Wisconsin Diploma Privilege and the Dormant Commerce Clause

As most readers are aware, Wisconsin is the only state in the union with a "diploma privilege," which means a graduate from a Wisconsin law school is automatically admitted to the Wisconsin bar upon law school graduation.  A group of plaintiffs filed a class action challenging the diploma privilege.  While the district court granted a motion to dismiss the case, yesterday the Seventh Circuit reinstated the action.  In an opinion by Judge Posner, the panel ruled that the action should not have been dismissed as the record was insufficiently developed on the curricula at the Wisconsin law schools.  Judge Posner stated:

which is likely, since the authors of casebooks aim at a national market. 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 rather than prepare them to practice anywhere in the United States. Indeed, since no graduates of these law schools take the Wisconsin bar exam, the faculty has less incentive to spend time drilling them on Wisconsin law than the faculty of most law schools in other states would have to concentrate their teaching on the law of their state in order to increase the bar exam pass rate of their law school’s graduates.

The defendants argue that the rule of the Wisconsin Supreme Court that we quoted requires that the curriculum of the Wisconsin law schools include Wisconsin law. But that cannot be inferred from the language of the rule or from the list of mandatory and elective courses. The rule merely requires the law schools to offer a rigorous, well-rounded legal education, and it cannot be assumed that such an education must be oriented toward the law of a particular state, even the state in which the school is located. The reference to “rules and principles of substantive and procedural law as they may arise in the courts and administrative agencies of the United States and this state” may denote those rules and principles that are common across American states, including the rules and principles of federal law, of the common law, and of uniform statutes such as the Uniform Commercial Code—in short, the rules and principles that are the common core of legal studies in all law schools that have a national rather than local orientation. This interpretation of the rule is consistent with the fact that Wisconsin permits lawyers who have practiced in another state for a time to practice in Wisconsin without having to pass the bar exam or demonstrate any knowledge of Wisconsin law. 

Christine Hurt, a professor at the University of Illinois-UC - and formerly of Marquette - blogs about her experiences at Marquette at The Conglomerate:

Posner seems to want more facts on exactly how Wisconsin-y the curricula at Wisconsin and Marquette are.  Gordon has argued that his curriculum was Wisconsin-y, but I didn't see a lot of this at Marquette.   No one ever gave me any parameters as to what to teach in my courses beyond a slim course description, which I don't remember mentioning Wisconsin.  Of course, I may be jaded because, like Eric, I am no fan of the privilege.  I think it skews the incentives of graduates to stay in the Milwaukee area, limiting their own opportunities and saturating the market.  It may also incentivize applicants with low success indicators to borrow large amounts of money to go to law school because, if accepted, they are almost guaranteed a law license at the end of three years.

Joseph D. Kearney, the current Dean at Marquette, had another view on Marquette's faculty blog:

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.”   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.

Two final points about the case.  First, Judge Posner cites Hunt v. Washington State Apple Advertising Commission, a perennial casebook favorite.  This fact pattern could be an excellent way to make the case more relevant to students, especially since it focuses on something so essential to their current lives - the bar exam.   Second, Judge Posner also mentioned the possibility of the "market-participant" exception.  Since students are usually hungry for more examples of how the exception works in real life, this case could be useful for that purpose as well.

We'll continue to watch the case and update on the proceedings.

NLS