Court Unanimously Affirms Diploma Privilege

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Category: Legal Practice, Marquette Law School, Wisconsin Law & Legal System
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The Wisconsin Supreme Court voted this morning, 7-0, to maintain the state’s longstanding diploma privilege, in its current form. The unanimous ruling denied rulemaking petition 09-09, in which Steve Levine and various other members of the bar sought either to extend the diploma privilege, as embodied in Wisconsin Supreme Court Rule 40.03, to all ABA-accredited law schools (well beyond Marquette and Wisconsin) or to abolish it altogether. The Court’s ruling was foreshadowed by comments that individual Justices had made in an open administrative hearing and subsequent conference this past Thursday, suggesting that the Court, for all of its members’ varied backgrounds, did not favor the petition. I was among the members of the public speaking before the Court on Thursday and emphasized two points: (1) that the existing approach has been beneficial public policy for the state’s courts and the public and (2) that, in fact, both Marquette and Wisconsin are distinguishable from every other ABA-accredited law school in the important extent to which their students are exposed to precepts of Wisconsin law (as well as in other respects). I also mentioned an additional consideration, with reference both to the petition to amend or repeal and to the recently (and favorably) concluded constitutional challenge to the diploma privilege: requests such as this are destabilizing, imposing costs with no offsetting benefits. They divert the law schools from other important public policy concerns, including ones in which I would rather expect the entire bar to be interested: e.g., how to provide leadership in facilitating access to justice. This additional consideration suggested that, if the Court were inclined in the direction of denying the petition, it should leave no doubt on the matter. The Court—through its unanimous ruling and the strong comments of individual Justices during the open administrative conference—did precisely that.

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One Response to “Court Unanimously Affirms Diploma Privilege”

  1. Mike Zimmer Says:

    Apparently two “Zimmers” signed the petition but I was not one of them. Whenever the issue of the diploma privilege has been raised on blogs, I have responded with a proposal:

    Undertake an empirical study comparing the level and quality of the practice of law by Wisconsin lawyers with the lawyers in any other state. My hypothesis is that Wisconsin lawyers would not suffer by comparison and would likely reveal a higher level of practice. But, if I am wrong, then the diploma privilege should be studied to see if it did influence the level of practice negatively.

    If my hypothesis holds, then the ABA and the rest of the states should study whether the bar exam requirment should be generally replaced with a diploma privilege.

    If I were running things, I would replace the bar exam with a mandated system of representation. There is a huge shortfall of representation of plaintiffs in employment discrimination cases in federal court. Assign a new graduate to a case, under the supervision of a good lawyer, and then survey that lawyer and the judge in the case to assess performance.

    That would probably work better than the bar, it would allow the tremendous waste of time, energy and money wasted studying for and taking a bar exam with something that might do some good.

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