A federal appeals court has rekindled a challenge to a Wisconsin rule that allows graduates of the state's two law schools to become licensed attorneys without taking the state bar examination.
The U.S. Court of Appeals for the 7th Circuit on July 9 remanded a class action launched by two graduates of out-of-state law schools who allege that Wisconsin's "diploma privilege" rule is unconstitutional.
Wisconsin admits graduates from Marquette University and the University of Wisconsin Law School to practice without requiring them to take the Wisconsin bar exam. Only one other state, New Hampshire, admits graduates who haven't taken a bar exam — in that case, attorneys who have completed a special program at New Hampshire's only law school, Franklin Pierce Law Center.
Wisconsin requires graduates from outside the state to take the state bar exam in order to practice. It also permits bar admission without an exam for attorneys who have practiced for at least five years in another state.
The lawsuit alleges that the diploma-privilege rule unfairly restricts the mobility of out-of-state graduates in violation of the commerce clause in Article 1 of the U.S. Constitution.
Without addressing the merits of the arguments, the appeals panel held that the validity of the parties' arguments remained unclear because of the lower court's dismissal. Evidence was necessary to determine whether the diploma privilege creates an arbitrary distinction between in-state graduates and out-of-state graduates, it said. Such a determination, the court concluded, would help the courts weigh the burden on interstate commerce.
Judge Richard A. Posner wrote the opinion. Also on the panel were judges Kenneth F. Ripple and Diane P. Wood.
Here's an extract from the decision:
For suppose—a supposition not only consistent with but actually suggested by the scanty record that the plaintiffs were not allowed to amplify—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 (which happens to be within a stone’s throw of Wisconsin, as are the three law schools in Minneapolis). That would suggest that the diploma privilege creates an arbitrary distinction between graduates of the two Wisconsin law schools and graduates of other accredited law schools. And it is
a distinction that burdens interstate commerce. Law school applicants who intend to practice law in Wisconsin have an incentive to attend one of the Wisconsin law schools even if, were it not for the diploma privilege, they would much prefer to attend law school in another state.