Amend, don’t end, the diploma privilege

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The question of whether Wisconsin’s diploma privilege violates the dormant Commerce Clause by discriminating against out-of-state law students and law schools is back before the district court.

The issue the court must decide, on remand from the Seventh Circuit, is whether legal instruction at the University of Wisconsin and Marquette provides sufficient education in Wisconsin law, as opposed to general legal principles, to justify the privilege.

I have no personal knowledge of that, but having attended law school at William & Mary in Virginia, I have a suggestion based on my experiences there that is better than either dropping the privilege altogether or keeping it as is.

William & Mary offered a course taught not by a member of the faculty, but by a respected trial court judge, entitled Virginia Procedure. Looking at the curriculum for this fall, I see that a course entitled “Virginia Criminal Procedure” is offered.

The word on the street when I was in law school was that, if you hoped to pass the Virginia bar exam, you had better take Virginia Procedure. So a new lawyer practicing in Virginia had not only taken a course in the procedural rules that apply in Virginia courts, but passed the state bar exam.

Looking at the curriculum at George Mason’s law school, I see a course called Virginia Practice that covers both civil and criminal law in Virginia, and another called Virginia Remedies.

However, looking at the curricula of both Wisconsin and Marquette, I can find no course entitled Wisconsin Procedure or Wisconsin Practice. But you can take a course at Wisconsin entitled “Law and Modernization in the Developing World,” whatever that means.

If a course in Wisconsin Practice were to be offered, and made a prerequisite for receiving the diploma privilege, Wisconsin could easily defend the privilege against any constitutional attack.

It would also be a benefit to all involved. Surely, new Wisconsin attorneys would benefit more from taking such a course than yet another seminar in Critical Legal Studies. Surely, parties in Wisconsin’s courts would benefit from representation by attorneys who have taken such a course.

And surely, Wisconsin’s judges would be thrilled to have new attorneys appearing before them who know the rules of the court.

As someone who has spent my entire life either practicing law in Wisconsin courts or studying Wisconsin court opinions, I can attest there is a great deal to learn if one doesn’t want to commit malpractice. Any judge or experienced practitioner in this state could easily spend three hours per week for a semester teaching students the vagaries of Wisconsin Civil Procedure.

And yet, I’ve heard no discussion of this option — only whether the diploma privilege should be kept or eliminated entirely. This middle option would benefit everyone.

The only losers would be the law schools, who might have to eliminate a course or two in Critical Legal Studies to make room for Wisconsin Practice in their curricula. The horror!