Students graduating from Wisconsin law schools (i.e., University of Wisconsin and Marquette) are automatically licensed to practice law in that state—without passing the bar exam. This is known as the “diploma privilege” and Wisconsin is now the only jurisdiction honoring such a rule.
In his lawsuit against the Wisconsin Supreme Court and the Wisconsin Board of Bar Examiners, an Oklahoma City University School of Law student argues that the Wisconsin diploma rule violates the Commerce Clause because it creates an arbitrary distinction between two classes—graduates of Wisconsin law schools and all other law school graduates. This distinction is claimed to burden interstate commerce because graduates of non-Wisconsin schools must fulfill additional requirements to practice law in the state. Whether the diploma privilege violates the Commerce Clause apparently rides on the concentration of Wisconsin-specific law contained in the Wisconsin schools’ curriculum; if the schools are teaching Wisconsin law, then there is a valid basis to distinguish between the two groups, and the diploma privilege does not violate the Commerce Clause. The Seventh Circuit Court of Appeals sent the case back to the district court, which previously dismissed it, to decide this issue.
Aside from the amount of Wisconsin law a student learns, there are several arguments for and against the diploma privilege. On the pro side:
- The Wisconsin Supreme Court has oversight of the schools’ quality and curriculum, so presumably Wisconsin law could be taught even if it’s not being taught now
- The Wisconsin schools are free to accept those who would be likely to pass the bar (it is worth noting that both UW and Marquette are top 100 law schools)
On the con side:
- The Wisconsin Bar Exam includes both uniform and multistate topics (including the Multistate Bar Exam), which is taught at all law schools
- Wisconsin law school grads have an advantage in the job market as they do not have to wait for bar exam results
It is also arguable that, because UW and Marquette have 100% pass rates for graduates “taking” the Wisconsin bar exam, the schools’ rankings may be artificially inflated. (Of course, legitimacy of rankings is a perennial source of contention in and of itself.) However, the gravity of these numbers on the rankings is minimal—a school’s bar passage is weighted at a factor of .02.
Although I’m in no position to opine on the legitimacy of a diploma privilege, I will share this: I attended law school in Michigan, and aside from a trusts class taught by an adjunct professor, I don’t recall learning much Michigan law. I was, however, surrounded by Michigan law; I worked in a legal aid clinic in Michigan, I edited articles written by Michigan lawyers on Michigan-related topics, I was a student member of the State Bar of Michigan, and so on… Then I moved to Illinois and everything was different.
What are your thoughts on the diploma privilege? Is it a valid institution that should be continued, or even extended to other states? Or is it a historical relic that should be relegated to the dustbin of history? Tell us your thoughts in the comments…..
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I firmly support such a rule. Over the years, the bar exam in many states has become (1) much harder (2) much more of a cash grab for the state bar and the test-prep companies.
On the substantive side, I doubt that the ability to determine whether or not a particular trust violates the Rule Against Perpetuities has any bearing on an individual’s abilities as a lawyer. That said, the substantive aspect of the bar exam isn’t even my real objection: Rather, I object to the cost.
The cost of prepping for and taking the bar exam is prohibitive. Many law school graduates – who would make fine lawyers – can’t afford to dedicate the appropriate amount of time to their studies because they’re busy working full-time. I know that’s a hard thing for lots of folks at the top to fathom. But the truth is, the legal profession has long been a profession for people from affluent backgrounds. Spare me the anecdotes about Abe Lincoln, etc. The overwhelming majority of kids at my school were from moneyed families. They could study for the bar without worrying about paying the rent. They could take an expensive prep course without worrying about the cost. For the kid whose family doesn’t have money, its not just studying for the bar: its working, paying for the prep class, and studying for the bar.
Recognizing the inherent inequity in the entire process, I certainly don’t object to Wisconsin’s system.
Also, as regards this particular case, I don’t find the argument that persuasive. The distinction in question is Wisconsin graduates v. non-Wisconsin graduates. You can – as your article suggests – look at their classes & the amount of Wisconsin law. But it could be the case that individuals who attended law school within Wisconsin – regardless of classes taken – have had much more exposure to Wisconsin law. This could come through law-related jobs, internships, clinics, volunteer work, etc. Any number of factors could lead the Wisconsin bar to conclude that students who attended law school in-state are “different” than students who attended school elsewhere.