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Saturday, April 11, 2009

Ind. Courts - Wisconsin's diploma privilege under attack

What is the Wisconsin "diploma privilege"? As Judge Posner wrote in this Jan. 29, 2008 7th Circuit opinion:

Wisconsin allows graduates of the two law schools in the state to be admitted to the practice of law without having to take the Wisconsin bar exam. The plaintiff, a graduate of an out-of-state law school, brought this suit against the members of the Wisconsin Board of Bar Examiners and the Supreme Court of Wisconsin, charging a violation of the commerce clause of Article I of the Constitution and seeking injunctive relief.
In this opinion, the Court ruled: "The denial of class certification is therefore reversed and the case remanded for further proceedings consistent with this opinion."

This June 25, 2008 article by Jack Zemlicka in the Wisconsin Law Journal reports:

The suit, Wiesmueller v. Kosobucki, No. 07-211, has been dismissed twice, most recently by Western District Court Judge Barbara B. Crabb on June 18.

Last year, District Court Judge John C. Shabaz dismissed the case and ruled that the issue of class certification was moot. But Wiesmueller appealed the issue to the 7th U.S. Circuit Court of Appeals and Judge Richard Posner reversed the lower court on the point of class certification.

Crabb, like her judicial colleagues in the past, did not rule on the merits of whether or not the imposition of a bar exam infringes on interstate commerce. Although she dismissed Wiesmueller’s case, she did grant class status for another case involving his wife and another out-of-state law student.

In her ruling, Crabb said anyone who applies to practice law in Wisconsin within 30 days of graduating from a law school outside the state can join the lawsuit.

“It’s going to be a cyclical thing where something like 200 people could filter through each year,” said Wiesmueller, who indicated that out-of-state graduates intent on taking the bar exam in Wisconsin first will qualify for the class

On Thursday, the Wisconsin Law Journal had a lengthy story by David Ziemer, who reported:
Wisconsin’s diploma privilege for graduates of the law schools at Marquette University and the University of Wisconsin may be in danger, at least if the Seventh Circuit reviews the merits of the privilege.

Two of the judges at oral argument on Tuesday called the state’s justification for the privilege “fiction.” * * *

Defending the privilege in her brief to the court, Assistant Attorney General Jennifer Sloan Lattis asserted that the privilege is justifiable because it is an “undisputed fact that only Wisconsin law schools systematically instruct in Wisconsin law.” Brief of Defendants-Appellees, at 35.

However, Judge Richard Posner immediately pounced on the assertion as being unsupported by the record. * * *

Stating that he doubted there is any Wisconsin content taught in Wisconsin law schools, Posner observed, “They use standard casebooks, which are national.”

Later, he called the contention that there is such content “a complete fiction,” and bluntly said, “I don’t believe you. I don’t believe the courses are any different from those in Indiana or Illinois.”

Judge Diane Wood also said, “It is totally fictional that students learn Wisconsin law at Marquette or Wisconsin any more than they would learn in North Dakota or Oklahoma.”

The third judge on the panel, Judge Kenneth F. Ripple, also said he didn’t believe Wisconsin law schools teach law any differently, asking “How is the curriculum different from any other national school?”

Listen to Tuesday's oral argument here.

Posted by Marcia Oddi on April 11, 2009 04:24 PM
Posted to Ind. (7th Cir.) Decisions