Class Action Challenging Wisconsin’s Diploma Privilege
posted by Sarah Waldeck
As every law school graduate from UW-Madison or Marquette knows, Wisconsin is the last state in the nation to still extend a diploma privilege. Simply put, if students at these schools take certain courses and attain a particular minimum grade in those courses, they can be admitted to practice law in Wisconsin without taking a bar exam.
The Associated Press is reporting that a federal judge in the Western District of Wisconsin has certified a class action challenging the diploma privilege. Anyone who applies to the Wisconsin bar within 30 days of graduating from law school can join the suit, which alleges that the diploma privilege is unconstitutional because it discriminates against out-of-state graduates.
I haven’t thought much about the constitutionality of the diploma privilege, but I have pondered the wisdom of Wisconsin’s policy. As a Madison grad, the issue for me has always been whether it is too easy to gain automatic admission; in other words, should the required minimum grades be higher than they are? I perceive bar exams as performing an important, albeit imperfect (and perhaps too lenient), screening function. Put succinctly, if a graduate can’t pass the bar in the maximum number of times that they are allowed to take it, the public would be better served by having that graduate in a different profession. But I don’t have any empirical data about whether the Wisconsin diploma privilege provides the same sort of screening as a bar exam. (For example, how many graduates in other jurisdictions never pass that jurisdiction’s exam? How many graduates of Madison and Marquette do not qualify for automatic admission?) I do, however, think that a student’s performance in a semester-long class is a more accurate measure of whether she is qualified to be a lawyer, provided that Wisconsin’s bar is set high enough. (Bad pun absolutely intended.)
I’d be interested in relevant data, if anyone knows it. And I’m sure those who are currently sitting in a bar review course have their own opinions about Wisconsin’s system.
June 18, 2008 at 2:10 pm
Posted in: Law School
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Responses (18)
AnonProf - June 18, 2008 at 3:08 pm
Sarah, I think you have it backwards. It seems to me that the Bar exam is a terrible barrier to entry to the legal profession. The exam tests nothing you would do in actual practice, and indeed, requires you to memorize trivial rules, doesn’t allow you to do legal research, and doesn’t test on the law’s gray areas. It seems to me that law school, with its plethora of courses, and analytical content, offers a far better way to measure the abilities of law students who want to become laweyrs. So the answer, it seems to me, is for all states to create diploma privileges — or, indeed, for there to be a national diploma privilege. What a waste of time and effort the bar exam represents.
Ariella - June 18, 2008 at 3:26 pm
Well, as someone who had to take the Wisconsin bar exam because I went to school outside the State, I find the diploma privilege a little ridiculous. I absolutely think that performance on law school exams is in no way indicative of someone’s likelihood of success as a lawyer. For example, I graduated somewhere in the middle of my class, but have had (what I consider to be) a lot of success as an attorney. If my “potential” as an attorney was judged solely on the grades I received as a law student, then I guess I would be finding another profession.
I do think the bar performs an important function. It is imperfect. I can’t say that the caliber of lawyers I’ve encountered in Madison and Milwaukee is better or worse than those I encountered when I practiced in New Jersey. Maybe it doesn’t really matter.
Mike Zimmer - June 18, 2008 at 3:44 pm
As a beneficiary of the diploma privilege in Wisconsin, I think that the empirical question that needs to be answered is whether there is any indication that the quality of law practice in Wisconsin is lower than in other jurisdictions that require a bar exam. My hunch is that, for example, the level of practice of the bar would be hard to differentiate between Minnesota and Wisconsin.
If I am right, then those who want to maintain the present system of bar exams have their work cut out for them.
Just think of all the money spent on bar review courses, all the time spent by applicants studying and taking the bar and by those involved in administering the bar exams. All that money and effort might better be used to prepare law school graduates to practice law at a quality level if it directed at closely supervised public interest work. That would help new lawyers and would add net social value for the legal services provided to people in need who would not otherwise be able to get those services.
So, the lawsuit seeking to extend the diploma privilege, presumably to ABA accredited school graduates outside Wisconsin, may be a step in the right direction. Just as likely, it may cause backlash against the continued use of the privilege in any form. Before any decision should be made, much more data would be useful to decide what direction should be taken.
Mike Zimmer - June 18, 2008 at 3:44 pm
As a beneficiary of the diploma privilege in Wisconsin, I think that the empirical question that needs to be answered is whether there is any indication that the quality of law practice in Wisconsin is lower than in other jurisdictions that require a bar exam. My hunch is that, for example, the level of practice of the bar would be hard to differentiate between Minnesota and Wisconsin.
If I am right, then those who want to maintain the present system of bar exams have their work cut out for them.
Just think of all the money spent on bar review courses, all the time spent by applicants studying and taking the bar and by those involved in administering the bar exams. All that money and effort might better be used to prepare law school graduates to practice law at a quality level if it directed at closely supervised public interest work. That would help new lawyers and would add net social value for the legal services provided to people in need who would not otherwise be able to get those services.
So, the lawsuit seeking to extend the diploma privilege, presumably to ABA accredited school graduates outside Wisconsin, may be a step in the right direction. Just as likely, it may cause backlash against the continued use of the privilege in any form. Before any decision should be made, much more data would be useful to decide what direction should be taken.
Mike Zimmer - June 18, 2008 at 3:44 pm
As a beneficiary of the diploma privilege in Wisconsin, I think that the empirical question that needs to be answered is whether there is any indication that the quality of law practice in Wisconsin is lower than in other jurisdictions that require a bar exam. My hunch is that, for example, the level of practice of the bar would be hard to differentiate between Minnesota and Wisconsin.
If I am right, then those who want to maintain the present system of bar exams have their work cut out for them.
Just think of all the money spent on bar review courses, all the time spent by applicants studying and taking the bar and by those involved in administering the bar exams. All that money and effort might better be used to prepare law school graduates to practice law at a quality level if it directed at closely supervised public interest work. That would help new lawyers and would add net social value for the legal services provided to people in need who would not otherwise be able to get those services.
So, the lawsuit seeking to extend the diploma privilege, presumably to ABA accredited school graduates outside Wisconsin, may be a step in the right direction. Just as likely, it may cause backlash against the continued use of the privilege in any form. Before any decision should be made, much more data would be useful to decide what direction should be taken.
Michael - June 18, 2008 at 3:45 pm
I’m not sure whether this necessarily constitutes discrimination. On the one hand, it does discriminate against law graduates who attend school outside of the state and then seek admittance to the Wisconsin bar. However, it is also in some ways discrimination by choice in that those law graduates could have elected to attend law school in Wisconsin. Consequently, they could have taken advantage of the diploma privilege if they wished, but instead chose not to do so. This would be a different case if UW and Marquette only allowed Wisconsin residents to attend school there. Additionally, there may be an argument that the Wisconsin bar can influence the curriculum and grading requirements at UW and Marquette, but not at any out-of-state schools, thereby requiring those grads to pass the traditional bar exam. Close call on the constitutionality in my opinion.
Christine Hurt - June 18, 2008 at 5:07 pm
Sarah, this is an interesting development. When I taught at Marquette, I often found myself in conversations about the diploma privilege. I don’t think many people in Wisconsin think that the diploma privilege is a great idea, but I was often told that no one wants to be the politician that suggests the privilege be dismantled. A lawsuit by nonresidents might be just the thing to get rid of it once and for all.
I think it would be hard to prove that the privilege lets in a flood of incompetent attorneys into the Wisconsin bar. I saw statistics compiled at Marquette that their graduates performed above average on out-of-state bars when they did take them. I bet Wisconsin compiles the same statistics.
I think the result of getting rid of the privilege would not be an increase in quality of the Wisconsin bar, but a decrease in the number of lawyers. Many students told me that they were job-hunting in Milwaukee instead of Chicago/Minneapolis/etc. because they didn’t want to take a bar unless they had to do so. A Wisconsin bar might encourage students to open to more opportunities.
Samuel Sarbinson - June 18, 2008 at 9:34 pm
The bar is poppycock! Horse poo! Who cares about larceny by trick and the other common law vestiges? The hell with it!
Samuel Sarbinson - June 18, 2008 at 9:35 pm
The bar is poppycock! Horse poo! Who cares about larceny by trick and the other common law vestiges? The hell with it!
A.J. Sutter - June 18, 2008 at 11:48 pm
I’m puzzled by the views that “a student’s performance in a semester-long class is a more accurate measure” of qualifications, and complaints about the artificiality of the bar exam. I totally agree that the bar exam is artificial, but not a whole lot more so than law school exams. And when I was in law school in California in the 1980s, in all my courses (other than law journal and an evidence seminar) the whole semester boiled down to that one grade on the exam. Indeed, some of my better grades were in courses where I stopped attending class after a week or two. Have the principles of law school grading changed so much, in Wisconsin or elsewhere?
Ignoring Constitutional issues, maybe the better argument for the diploma privilege is not that courses are a semester long, but that grade-point averages are earned over a longer baseline of exams given many times during three years, rather than in the single two- or three-day ordeal of a bar exam.
Mike Madison - June 19, 2008 at 7:37 am
Following up on Christine’s comment, I’d be interested in more historical context.
As someone with no connection to Wisconsin, my reaction to the privilege has always been that it has little to do (really) with the quality of legal education, the merits of the bar exam as a screening device, or the quality of law practice in Wisconsin. The privilege is (really) an effort to encourage (State of Wisconsin) law grads to stay in Wisconsin, where they otherwise would be tempted by the bright lights and big salaries of Chicago and Minneapolis.
The historical question: Is this, in fact, part of the real rationale for the privilege?
If so, does that history permit changing the issue to something like: Is it constitutional for a state to set up a state licensing program in a way that is intended to encourage the retention of professionals trained in that state, especially when (as Christine suggests) it apparently does encourage those people to stay?
Ariella - June 19, 2008 at 9:03 pm
So, last night I had dinner with some recently-graduated colleagues and asked them about this issue. My friends — who attended both the UW and Marquette — said that the GPA required to use the diploma privilege in Wisconsin is laughably low, and that the people who aren’t able to cut it usually drop out.
I know that, from my own experience taking the Wisconsin bar, there were very few people who had gone to school in Wisconsin taking the bar in July 2005.
What does that mean? Effectively nothing. The only real issue I see is that people in Wisconsin who use reciprocity to waive into other jurisdictions NEVER have to take a bar exam or the MBE. So, if Wisconsin wants to use the diploma privilege, that’s one thing; it’s a wholly different thing in other states, all of which require the bar exam for admission. I dislike that argument for a number of reasons, not least of which is the fact that it’s reminiscent of some arguments used by gay marriage opponents.
Christopher Wiesmueller - June 21, 2008 at 8:19 pm
As the lawyer who began this case pro se as a law student and is currently representing the class and the current plaintiffs. I just want to clarify a common misconception, we are not trying to end the diploma privilege, our lawsuit seeks to make it universal.
The discrimination issue is the discrimination against interstate commerce, because the State of Wisconsin can not stop commerce coming from outside the state (law school graduates) and through hurdles at them not imposed on their in-state counterparts.
Feel free to contact me via e-mail if you’d like to talk to me about the lawsuit.
Colin Shanahan - June 22, 2008 at 12:10 pm
As a current Marquette student (and longtime reader, first time poster) I’m not too thrilled with Mr. Wiesmuller’s lawsuit. Ultimately though, I believe it will fail.
Unlike the practice of medicine, where an appendix is in the same place in Los Angeles as it is in Jacksonville Fl, the practice of law is a regional matter.
Obviously the state law discriminates between in state and out of state students. The ultimate question is whether the diploma privilege is necessary to achieve or is the least restrictive means in achieving a legitimate local interest. This is where statistics would come in. I know Marquette strives to teach the relevant Wisconsin law in nearly all of its courses and every class I have taken has included Wisconsin Law.
I believe that Mr. Wiesmueller’s suit will ultimately fail because it would call into question too many other necessary state certifications and licenses.
Sarah Waldeck - June 22, 2008 at 5:02 pm
Unless I’m missing a twist (always a possibility), I think it extremely unlikely that a victory in this lawsuit will lead to an expansion of Wisconsin’s diploma privilege. The federal court can hold that Wisconsin must treat in- and out-of state graduates identically, but it cannot dictate what is necessary to practice law in Wisconsin.
If Wisconsin’s privilege is unconstitutional, I can’t imagine it will remedy the discrimination by making the privilege available to all graduates of ABA-accredited law schools. One justification for the privilege is that Wisconsin can monitor what is happening at its two law schools. Another and much more important justification is tipped up by Mr. Shanahan’s comment: Madison and Marquette tend to provide substantial coverage of Wisconsin law, particularly in “bar” courses.
If unconstitutional discrimination exists, Wisconsin is likely to remedy it by making all new graduates take the bar.
Chris Wiesmueller - June 24, 2008 at 6:54 pm
Since the lawsuit challenges the words “in this state” as used to limit the diploma privilege to Wisconsin law school graduates, a victory here would open the diploma privilege to everyone in the class, untilt he Wis. Supreme Court modifies the rules to be constitutional. (What the Wis. Supreme Court choses to do after we win is up to them, but since the diploma privilege is so important to Wisconsin, I am sure they will not end the diploma privilege.)
By the way, for all of you harping on the necessity of “Wisconsin” legal knowledge to practice law in Wisconsin, consider this:
1. You can still qualify for diploma privilege if you transfer into MU or UW from outside the state, even though half your “required courses” for the diploma privlege would come from out of state.
2. More than 60% of the Wisconsin bar exam doesn’t cover any Wisconsin specific laws and the law assumed to apply for the mutlistate bar exam is contrary to Wisconsin law in two out of its six subjects, namely, Torts and Criminal Law.
Chris Wiesmueller - June 24, 2008 at 6:54 pm
Since the lawsuit challenges the words “in this state” as used to limit the diploma privilege to Wisconsin law school graduates, a victory here would open the diploma privilege to everyone in the class, untilt he Wis. Supreme Court modifies the rules to be constitutional. (What the Wis. Supreme Court choses to do after we win is up to them, but since the diploma privilege is so important to Wisconsin, I am sure they will not end the diploma privilege.)
By the way, for all of you harping on the necessity of “Wisconsin” legal knowledge to practice law in Wisconsin, consider this:
1. You can still qualify for diploma privilege if you transfer into MU or UW from outside the state, even though half your “required courses” for the diploma privlege would come from out of state.
2. More than 60% of the Wisconsin bar exam doesn’t cover any Wisconsin specific laws and the law assumed to apply for the mutlistate bar exam is contrary to Wisconsin law in two out of its six subjects, namely, Torts and Criminal Law.
Eric - August 7, 2008 at 3:25 pm
As a former teacher, I see the licensure requirements for a teaching certificate in different states to be analagous to Wisconsin’s choice to have the diploma privilege. In one state I taught in, if you were an out-of-state licensed teacher, you had to take an exam before teaching in that state. If you had graduated from one of that state’s accredited teaching programs, you did not have to take the exam. (And English and math don’t change from state to state as statutes do.) It seems that this is the same as having a diploma privilege for in-state students and requiring testing of out-of-state students. If this lawsuit is successful it could have repurcussions for many other areas of state licensure. I would not want to encourage the federal government to use its commerce power to step into this area and regulate state’s rights to license certain professions.
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