April 10, 2009

Judges Posner and Wood don't think much of Wisconsin's diploma privilege.

Uh oh!
Defending the privilege in her brief to the court, Assistant Attorney General Jennifer Sloan Lattis asserted that the privilege is justifiable because it is an “undisputed fact that only Wisconsin law schools systematically instruct in Wisconsin law.” Brief of Defendants-Appellees, at 35.

However, Judge Richard Posner immediately pounced on the assertion as being unsupported by the record....

Stating that he doubted there is any Wisconsin content taught in Wisconsin law schools, Posner observed, “They use standard casebooks, which are national.”

Later, he called the contention that there is such content “a complete fiction,” and bluntly said, “I don’t believe you. I don’t believe the courses are any different from those in Indiana or Illinois.”

Judge Diane Wood also said, “It is totally fictional that students learn Wisconsin law at Marquette or Wisconsin any more than they would learn in North Dakota or Oklahoma.”

Posner even questioned whether the privilege could be upheld, assuming it could survive a commerce clause challenge, suggesting that it could be struck down on equal protection grounds as “completely arbitrary.”

Wood and Posner also both challenged the state’s defense that the burdens of taking the bar exam are too “incidental” to violate the commerce clause.


rhhardin said...

What does it mean if a law school loses in federal court?

Synova said...

So... is Wisconsin state law and constitution taught in Wisconsin law schools?

You didn't say.

And you should know.

traditionalguy said...

The free pass for locals and a testing burden put only on all out of state graduates is an issue of fair competition between the Big Businesses we call Universities. Since this is accomplished by legislation of the state of wisconsin, it is a clear violation of the commerce clause.Notre Dame, for example, cannot offer a degree that includes a Wisconsin law license at no extra cost or effort. For example the State of Georgia cannot put a burden on non-Georgia owned Airlines to use Atlanta Airport and waive that burden on Delta, because that acts as a Tariff on out of state providers of Airline Services. No emanations from penumbras needed here. It's in the Document itself.Wisconsin should just say thank you for everyone overlooking their violations for 100 years. Come to think of it ONLY non-Georgians need to first prove that they are good golfers before we allow them to attend the Masters Golf Tournament.

Cedarford said...

rhhardin said...
What does it mean if a law school loses in federal court?

Yale Law School recently went into court arguing they could keep the ROTC ban AND have the Solomon Amendment nullified because they argued Congress violated equal protection about the gay agenda and even before the gays became the excuse, they had a ban because ROTC "made war criminals" - and that predated Solomon.

The Appeals court spanked Yale Law all the way back to their New Haven ghetto

Doug H. said...

With all due respect to Judge Posner, he simply doesn't know what he's talking about. I'm a 2L at Marquette, and I can tell you a lot of time is spent covering both Wisconsin case law and statutes.

In fact, I've had classes that spent a majority of the time covering Wisconsin law. Even in classes like securities regulation we spent some time on Wisconsin law.

Mary Ann said...

If WI law is not taught, I'm not sure why my copies of the Wisconsin Statutes got so marked up while I was in Prof. Dickey's Crim Law classes.

Daryl said...

Unfortunately, Posner is wrong.

Law students in Wisconsin are forced to read all sorts of stupid cases that only apply to Wisconsin, instead of picking up the same shared knowledge that law students around the country have in common.

That is just one more reason why non-Wisconsinites should avoid Wisconsin at all costs. The primary reason is that people there are rude, insular, passive-aggressive hillbillies.

John K. said...

EVERY state's bar exam is protectionist. Wisconsin's diploma privilege would seem to be, if anything, the reverse of protectionist, encouraging graduates to stay in Wisconsin (although I hope the real motivation is simply relieving graduates from having to jump through an artificial and wasteful hoop) rather than discouraging out-of-state graduates from coming in. Is that so bad? Is it bad or unconstitutional for a state, e.g., to keep taxes low in hopes of attracting and retaining residents and business? As a person who graduated from UW Law but then wound up having to take the Indiana Bar Exam when I moved back here, the inconvenience of having to take a bar exam (while certainly significant) would not have been enough to affect my decision as to where I would live and practice. But I suppose that, all other things being equal, the diploma privilege conceivably could be deciding factor for a Wisconsin grad choosing between a Wisconsin law job and an out-of-state law job.

I'm not too fond of what initially appeared to be the plaintiff's effort to ruin a good thing for others, but I softened a little bit when I saw that according to the linked article he suggested that Wisconsin was likely to respond to a judicial finding of discrimination by extending the diploma privilege to other (out-of-state) law schools rather than by requiring everyone to take a bar exam. That'd be a good thing.

zedzded said...

Daryl, you really shouldn't bottle all that emotion up - let it out - tell us how you really feel!

jmm43 said...

Taking the bar was the worst experience of my life. I passed, but the bar exam with the stomach flu is not a pleasant experience. Those sitting next to me weren't pleased either.

Zeb Quinn said...

Bar exams are a good thing. I found the whole process invaluable. The BAR/BRI bar review, studying for the exam, and the taking of the exam, all pulled that amorphous body of information together and organized it in my head in a highly meaningful way.

Lem said...
This comment has been removed by the author.
Jeffrey said...

Summer is just around the corner, even in the Midwest:

Greetings from Iowa!


Tom said...

What is your opinion Professor?

- Does the libertarian in you think all bar exams are an affront to freedom?

- Does the Wisconsin professor in you want to preserve the privilege?

David said...

Another example of things nobody thought to worry about for decades becoming (literally) a federal case.

It's not going to help the plaintiff, who will still have to take and pass the bar exam. Or would Wisconsin really give everyone a diploma privilege, as one commenter suggested? Seems unlikely to me.

In South Carolina, where I now live, I can't be admitted to practice without taking the bar exam, even though I practiced law for 35 years in Wisconsin and Illinois. Is there some theory on which I could challenge this? (Equal protection seems out, but what do I know. The Constitution has changed a lot since I went to law school.) Might it not be easier to just take the bar exam? Yeah, but then I might be tempted to practice law again. The South Carolina lawyers can rest easy. I won't be poaching their clients.

former law student said...

Wisconsin has what? Two law schools? The Wis. state bar can supervise what is taught there and keep track of the performance of the graduates.

Besides, the big money is in Chicago.

JA said...

I took the MN bar and received the Diploma Privilege, and the Bar was a total waste of my time (I passed). It covered all the useless things I never needed to know. I can't imagine anything more useless to determine if someone is qualified to be an attorney.

Klimbsac said...

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Bissage said...

I understand you folks in Madison drink a lot of lattes. Where’s the milk come from anyways?

* wakes up *

Huh? What am I doing here sitting at the computer?

Lotta Latte?

Lotsa Lattes?

Alotta Lahtty?

Cartoon characters!

Huckleberry Hound?

Tex Ritter???!!!

* rubs eyes *

ZzzzzzzzzZ//ZZZzqsq,,,, , , ZAZzzzzzzzzzzzz /… . ..

* snort . . .*

An Edjamikated Redneck said...

What is more reflective of the actual practice of law; Law School; the Bar Exam or spending 4 years as a paralegal in a general practice firm?

Then why have a law school or a bar exam?

traditionalguy said...

Bar exams are a necessary part of the requirement for holding a liscense to practice so that it will not be as easy to obtain as a driver's license. That does two things: (1) It empowers the Government that can take away a valuable priviledge when abused thus regulating conduct and (2)It restricts the numbers in the Trade Guild to keep incomes high. (Maybe the idea is that no one will risk stealing when they can make good money honestly). Those seem like good reasons to restrain trade to me, but in the harsh light of day it certainly is a restraint on commerce for big money commercial institutions that "teach law" for a price to a select group. That should not be designed to favor the Local institutions over those located in the 49 other States. Lincoln and Sherman beat down the the States Rights crowd once and for all around here. We have monuments to brave dead Wisconsin men all over Georgia erected by surviving Wisconson veterans of those battles they came down here to fight in just to enforce that meddlesome Constitution thingie that now favors the Federal power over local customs even when any State wants to do things their own way.You won, you know.

jmm43 said...

I have to agree with JA. The bar is a waste of time. Tests on areas of law that you never practice. I think the diploma privilege is a great thing, and i wish my state had it.

Ciarand Denlane said...

Wow, what a great opportunity to second guess both sides and the judges.

For the plaintiff: what are you thinking?! 1. As the court's questions seem to make clear, probably if you "win," the state revokes diploma privilege for everyone rather than extending it to you and other out-of-state grads, and you get to spend the rest of your career working with folks who remember you (your last name is memorable for the front end of the v.) as the guy who made them take the bar exam. 2. You might not even have standing (though I tend to think you do). 3. If the commenters here are at all close to being right, you may well lose on the merits, even if you get past the appeal on the motion to dismiss.
To the defendant: Why do public agency defendants so often reflexively file a motion to dismiss just because they can? At least with my 20-20 hindsight, it looks like def would have been much better off had it just filed an answer and moved for SJ. Discovery isn't always the defendant's enemy. (I don't mean to be too critical, as I've worked in a similar office and I realize why these things happen).
3. To the judges, hey, it's an appeal on a motion to dismiss. You wanna accept the facts as pled, go ahead, but isn't it gratuitous to tell the state's attorney you don't believe her (as opposed to telling her that on the state of the record . . . )

MadisonMan said...

Well, if Wisconsin law is taught at Wisconsin Law schools -- I assume it is and that the judges are wrong -- why didn't the attorney produce syllabi, etc., to show the Wisconsin-centric content? Are they afraid to tell a Judge that they don't know something?

former law student said...

Why do public agency defendants so often reflexively file a motion to dismiss just because they can?

Because litigation costs money. As Barney Fife famously said, "You've got to nip it. Nip it in the bud."

Another question: What is more reflective of the actual practice of medicine; Medical School; the USMLE; or spending 4 years as a operating room nurse?

gary said...

Shouldn't Posner recuse himself from this case, seeing as how he is a law prof at a competing school?

Daryl said...

I would like to apologize for my previous post. I wrote it in haste and said something that I would like to take back.

Specifically, I wrote that J. Posner was "wrong." However, J. Posner only said that the allegations were unsupported by the record, which is true, even if the underlying facts alleged are also true.

Thank you for allowing me to set the record straight.

Bob From Ohio said...

"paralegal in a general practice firm"

paralegals are the spawn of Satan, pure evil in human form

so they should not be allowed to become lawyers

former law student said...

Posner's question must bump up against the idea, "Why is there not a national bar exam?" As long as states determine the qualifications to practice law, they can waive the bar exam for graduates of their state's schools.

mcg said...

" However, J. Posner only said that the allegations were unsupported by the record, which is true, even if the underlying facts alleged are also true.

Actually, he said more than that, if you read paragraph 4 of Althouse's post. So actually your initial claim that he was "wrong" is fair.

Seven Machos said...

What's the federal issue here?

The Commerce Clause isn't some majoritarian mechanism. It's a law that allows the federal government to act broadly and trump state law. In the absence of federal action, the Commerce Clause is dead to the states.

I'm disappointed in Posner.

Ann Althouse said...

"In the absence of federal action, the Commerce Clause is dead to the states."

There's the dormant commerce clause. Should the special privilege to graduates of the 2 Wisconsin law schools be regarded as a discrimination against interstate commerce?

Seven Machos said...

Now we are getting into the territory of that absurd farmer with the chickens case, I guess. Much like Keynesian economics, I never understood it as anything more than a federal power grab, and I don't agree with it.

Christopher said...

I always find it amusing how lawyers who didn't have to take a bar exam can be so hypocritically upset that someone else doesn't want to take a bar exam either.

I think the argument that everyone will have to take the bar exam is ridiculous. First, you could argue in every dormant commerce clause case that the state would simply be free to impose the burden, rather than the benefit. Secondly, the practice in Wisconsin has been to extend the benefit in DCC cases, as the Wisconsin Supreme Court held in Burlington Northern.

There will be some releif out of this lawsuit. Even if Wisconsin law school teach Wisconsin law and even if Wisconsin law is a requisite to being admitted to the Wisconsin bar, then WHY DID I HAVE TO TAKE THE MULTISTATE BAR EXAM TO BE ADMITTED IN WISCONSIN? Why don't Marquette and UW Students also have to take the MBE?

former law student said...

Should the special privilege to graduates of the 2 Wisconsin law schools be regarded as a discrimination against interstate commerce?

When other states accept even the applications to take the bar from graduates of California's non-ABA law schools, then we can talk about discrimination against interstate commerce.

Whatever happened to the antitrust lawsuit against the ABA, anyways?

former law student said...

WHY DID I HAVE TO TAKE THE MULTISTATE BAR EXAM TO BE ADMITTED IN WISCONSIN? Why don't Marquette and UW Students also have to take the MBE?

Any Madison/Marquette grad is intimately familiar with the recording priorities of mortgage loans in race-notice jurisdictions.

An Edjamikated Redneck said...

Another question: What is more reflective of the actual practice of medicine; Medical School; the USMLE; or spending 4 years as a operating room nurse?

Well, since Medical school is more like 7 years plus a residentcy, and since an operating room nirse would have a more spcialized training, rather than a broad base, I fail to see the analogy.

Now if you took a nurse working for say 7-9 years for a general practice doctor, that would be a fairer comparison.

Seven Machos said...

Medical school is unquestionably most reflective of the actual practice of medicine because medical school teaches people how to be doctors through an intense apprenticeship of substantial breadth and long duration.


brian said...

Just another reason to dump dull, expensive, inflexible and jurisdiction neutral case books in print. Instead, use open source legal research sites that place primary authority in the hands of the researcher for free -- teach your students to find the law online, free! DIY - DO IT YOURSELF and suddenly you've got a flexible, renewable resource that accommodates jurisdiction specific nuance. Moreover, you become the most popular professor in law school instantly -- no more $100 dollar + casebooks! [see http://justcrim.typepad.com for an example of typepad architecture used to build free, open access casebook]

Ben Masel said...

Does the Special Privilege extend to holders of Honorary Degrees from Wisconsin's Law Schools?

Is this the year I'm to be awarded such an Honorary Degree?