Challenge to Wisconsin’s Diploma Privilege Continues
Yesterday the Seventh Circuit reversed the dismissal of the class action challenging Wisconsin’s diploma privilege as a violation of the commerce clause. (I previously posted about the case here. ) A few thoughts about this latest development:
1. I remain baffled about what benefit the plaintiffs (graduates of out-of-state law schools) expect to receive from this suit. They have asked for an injunctive order striking a few words from the Wisconsin Supreme Court rule on bar admission. The result of this proposed edit is that Wisconsin would offer the diploma privilege to all graduates of ABA-accredited law schools. But as Judge Posner pointed out in his opinion, the state could also remedy a commerce clause violation by requiring graduates of Wisconsin law schools to take the bar exam. Does anyone really believe that Wisconsin would do anything other than what Judge Posner has suggested? Talk about the potential for a quick race to the bottom! Even if they are victorious, the plaintiffs will be in the same position as when they started: they will have to take a bar exam to practice in Wisconsin (or practice in another state for five years).
2. Judge Posner referred to the diploma privilege as favoring the economic interests of Wisconsin law schools, because prospective students who want to practice in Wisconsin have an incentive to attend the University of Wisconsin-Madison or Marquette. This is undoubtedly true in theory, but I wonder how many applicants this incentive actually yields. First, how many people dream of practicing law in Wisconsin who don’t already have a connection to the state? I suspect that most people who plan to practice in Wisconsin are already living there or grew up there and would like to return. This would make an application to Madison or Marquette likely in any event (particularly an application to Madison, which offers an in-state tuition discount). Second, prospective law students tend to be extraordinarily optimistic about their potential for academic success and, by extension, their ability to pass a bar exam. The exam is also more than three years removed from the decision about where to attend law school. While the diploma privilege may occasionally tip the scale, I suspect most applicants make their decision based on more immediate factors: prestige, physical plant, cost, location, etc. I doubt that the diploma privilege attracts many additional applicants to Wisconsin law schools or discourages many applicants who would like to eventually practice in Wisconsin from attending an out-of-state school.
3. As the case returns to the district court, the most important question is whether the state can prove that Madison and Marquette offer courses that teach Wisconsin law and are therefore different than courses offered at other ABA-approved law schools. At oral argument, Judges Posner and Wood were quite skeptical that the state would be able to offer this proof. (Gordon Smith, a former Madison professor, blogged about this here.) While I cannot speak about Marquette or about the current state of affairs at Madison, I am confident that 12 years ago (when I was a law student) Madison would have been able to satisfy the court. Were my antitrust or federal courts courses different than what was offered at other schools? No. But in the courses that were necessary to qualify for the diploma privilege, I learned a lot of Wisconsin law, even when my professors chose to use national textbooks instead of their own materials. Gordon Smith wrote that the faculty at Madison have “an unusually strong attachment to the home state’s law.” When I was a student, I would have described it a bit differently: I thought the faculty perceived itself as having an obligation to teach Wisconsin law because it knew that students who remained in the state would not take the bar exam.