Diploma-Privilege Case Continues

Posted on Categories Education & Law, Legal Education

The United States Court of Appeals for the Seventh Circuit has handed down an opinion in Wiesmueller v. Kosobucki, No. 08-2527, a class action challenging—under the federal Constitution’s “dormant commerce clause”—the diploma privilege.  The diploma privilege, of course, is the Wisconsin Supreme Court rule that permits law graduates of Marquette University and the University of Wisconsin to be admitted to the practice of law in Wisconsin (without, for example, having to take a bar exam).  The Seventh Circuit reversed the district court’s dismissal of the case, not because it concluded that the diploma privilege is unconstitutional but because the plaintiffs should have an opportunity to submit evidence on the matter.  The court stated that “Marquette and Madison are law schools of national stature, and we can hardly infer without any evidence that they concentrate on educating their students in the law of the state that these law schools happen to be located in . . . .”  Slip op. at 11.  So it remanded (stressing that “[w]e intimate no view on the ultimate outcome”).  Id. at 15.

The court said much else of note.  This includes that the diploma privilege “has only indirect effects on interstate commerce and regulates evenhandedly” and that “the regulation must be at least minimally reasonable.”  Id. at 8 (internal quotation marks omitted).  On the latter point, the court noted as follows: “We emphasize ‘minimally.’  The judiciary lacks the time and the knowledge to be able to strike a fine balance between the burden that a particular state regulation lays on interstate commerce and the benefit of that regulation to the state’s legitimate interests.”  Id.  (I cannot resist adding that the court allowed that “[t]he two law schools in Wisconsin are very fine law schools, doubtless among the nation’s best . . . .“  Id. at 13-14.)  The problem, according to the court, is that “we find ourselves in an evidentiary vacuum created by the early termination of the case by the grant of a motion to dismiss.”  Id. at 8-9.

While Marquette is not a party to this case (the defendants are the members of the Wisconsin Supreme Court and its Board of Bar Examiners), I expect that on remand (and any subsequent appeal) the diploma privilege will pass constitutional muster.  This is the beginning of my seventh year as dean and thirteenth as a member of the faculty at Marquette; throughout this time Marquette Law School has sought to ensure—because of the diploma privilege—that our students are especially introduced to the law and legal profession of Wisconsin.  Certainly I expect that it is not the case (to quote a “supposition” posed by the Seventh Circuit) “that Wisconsin law is no greater part of the curriculum of the Marquette and Madison law schools than it is of the law schools of Harvard, Yale, Columbia, Virginia, the University of Texas, Notre Dame, the University of Chicago, the University of Oklahoma, and the University of Northern Illinois.”  Id. at 9.  Indeed, I know it not to be the case at Marquette, and I expect that a similar thing is true at the University of Wisconsin.  To be sure, it will take a while to demonstrate all this through the litigation system, but Marquette will provide the Attorney General’s office any support that it requires in marshaling evidence.

Author: Joseph D. Kearney

On July 1, 2003, Joseph D. Kearney became the ninth dean of Marquette University Law School. Dean Kearney has been a member of the Marquette faculty since 1997. Prior to coming to Marquette Law School, Dean Kearney practiced for six years at Sidley & Austin, Chicago's largest law firm. He served as well as a law clerk to the Honorable Antonin Scalia, Justice of the United States Supreme Court, and to the Honorable Diarmuid F. O'Scannlain of the United States Court of Appeals for the Ninth Circuit. Dean Kearney is an accomplished teacher, scholar, and lawyer. His teaching focuses on civil litigation, including courses in Civil Procedure and Advanced Civil Procedure. His scholarly articles have appeared in the Columbia Law Review, University of Chicago Law Review, University of Pennsylvania Law Review, Hastings Law Journal, and Marquette Law Review, among other journals. They variously focus on regulation of industry (particularly telecommunications), civil litigation, and judicial selection. His background as a practitioner is in appellate and telecommunications litigation, and he has argued cases before the Wisconsin and Illinois Supreme Courts and the United States Court of Appeals for the Seventh Circuit and has been the primary draftsman of winning briefs on the merits in the United States Supreme Court. Dean Kearney is an honors graduate of Yale College and Harvard Law School.

15 thoughts on “Diploma-Privilege Case Continues”

  1. Now all our admissions literature can say that Richard Posner, most cited legal scholar of all time, has labeled Marquette a law school “of national stature”!

  2. Well spoken, Dan, although Justice Posner had some very “intimating” comments during oral arguments concerning the status of Wisconsin law being taught at our school of “national stature.”

  3. You called it, Dean: Remand for fact exposition. Dimploma privilege will survive final dispostion. The regulation of lawyers in Wisconsin has always been minimally reasonable.

  4. Keep on plugging, Joe. The emphasis on Wisconsin law at Marquette is a direct consequence of the diploma privilege and serves our state very well. M.U.’s graduating attorneys are better prepared for practice in Wisconsin than the brightest student from Harvard. Sorry, Joe, but that is true. The evidentiary matters will bring out the number of graduating attorneys who stay and practice here.

  5. Don’t forget to credit Judge Posner for that. See Suhr comment (quoting Wiesmueller v. Kosobucki, No. 08-2527, slip op. at 11 (7th Cir. Jul. 9, 2009)).

  6. The issues that this lawsuit raises, and that Judge Posner frames tentatively in the court’s opinion yesterday, are interesting. Fair minds can differ on the proper eventual outcome.

    But I hope that readers do not miss the Seventh Circuit’s cue. If Marquette University Law School and the University of Wisconsin Law School want to break out of a provincial cast and demonstrate convincingly that they are national law schools, they ought not continue to support the diploma privilege. The evidence necessary to sustain this privilege will portray these two fine schools as places that have little greater purpose than to mint purely local lawyers. That would be unfortunate and, I think, unfair to many of the students, alumni, and faculty at both schools.

    The tag “diploma privilege” is important here. That is what we call this Wisconsin rule; that is how we conceive it. Perhaps therefore we should begin to think of this privilege as lawyers do of evidentiary privileges: they carry significant costs and ought be limited closely to the important values they protect. I don’t know that I can identify any normatively worthy value for which this privilege remains an essential bulwark.

    Perhaps others can. If not, then like evidentiary privileges and certainly like privilege in the broader sense, we rightly should think critically about it.

  7. As a rising 3L at Marquette, I must first disclose that I am a not-disinterested party to the outcome of this suit. With that disclosure, and with the hope that my comment here does not appear too self-serving or sycophantic, I would just like to give one small example about how Marquette has helped me learn Wisconsin law. I am currently clerking for the Brown County Circuit Courts (Green Bay), and one of my very first assignments was to write a decision in a complex (to a rookie like me) case involving the intersection of motion to dismiss, notice of claim, and declaratory judgment. Thankfully, I had taken Advanced Civil Procedure, and the preparation paid off. The same applies to the decisions that I write for summary judgment motions, John Doe proceedings, judge substitutions, petitions for writ of certiorari, et cetera.

    Likewise, my criminal law courses (Criminal Law, Criminal Procedure, Sentencing, Constitution & Criminal Investigation) serve me very well right now in Brown County, as well as during my judicial internship this past spring with the Milwaukee County Circuit Courts (felony division). Indeed, sometimes the very case that I had read for my ConCrim course I incorporated later that day or the next in a bench memo. In sum, I concur with the assertion that Marquette has “especially introduced [Marquette students] to the law and legal profession of Wisconsin.”

  8. It may be worth remembering that the original (circa 1870) justification for the diploma privilege at the University of Wisconsin was that the examinations required to earn the bachelor of laws degree at the University of Wisconsin were more rigorous than the orally administered Wisconsin bar examination. Once Wisconsin moved to a written bar examination, the rationale became that the law school examinations were at a minimum the equal of the examination administered for admission to the bar. That was still the case when the diploma privilege was extended to Marquette in the early 1930’s.

    The story is told in detail in William Johnson’s underappreciated history of the Wisconsin bar, Schooled Lawyers: A Study in the Clash of Professional Cultures (1978).

  9. I think it is important to remember that the diploma privilege is not only a privilege for the graduates of the law schools at Marquette and UW-Madison, but also a privilege for the state of Wisconsin. The diploma privilege helps Wisconsin retain highly-educated, and well-compensated, people. Now, more than ever, anything the state can do to spur job creation, especially well-paying jobs, should be viewed as an advantage.

  10. Blah, Blah, blah. Has anyone considered this:

    Allowing only UW and Marquette grads automatic admission discriminates by unfairly stacking these law grads in the local market.

    The issue is not what kind of law is taught, or “how rigorous” the law school exams are.

    The issue is interstate commerce.

    Because many of the graduates of these schools are too lazy to move anywhere (other than WI) and take a bar exam, they look for jobs in the local area. The market is thus loaded with, and predominantly controlled by, alumni of these schools.

    Enough with the pompus idea that “our school” does this or “our school does that.” Who cares?

    Favoring a local market is unconstitutional.

  11. First and foremost, I went to a non-Wisconsin law school, and passed the bar exam on my first try.
    The plaintiff in this suit must not have been paying complete attention during his Constitutional Law classes while citing the Commerce Clause, or as someone else put it, the Dormant Commerce Clause, or another way to put it, the Negative Implications of the Commerce Clause.
    There have been many challenges to states doing similar things to protect economic advantages within such states. However, when judges in the Federal Court System have reviewed these cases, one of their biggest concerns is that other states will begin to create similar “protectionist” laws.
    I believe that Wisconsin is now the only state that offers the diploma priviledge, and I can assure you that no other state in the union is going to do away with their bar exam.

  12. Believe it or not, Wisconsin is not the only state that admits law school graduates who have not taken a bar exam. Although not nearly as sweeping as Wisconsin’s Diploma Privilege, New Hampshire admits graduates of the Daniel Webster Scholar Honors Program at Franklin Pierce Law Center (the state’s only law school) to practice in New Hampshire without taking a bar exam. The program’s website explains:

    “Students who complete the program are certified as having passed the New Hampshire Bar examination, subject only to passing the Multistate Professional Responsibility Examination (MPRE) and the New Hampshire character and fitness requirements.

    “Webster Scholars practice in states other than New Hampshire. Admission to practice in New Hampshire is a benefit, not an obligation. In addition to being admitted to practice in New Hampshire, Webster Scholars are eligible to sit for the bar exam in any jurisdiction for which they would otherwise qualify based upon their graduation from an ABA accredited law school.”

    More information on this program can be found here: http://www.piercelaw.edu/websterscholar/

  13. As a Wisconsin native, and undergraduate alum of Marquette University, who went out of state for law school but now wants to return home, I can say firsthand that this rule makes it immensely more difficult to find gainful employment because of the built in advantage of the diploma privilege. No Wisconsin firm is going to want to hire me until I pass the bar, whereas those graduates of MU or UW can just go in right away.

    If the state of Wisconsin truly wants qualified lawyers, they would require their in-state graduates to take both the MPRE and the bar examination.

  14. My Con Law may be a little rusty, but I always thought that the “commerce clause” was designed to make anything that passes through interstate commerce the domain of the federal government. How can the regulation of Wisconsin lawyers pass through interstate commerce? How can the regulation or licensing of any state’s lawyers pass through interstate commerce? If the licensing and regulation of lawyers is truly governed by the “commerce clause”, then I suggest that I be allowed to practice in such exotic locales as Hawii or California without passing their bar exams, because that too should be regulated through interstate commerce. This argument leads us to the absurd result that the federal government would have to regulate all lawyers in all states.

    I believe that the challenge to the diploma privilege under the guise of the “commerce clause” should fail because each state has its own interest, which is purely local, in regulating and licensing the people who are allowed to practice law in the state. The State of Wisconsin sets the standards for someone to practice law in Wisconsin, not some committee from Washington or a multistate panel. The Supreme Court of Wisconsin and the State Bar are more in touch with what the citizens of Wisconsin need and want in their local Bar.

    The fact that someone who graduates from a law school outside of the State of Wisconsin wants to come to Wisconsin and practice law, and not take a bar exam, like the graduates of Marquette and Madison, does not move this into interstate commerce. That person can take a bar or that person can get licensed in another state, practice for the requisite period of time and then get admitted to Wisconsin.

    The end result is still that the State of Wisconsin is the one who regulates who is and who is not licensed to practice law, within the borders of Wisconsin.

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