Wisconsin’s diploma privilege for graduates of the law schools at Marquette University and the University of Wisconsin may be in danger, at least if the Seventh Circuit reviews the merits of the privilege.

Two of the judges at oral argument on Tuesday called the state’s justification for the privilege “fiction.”

Christopher L. Wiesmueller, a graduate of Oklahoma City University Law School, and an attorney with Kuchler & Cotton Law Offices in Waukesha, is challenging the privilege as a violation of the dormant commerce clause, by treating the in-state law schools and their graduates more favorably than those from out-of-state.

Curriculum

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.

Lattis explained that there was no opportunity to develop a record to support the contention, because the case was decided on a motion to dismiss.

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.”

The third judge on the panel, Judge Kenneth F. Ripple, also said he didn’t believe Wisconsin law schools teach law any differently, asking “How is the curriculum different from any other national school?”

Given the state of the record, Lattis could only cite her own experience as a student at the University of Wisconsin Law School.

Ripple also challenged the state’s motivation for the privilege as economic protectionism: “This is keeping the guild small.”

Later, Ripple asked Lattis, “Hasn’t our discussion made clear that this case can’t be decided on the pleadings?”

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.

Noting that the cost for out-of-state students to apply for admission is twice as much, and that students typically take a bar exam prep course, Wood said, “These are not imaginary expenses.” Posner called the added costs “significant.”

Standing

The only other issue addressed during the oral argument was standing.

Lattis asserted that any law school in the country could apply to the Wisconsin Supreme Court for the diploma privilege, but none has ever done so.

During Wiesmueller's turn at the podium, the court focused almost entirely on the issue of standing to pursue his claim.

Judge Wood raised two issues immediately that dominated the argument: (1) whether graduates have standing or whether it is the out-of-state law schools themselves who have standing to challenge the privilege; and (2) whether the court can order a meaningful remedy.

Wiesmueller conceded that the basis of the discrimination is where the graduate attended law school, rather than the residence of graduates, but argued that the real victims of the discrimination are the graduates themselves.

In support, Wiesmueller cited the U.S. Supreme Court opinion in Camps Newfound/Owatonna v. Town of Harrison, Maine, 520 U.S. 564 (1997). In Camps Newfound, an in-state camp challenged a tax levied against it for catering to predominately out-of-state campers.

Wiesmueller cited language in the opinion suggesting that, because the tax is ultimately passed on to the campers, they are the injured parties.

Raising the issue of remediation, Judges Ripple and Wood suggested that, rather than extending the diploma privilege to out-of-state students, it is far more likely that the state would simply make everyone take the bar exam.

Asked if that would be an acceptable remedy, Wiesmueller said it would be, because it would end the discrimination.

Wiesmueller also questioned the court’s assumptions about Wisconsin’s likely response should he prevail, noting the state’s commitment to maintaining the privilege, long after every other state in the union abandoned similar privileges for their state law schools.

In an interview after the oral argument, Wiesmueller said he was cautiously optimistic about prevailing and thought it generally went well. Wiesmueller said he would like the court to find the privilege facially unconstitutional, but acknowledged that there may be factual issues that need to be developed on remand.

Department of Justice spokesman William Cosh had no comment on the Wisconsin content of the law schools, but said that the DOJ would make decisions how to litigate the rest of the case, based on what the court decides.

Wisconsin Law

However, should the case be remanded, Marquette University Law School Dean Joseph D. Kearney said he is confident that the state could show that Marquette does teach Wisconsin law.

“Our curriculum is unusually attentive to seeing that students do get educated in Wisconsin law, because we know that, due to the diploma privilege, most of our students will become Wisconsin attorneys,” Kearney said.

“Whether it is my advanced civil procedure course, or a first-year torts class, or any number of other classes,” Kearney continued, “we are quite attentive to Wisconsin law in these areas, because of the diploma privilege.”

Kearney questioned the court’s focus on this issue, stating that, under dormant commerce clause analysis, the privilege should be upheld, even if the state’s law schools pay no particular attention to Wisconsin law.

But he said that, if that is the issue, he is confident that the state can demonstrate that Marquette’s curriculum does offer education in Wisconsin law to justify the privilege.

The dean of the University of Wisconsin Law School, Kenneth B. Davis, also said that its curriculum did teach Wisconsin law.

Like other law schools, the University of Wisconsin teaches basic legal principles. However, Davis said that, where Wisconsin has a specific rule or unique features, professors will point those out.

Both Kearney and Davis also noted that students learn Wisconsin law in the course of clinical programs.

The case is Wiesmueller v. Kosobucki, No. 08-2527 (PDF).