Horwitz: A Skeptical Comment On The Wisconsin Diploma Privilege

Following up on last week's post, Using The Diploma Privilege To Reflect On What We Do And What We Ought To Do:  Paul Horwitz (Alabama), A Skeptical Comment on the Wisconsin Diploma Privilege:

Anent my previous post on using the Wisconsin diploma privilege to "reflect on what we do and what we ought to do" in legal education, I heard from Jason Yackee, who teaches at the University of Wisconsin's law school. My post featured a piece quoting Wisconsin lawyers and regulators discussing the privilege--a useful source of information to those of us who have discussed or invoked the privilege without first-hand experience. More information is better, and Prof. Yackee offers his own experience-based judgment, which is more skeptical than that of the people I quoted earlier. With his permission and my thanks, I offer his response below, with some comments following.

The Covid-19 pandemic has called into question the ability of states to safely administer in-person examinations for admittance to the bar. One potential solution, perhaps only temporary in nature, is to substitute some version of a “diploma privilege”, through which students who have graduated from certain law schools are granted permission to practice without taking a traditional bar exam. Recent posts on Prawfsblawg and on Paul Caron’s Taxprof Blog have suggested that Wisconsin’s long-standing diploma privilege regime might serve as a model. Wisconsin is, famously, the only state to allow graduates from in-state law schools (of which there are only two, at UW-Madison and Marquette University) to bypass the Wisconsin bar exam. That exam consists of the Multistate Bar Exam, which is developed by an organization based—note the irony—in Madison, Wisconsin. Graduates of all other law schools in the union, from Yale on down to Thomas Jefferson, must take and pass the test. This system has very occasionally and never successfully been challenged in federal court as impermissibly discriminatory (under dormant commerce clause or equal-protection logics) against students who have graduated from out-of-state law schools.

The recent blog commentary on Wisconsin’s diploma privilege suggests that the scheme is a potentially effective substitute for the traditional bar exam in terms of ensuring legal competency. Those evaluations, as best I can tell, rest upon a relatively naïve and uninformed sense of what—and how little—diploma privilege entails in Wisconsin. The privilege is contained in Wisconsin Supreme Court Rule 40.03 and is based upon a 1977 state statute. The Rule hasn’t been amended since its promulgation, and its requirements are meager. A beneficiary must have earned at least 84 credits in the course of his legal studies at UW or Marquette. (Both schools actually require 90 credits to graduate). “Not less than 60” of those credits must be earned in courses specified by course subject matter in the Rule; these so-called “60-credit-rule” courses must have “as their primary and direct purpose the study of rules and principles of substantive and procedural law as they may arise in the courts and administrative agencies of the United States and this state.” At least 30 of those credits must consist of “mandatory” subjects; the other 30 can be fulfilled through specified “electives”. The remaining credits (24) can consist of clinics, externships, law review or moot court service, or traditional courses the subjects of which are not listed in the Rule. ...

What is the function of the Diploma Privilege scheme? I don’t think it can seriously be argued that it is an effective guarantor of competence to practice law in the state. Rather, it largely serves to provide the in-state law schools with a competitive advantage in the market for law students who wish to practice in Wisconsin. ...

Would law deans and faculty actually want to live in a world of diploma privilege with teeth? That world would entail state supreme courts telling us what to teach, and, perhaps, how to teach it. Law professors, used to being the kings of their classrooms, would, I think, chafe and rebel under meaningful court supervision. Wisconsin’s Diploma Privilege is tolerated precisely because it requires so little of those who implement it.

In any event, my point is really not to criticize Wisconsin’s Diploma Privilege, or to argue against its temporary use in response to the Covid-19 pandemic. My point is rather to problematize the notion that something like it is a good substitute for the bar exam. Bar exams may be poor guarantors of legal competence, but so too is diploma privilege—at least as practiced in Wisconsin.

Again, I thank Prof. Yackee for his contribution. I am in no position to mediate between the views offered here and those offered by the lawyers quoted in the story to which I linked in my previous post on the subject. But both are useful, insofar as they focus at a ground level on what does and doesn't work with respect to the privilege and thus offer food for thought about whether and why it is or isn't useful, whether it can be scaled or not, what it would require to work properly, and what all this would or should mean for law schools. A few comments ...