Court Unanimously Affirms Diploma Privilege

Posted on Categories Legal Practice, Marquette Law School, Wisconsin Law & Legal System

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.

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.

One thought on “Court Unanimously Affirms Diploma Privilege”

  1. 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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