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Diploma privilege back to trial court

By: dmc-admin//July 13, 2009//

Diploma privilege back to trial court

By: dmc-admin//July 13, 2009//

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The Seventh Circuit on Thursday reversed the district court’s decision to dismiss a challenge to Wisconsin’s diploma privilege brought by an attorney who graduated from an out-of-state law school.

The court rejected the state’s argument that the study of law at a Wisconsin law school is a reasonable substitute for passing the bar exam.

Given the procedural history of the case -– dismissal on the pleadings -– the court found an “evidentiary vacuum” that prevented it from deciding whether that contention by the state is true.

If Wisconsin law is no greater part of the curriculum of Marquette and Wisconsin than at other national law schools, the court said the diploma privilege would create an arbitrary distinction that burdens interstate commerce.

Judge Richard Posner wrote for the court, “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.”

Posner noted that, during oral arguments, the attorney for the state acknowledged that nothing in the record supported the contention that Wisconsin law occupies a larger place in the curriculum than in out-of-state schools.

“[S]o far as we can judge from the present record, the Wisconsin law schools include no more Wisconsin law in their curriculum than the law schools of Illinois do,” Posner wrote.

Accordingly, the court held the suit was dismissed prematurely, and remanded it for further proceedings, without expressing any view on the ultimate outcome.

Attorney Christopher Weismueller, who initially brought the suit, but substituted other plaintiffs after passing the bar, said he is pleased with the result.

“It’s a good decision. I think it’s right on,” Weismueller said.

However, Weismueller said he may be moving for reconsideration. While the court reversed the grant of the state’s motion to dismiss, it did not address the district court’s denial of his motion for summary judgment.

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