Monday, October 5, 2009

As we previously reported, Wisconsin’s diploma privilege is currently under attack in the federal courts. The diploma privilege, which allows graduates of Wisconsin’s two law schools to practice in the state without passing the bar exam, is alleged to be in violation of the Interstate Commerce Clause because graduates of Wisconsin schools are treated differently from graduates of schools in other states. The petitioners ask for summary judgment declaring that the privilege violates the clause; the obvious remedy would be to discontinue the privilege for all students.

Now, the privilege is under attack from another source: instead of requesting that it be abolished, Steven Levine, a past State Bar of Wisconsin president, filed a petition with the Wisconsin Supreme Court asking that that the privilege be extended to graduates of all law schools.

In 2007, the ABA reported that Levine has long been a critic of the diploma privilege, and has gone so far as to compare it to the “separate but equal” doctrine. This seems like a difficult argument to make; certainly in-state versus out-of-state law students would receive a lower level of scrutiny than did black versus white school children. Opponents would be hard-pressed to argue that the diploma privilege bears no rational relationship to ensuring the competency of Wisconsin lawyers—an argument based on the Commerce Clause may fare better. But, more importantly, it seems that Levine—as a former president of the state bar—would have reasons other than fairness for opposing the diploma privilege. If he feels that Wisconsin school graduates are less competent for lack of the bar exam, then why would he want to see the diploma privilege extended to all graduates? Conversely, if he feels that out-of-state students are less competent because of taking the bar exam, then we have a different problem altogether.

While it’s true that extending the privilege to all students would level the proverbial playing field, it’s hard to imagine that it would be the best option for the Wisconsin Bar. So is Levine’s argument valid, or is he simply stirring the pot?

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