends, then you are blessed.  How blessed am I?  I had three good friends that I worked with every day!  I also had great friends in my neighborhood -- real friends -- the kind that you don't have to clean your house for, the kind you can drop in on anytime.  We are beginning to make those kinds of friends here as well, but we will always have a place in our heart for our Marquette/Whitefish Bay friends.

10.  Teaching at a Jesuit institution.  My experience at a Jesuit institution should be the subject of a different post, but I think it's sufficient to say that I was given a great gift at Marquette, and I am a better person and a better teacher because of it.

Farewell, Milwaukee!

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After years of procrastination, I finally visited the gorgeous Milwaukee Art Museum this past weekend. As luck would have it, we arrived just as an air show was beginning over Lake Michigan.

After visiting the Museum of Modern Art in New York this past spring, I was not in the mood to be easily impressed, but we found some great treasures in the MAM, including this sculpture by Cornelia Parker entitled Edge of England:

I never realized how much Honoré de Balzac looked like Chris Farley:

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Apparently some folks around Marquette were conspiring behind my back -- with the cooperation of my husband, no less.  The end result was that lots of folks pitched in and got me the greatest parting gift ever -- a triple-ought guitar.  I am now officially cool.

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Not to get too emotional, but I just taught my last class here at Marquette.  I'm sure in the next month or so I'll post some additional thoughts on the how much of a gift these last three years have been to me and my family, but right now I'm being very nostalgic.  In my BA class that I just left I had many repeat offenders and new friends.  Although I'm looking forward to the future, I will miss this place. 

I promise I won't keep on this vein:  "Today I had my last faculty meeting/review session/exam/lunch break at Marquette."

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Yesterday was a "Ferris Bueller" Day here in Milwaukee.  In a month which in Milwaukee can be snowy, drizzly, cold, gray, or all of the above, the temperature yesterday was 83 degrees, and the skies were blue, blue, blue.  Marquette was closed for Good Friday, the public schools were closed for Spring Break, and our preschool was closed for Passover.  So, the kids and I and the rest of the neighborhood, like Ferris, had the sense to take the day off.  We went on bike adventures, bought Easter shoes, set up the sprinkler for all the little girls on our block, had popsicles outside, and walked to a neighborhood deli for dinner.  At the end, we were tired, but it was that "good kind of tired."

I never understood Ferris until we moved to Milwaukee.  Ferris wakes up in April or May of his senior year and realizes that the day is too brilliant to go to school.  As a high schooler in Texas, this did not move me.  Most days are warm, sunny and brilliant.  Ah, but Ferris goes to school in the Chicago suburbs where there are only a handful of these kind of days.  I know from living in Milwaukee, that you have to make hay while the sun shines.  Only the most soulless creature could work or go to school should our town be gifted with one of these magical days.  You even have to wait until the next day to blog about it.

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I'm not sure if I'm relaxing yet, but we now have a binding contract to sell our home in Whitefish Bay.  The experience was exhausting, although it went as quickly as could be reasonably expected.  We signed a contract 14 days after listing, then all contingencies were waived 10 days after that.  The stress of the unknown and of keeping the house pristine with two kids a dog and a cat has taken all of my energy.  I am quite happy now to be "sold."

Paul and I have sold more than our share of primary residences now, and we should be experts at "staging" a house by now.  When we sold our first house, our realtor gave us this really amateur video in which a woman went room-by-room through a house and pointed out how to de-clutter and maximize each room's potential.  The woman said such gems as, "Family photos are great, aren't they?  Great for LIVING, but not for SELLING."  When we left Houston for Milwaukee, our realtor sent an interior designer over to do the same thing in person.  I think both of these techniques are great because an objective third party tells you how bad your taste is.  You can't really be mad at your realtor for that, can you?  So, for this sale, we took heed to all that advice, packed before we moved, and staged the house.  (This is easier to do without kids, who believe they need every single Power Ranger thing close at hand just in case, and in a city with only one season, so you don't need coats/clothes for the three seasons of March in Wisconsin.)

All of this staging reminded me of a series of posts from a while ago by Spencer Overton on blackprof.com. about neutralizing race from a home that is for sale (Part I, Part II, and Part III).  According to the theory behind these posts, home buying is not purely rational; buyers may see the race of the sellers as a negative factor in deciding between two similar properties at similar prices.  I have no problem believing that this theory is valid.  Part of this bias is innocuous; from what these "staging" experts have pounded into my brain, would-be buyers like houses in which they can see themselves.  To that end, buyers are told to put away family pictures and other identifying markers that might get in the way of that vision.  Neutral colors are better than bright ones; McPottery Barn is the look.  I also have no problem believing that part of that bias may be that some number of buyers (hopefully small) are consciously or subconsciously racist and so either could not see themselves living in the house or would not want to.

Interestingly, I think that our house sale can fit into this paradigm somewhat, although all residents of our house are white and so are the buyers.  But, all the residents of our house are from Texas.  I'm from Lubbock; Paul is from San Antonio.  Although I never thought about it before, a lot of our furnishings are sort of Southwest/Mission style.  Not teal and peach with coyotes and cactuses, mind you, but reproductions of Mission style antiques.  Also, what constitutes "art" at our house are Georgia O'Keefe prints and professional photographs of Live Oak trees, windmills, and yes, cactus.  We even have a cow's skull, but Paul made me put that away in our staging phase.  So, let's look at our buyers.  According to them, they've looked at 40 properties in Milwaukee since they moved here a couple of months ago.  They haven't liked any house until ours.  Guess where they are from?  Albuquerque, New Mexico.  The buyer told me that they have the same bedroom set as we do, and the same lawn furniture.

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Before moving from Texas to Milwaukee, we never realized that St. Patrick's Day was an actual holiday.  In Texas, the day is an excuse to wear a green tie.  Here, it rivals Hallowe'en and Valentine's Day as second-tier holidays.  I think the bars open in 15 minutes, if they are not open already. 

At our house, St. Patrick's Day is known as St. Packer's Day.  When we first moved, our kids were told to wear green to school that day.  Well, in Milwaukee, 90% of green clothing has some sort of Green Bay Packers symbol on it.  So, elementary rooms are filled with kids in the Packers clothing.  Since my kids had no idea who St. Patrick was, they thought it was St. Packer's Day.

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A year ago, I was getting a manicure in a southwestern state, and my manicurist asked me where I lived.  When I told him that I lived in Wisconsin, he got very excited and asked me if I could send him some ginseng.  He told me Wisconsin was famous for ginseng, but I had not heard of this before.  So, this morning, the WSJ has an article on Wisconsin ginseng farmers!  Apparently, even though the ginseng market has grown, ginseng farmers from Wisconsin are struggling to compete against inferior Chinese ginseng falsely labelled as "Wisconsin ginseng."  Maybe ginseng should have been on the Wisconsin quarter!

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Friday night, the Public Interest Law Society at Marquette held their annual Do-Gooder's Auction, named after our late dean, Howard Eisenberg.  For the third year in a row, I auctioned off dinner at my house, featuring southern favorites and a sing-a-long.  Some very brave students bid the dinner up to $750, so now the pressure is on!  I feel like the restaurant that makes the $30 hamburger with foie gras or truffles or whatever.  We'll have to pull out all the stops.

I am most excited, however, by what I won at the auction.  I won a student.  For the low price of $60, a student of mine will be my "entourage for a day."  I've been thinking all day about what my entourage can do for me.  Obviously, I will not be driving that day.  Or going to the cafe to get my green tea.  Or making copies.  Or carrying anything in my hands at all.  Also, theme music will follow me wherever I go.  I wonder if babysitting is included?  After everything I say, I want my entourage to say, "You go, girl."

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Friday, we were honored to attend a wedding at the Gesu Parish on campus at Marquette.  What was notable about this wedding is that it was originally scheduled to take place on Friday, December 30 in New Orleans.  Obviously, after Hurricane Katrina, the wedding was relocated to Milwaukee, where both the bride and groom reside.  However, the spirit of the Big Easy came with Louisiana relatives.  One example:  the reception lasted from 4:00 p.m. until 12:30 a.m.  (At least, it officially ended at 12:30; who knows where it went from there!)

One of the scriptures (from the Song of Songs) read at the ceremony was very fitting for this couple, who realized that love is too strong to be doused by a tiny thing like a Category 5 hurricane:

Many waters cannot quench love; rivers cannot wash it away.

Best wishes to Tom and Lise!!

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the tree in front of my house!  We have had quite a storm here today, and the tree across the street was hit by lightning.  It split a branch of the tree, but the branch was not very big.  So, while it is still overcast and gray and drizzling, the Village sends out a cherry picker to cut the branch. 

Now, I'm no physicist and I don't want to tell them how to do their job, but i wouldn't get in a cherry picker in a lightning storm.  But that's just me.

Perhaps Mr. Tree Doctor is a hero acting in an emergency.  I'm not sure if this is an emergency situation.  The worst case scenario would be that the branch would fall on its own.  Seeing as how the man in the cherry picker simply cut the branch and let it fall on its own, I'm not sure what the benefits of this quick remedy are.  (By the way, there are no power lines, etc. near the tree.)

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