Diploma Privilege in Wisconsin: Requirements and Historical Context
In the United States, the diploma privilege offers a pathway for law school graduates to be admitted to the bar and authorized to practice law without having to pass a bar examination. Wisconsin stands out as one of the few states that maintain this practice, with specific requirements and a historical basis rooted in the state's legal education system.
Origins and Evolution of Diploma Privilege
Diploma privilege emerged alongside the rise of law schools in the United States. Before the 1870s, most aspiring lawyers trained through apprenticeships under a lawyer or a judge, a practice called "reading law". In the 1870s, law schools began to emerge across the country as an alternative form of legal education. To incentivize aspiring lawyers to attend law schools, many states offered "diploma privilege" to graduates of law schools, wherein they would receive automatic admission to the bar.
However, the prevalence of diploma privilege declined in favor of formal, written bar examinations from the late 1910s onward. The privilege was abolished in California in 1917. In 1921, the American Bar Association formally expressed opposition to diploma privilege.
Wisconsin's Diploma Privilege: A Historical Perspective
Wisconsin's diploma privilege dates back to 1870, when the Wisconsin State Legislature passed legislation that established the University of Wisconsin Law School. The 1870 law provided that graduates of this department should be entitled to admission to the bar upon their certificate of graduation-that is, their law degree.
Currently, in Wisconsin, J.D. graduates of the two American Bar Association-accredited law schools in the state, Marquette University Law School and the University of Wisconsin Law School, may seek admission to the State Bar of Wisconsin without having to sit for a bar examination.
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Requirements and Limitations
The diploma privilege in Wisconsin is not universally applicable. Graduates of out-of-state law schools, even if they are Wisconsin residents, must still take the Wisconsin bar exam to be admitted in Wisconsin. Likewise, graduates of Wisconsin law schools must take the bar exam in many other states in which they are going to practice. states do not grant reciprocal admission for attorneys who obtained their bar admission through the diploma privilege, requiring those attorneys to take that state's bar exam, regardless of the length of that attorney's practice.
Policy Considerations
Several policy considerations underpin Wisconsin's continued use of diploma privilege. One rationale is to incentivize Wisconsin residents to attend in-state law schools and to keep Wisconsin residents working in-state. Another policy consideration is preventing "brain drain" in Wisconsin. This theory holds that without the diploma privilege, the smartest from the state will leave Wisconsin for their education or for their career, specifically to nearby Chicago (the Iowa Bar Association cited similar territorial concerns). Another advantage is that state of Wisconsin subsidizes in-state resident tuition for law students, and therefore incentivizes them to stay to retain the state's educational investment.
Legal Challenges
The diploma privilege has faced legal challenges. In Wiesmueller v. Kosobucki, a class action lawsuit certified in the United States District Court for the Western District of Wisconsin in June 2008, the petitioners asserted that the state's policy discriminates against interstate commerce in violation of the Commerce Clause because it affords a diploma privilege in lieu of a bar examination only to lawyers graduating from Wisconsin's law schools. The suit sought injunctive relief to expand the privilege to all applicants to the Wisconsin Bar who obtain a J.D. from any law school accredited by the American Bar Association. The district court subsequently dismissed the case for failure to state a cause of action.
Diploma Privilege and the COVID-19 Pandemic
There has been a renewed interest in diploma privilege as an alternative to the bar examination, which is generally administered in large conference rooms and auditoriums every July and February, in light of the COVID-19 pandemic. On March 27, New York became the first state to announce the postponement of its July 2020 bar examination as a result of the COVID-19 pandemic. Several states and territories followed suit by postponing their exams to August, September, or October, while others looked for alternative options to an in-person examination, including remote examinations or offering diploma privilege to qualified individuals. On April 21, Utah became the first state to grant temporary, emergency diploma privilege during the COVID-19 pandemic. Since then, Washington, Oregon, Louisiana, and the District of Columbia have all instituted temporary diploma privilege policies. However, some Washington legal employers have told recent graduates that they will not recognize diploma privilege and want them to sit for the test regardless. In the District of Columbia, candidates who choose the diploma privilege option rather than taking the bar examination must be supervised for three years by a qualified attorney admitted to the D.C.
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