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?
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…..
