Wisconsin Law School Privilege In Court

Wisconsin's diploma privilege to practice in that state without taking the bar exam for graduates of Wisconsin law schools is under attack.  Actually, it's been under attack since 2007 with lawsuits filed, dismissed, reinstated on appeal and turned into a class action.  The latest event came last Thursday when Judge Posner returned the case to the District Court with an opportunity for plaintiffs to prove their case.  Here the issue is whether the Wisconsin rule favoring attendees of Wisconsin Law Schools (there are only two, Marquette and the University of Wisconsin at Madison) burdens interstate commerce.  Graduates of other law schools not in Wisconsin either have to practice for five years in another state or take the Wisconsin Bar Exam in order to practice there.  Wisconsin is the only state with this type of rule. 

The defendants argued that Wisconsin Rules require Wisconsin law schools to teach Wisconsin law.  The Court did not deny this but said that there is no way to tell if Wisconsin schools actually teach that as a component when a large part of the bar exam focused on "national" law.  The Court did not assume that the curriculum matched the rules or even if it did, whether that made a difference in the analysis.

The case is Wiesmueller v. Kosobucki (08-2527, July 9, 2009).  The Milwaukee Journal-Sentinel has a story on the case.

From the opinion:

It is enough that an aspiring lawyer’s decision about where to study, and therefore about where to live as a student, can be influenced by the diploma privilege to bring this case within at least the outer bounds of the commerce clause; for the movement of persons across state lines, for whatever purpose, is a form of interstate commerce. Sestric v. Clark, supra, 765 F.2d at 661. The effect on commerce of the discriminatory diploma privilege may be small and, if so, not much would be required to justify it. Id. at 664. Our concern is that there may be nothing at all to justify it. The lawyer for the state acknowledged at argument that she has no personal knowledge that Wisconsin law occupies a larger place in the curriculum of the Wisconsin law schools than of law schools elsewhere. For all that appears, the faculties of the Wisconsin law schools use the same casebooks and other teaching materials used at schools in other states—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 12 No. 08-2527 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.

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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.  [MG]