[blindlaw] Lawsuit challenges policy that lets some grads skip bar exam, Milwaukee Journal Sentinel, July 12, 1009

[Nightingale, Noel]

Not blindness-related, but I thought some on this list might find this article of interest given discussions about problems with taking bar exams in some states.

Link:
http://www.jsonline.com/news/education/50497957.html

Text:
Lawsuit challenges policy that lets some grads skip bar exam
By Erica Perez of the Journal Sentinel
July 12, 2009

A federal appeals court has revived a class-action lawsuit that challenges Wisconsin's diploma privilege, a one-of-a-kind policy that allows graduates of the state's law schools to practice law here without taking the bar exam.

U.S. 7th Circuit Court of Appeals Judge Richard A. Posner's decision raised several questions about the state practice - causing Wisconsin law schools to prepare evidence as the case goes forward.

The plaintiffs, graduates of Oklahoma City University School of Law, argued the policy violates the commerce clause of the Constitution by discriminating against graduates of out-of-state law schools. They said the state should extend the diploma privilege to graduates of these schools. Their suit named the Wisconsin Board of Bar Examiners and the Wisconsin Supreme Court.

Graduates of accredited law schools in states other than Wisconsin who would like to practice law here have to either pass the Wisconsin bar exam or have practiced law for five years in another state.

The case initially was dismissed in 2007 by U.S. District Judge John C. Shabaz, who said the diploma privilege does not discriminate because everyone who did not graduate from a Wisconsin law school has to take the bar - state residents and non-residents alike.

But the appeals court on Thursday ruled the case was dismissed prematurely and should be sent back to district court so that plaintiffs can try to prove their case.

Posner said it's possible Marquette University and University of Wisconsin law schools offer no more training on Wisconsin law than do schools in other states.

If that's true, Posner wrote, the diploma privilege creates an arbitrary distinction between graduates of the Wisconsin schools and other schools. He wrote that such a division could burden interstate commerce by affecting aspiring lawyers' decisions about where to study.

Posner also noted that the state's bar exam does not test takers' knowledge of Wisconsin law solely; the exam includes two multi-state tests.

The plaintiffs' attorney, Christopher Wiesmueller, said the court's decision made him hopeful that, at the very least, the bar exam might be cut back significantly for out-of-state law graduates.

"I would be more than happy to settle for a reduced and more frequent version of the bar exam," he said. "As much as 75% of the test doesn't test Wisconsin law anyway." Under current rules, applicants who fail the exam have to wait several months before they can take it again.

State native filed suit
Wiesmueller, a Milwaukee native, originally filed suit as a student at Oklahoma City University School of Law. While the matter was on appeal, Wiesmueller passed the Wisconsin bar exam.

The appeals court ruled in 2008 that Shabaz should have certified the case as a class-action lawsuit. Once the district court made the case a class-action, it went back before the court of appeals with two new plaintiffs who had not yet passed the bar exam at the time - Wiesmueller's wife, Corinne, and a friend, Heather Devan.

Christopher Wiesmueller is concerned about the hardship that out-of-state law school graduates have to endure to practice law in Wisconsin. After graduation, Wiesmueller paid thousands of dollars for a bar exam preparation class, spent months studying and had to get a part-time job to support himself until he landed a job with a firm in November.

He is not trying to end the diploma privilege, he said.

"I would hope they wouldn't impose a bar exam on everybody, because then we're right back at square one," he said

UW Law School Dean Kenneth Davis said the school is putting together a systematic determination of whether Wisconsin law makes up a greater part of the curriculum at UW than it does in other states.

While most classes are not designated as addressing Wisconsin law, it's common practice among UW faculty to teach students how Wisconsin law differs from other states, Davis said.

"By and large, to teach general legal principles is to teach Wisconsin law," he said. "There are areas where Wisconsin takes a unique approach, and...I think the practice of most faculty is to say, 'Here's the general rule, but here's the way Wisconsin treats it.'"

Marquette University Law School Dean Joseph Kearney wrote on his blog Thursday that he believes the privilege will pass constitutional muster.

"Marquette Law School has sought to ensure - because of the diploma privilege - that our students are especially introduced to the law and legal profession of Wisconsin," he wrote.

Kevin St. John, a spokesman for the state Department of Justice, which is defending the lawsuit, said the agency plans to gather documentation to show that the 140-year-old diploma privilege is appropriate and lawful.

"We certainly remain confident that Wisconsin's laws will be upheld," he said. "The Wisconsin system does not run afoul of any non-discrimination provisions of the Constitution."