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Saturday, May 16, 2020

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.

It is useful to examine how the “mandatory” (or, the “30-credit-rule”) courses are defined—as “regular law school courses in each of the following subject matter areas: constitutional law, contracts, criminal law and procedure, evidence, jurisdiction of courts, ethics and legal responsibilities of the legal profession, pleading and practice, real property, torts, and wills and estates.” That’s it. The Rule says nothing about what exactly these courses need to contain, how they must be taught, or, even, how many credits must be allotted to each “mandatory” subject (as long as the total equals 30). They do not prescribe a level of mastery. At UW, by law school rule, students must obtain a weighted average grade of 2.0 in the Diploma Privilege classes in order to be eligible for the privilege. An average grade of 2.0 is quite a low barrier, one breached by only the dullest or unluckiest of students.

The “elective” courses required for Diploma Privilege are defined just as broadly, through a list peppered with pedagogical anachronisms: “damages”; “equity”; “future interests”; “quasi-contracts”; “trade regulation”—among more standard fare, such as “conflict of laws” and “torts”. Again, no guidance as to content or scope of coverage is provided.

The lack of detail leads to unprincipled variation in curricular content, across professors, across time, across institutions. For many years UW applied the Rule to require four credits of trusts and estates. In recent years, due to staffing shortages, the requirement was halved to two credits. UW interprets the Rule’s “criminal law and procedure” as requiring separate courses in criminal substantive law and, secondly, in criminal procedure, for a total of seven credits. Marquette deems the requirement fulfilled through the normal four-credit 1L criminal law course, which, of course, contains some—but not much—criminal procedure. UW requires two constitutional-law courses (six credits total); Marquette only requires one course.

Note that there is nothing in the Rule requiring the coursework to privilege Wisconsin law. Professors at UW and Marquette are free to use any course materials they wish, within only the loosest bounds of professionalism. They are free to design a course that focuses heavily on Wisconsin law, or moderately, or not at all. They are free to focus on the “law in the books” or on the “law in action”.  They are free to use any of the standard casebooks available from national publishers like Westlaw or Lexis/Nexis. They are free to design their own idiosyncratic content. The Rule simply does not address in the slightest the mandatory content of “mandatory” and “elective” classes, apart from the titles, and in practice the deans of both UW and Marquette leave faculty more or less entirely free to design their Diploma Privilege courses as they wish. This means, for example, that the “mandatory” constitutional law course need not (and typically will not) have any content on Wisconsin constitutional law. The mandatory contracts course will probably address Wisconsin contract law only accidentally though the one or two Wisconsin cases—like Hoffman v. Red Owl Stores—that have become part of the 1L contracts canon.

In litigation, the temptation is to defend Diploma Privilege by claiming that the scheme’s discrimination against out-of-state law graduates is justified by the Wisconsin Supreme Court’s ability to oversee the rigor and relevance of the curriculum of in-state, but not of out-of-state, law schools. In fact, the Wisconsin Supreme Court plays virtually no active oversight role whatsoever. As I noted above, the Rule’s text hasn’t been updated in decades, and the Court shows no interest, at all, in meaningfully reviewing, let alone in dictating, the actual content of the Diploma Privilege courses that the Wisconsin law schools routinely certify as meeting the Rule’s requirements. The result is that the Diploma Privilege curriculum, as actually taught, on the whole probably varies little from the curriculum taught at any other quality law school in the country.

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. A student from La Crosse who wants to practice in his hometown and who has offers from Marquette and from the University of Minnesota will have to think long and hard about whether going to the better-ranked school is worth it when going to Marquette will save him the hassle, cost, and uncertainty of the bar exam. It is no wonder that the Wisconsin law schools advertise Diploma Privilege as a benefit of attending their schools. It is a substantial one, especially as prospective law students tend to view the bar exam with unreasonable dread.

Secondarily, we can view Diploma Privilege as encouraging the graduates of in-state schools to stay in state after they graduate. A UW graduate may be less likely to take a law job in Chicago over one in Madison if doing so means that he has to take and pass the Illinois bar exam. In that way, Diploma Privilege probably increases the supply of Wisconsin lawyers—good for Wisconsin’s consumers of legal services, but probably not so good for Wisconsin lawyer salaries.

Thirdly (but entirely unintentionally) it serves to boost the national prestige of Wisconsin’s law schools by inflating bar-passage statistics, a component of the USNWR rankings. Because of Diploma Privilege, which virtually every graduate obtains, UW routinely reports a 100% bar passage rate. Marquette’s isn’t far behind. (A corollary benefit for faculty is that we are freed from the potential drudgery of teaching bar-exam doctrine; since our students don’t take bar exams, we don’t need to teach to the test and can safely ignore, if we wish, black-letter rules in favor of more intellectually interesting questions of theory).

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:

1) No lawyer or law professor can be surprised by his suggestion that in practice the rules undergirding the privilege are not always applied in a stringent fashion or one that follows its assumed function and goals, or that it ends up serving guild or other interests rather than something more public-regarding. Any law professor or administrator who has watched his or her school working busily, in anticipation of an accreditation visit, to nominally retrofit or relabel existing courses so that they cosmetically reflect the ABA's supposed interest in "learning outcomes and assessment" and skills training will not be shocked by his suggestion that the 60-credit requirement ends up being defined in what we might call a generous fashion. Nor can anyone be shocked by the suggestion that in practice a rule often ends up serving guild purposes. There is a whole mandatory course, known as "Legal Ethics" or "Legal Profession," devoted in large measure to that topic. One can take due note of this without having to descend into complete cynicism. (Similarly, one can note without utter cynicism that even genuinely altruistic suggestions for reform of legal education and lawyer licensing can end up serving guild or interest-group or class interests first and the larger and more vulnerable population second.)

2) I'm not sure whether the guild analysis is complete. Yackee suggests that the result of the privilege is to increase "the supply of Wisconsin lawyers—good for Wisconsin’s consumers of legal services, but probably not so good for Wisconsin lawyer salaries." One would think a guild- or interest-based rule would result in artificial increases in lawyer salaries. More clearly needs to be said about which interests the rule as applied serves, on the assumption that it must serve some interest other than that of clients. But I do not view low lawyer salaries as a bad thing as such. (I would view it differently if those salaries were kept lower in order to keep the salaries or job security of Wisconsin law professors and bar officials higher, of course.)

3) Surely Yackee is right that if the bar were to actively police the diploma privilege and its requirements for Wisconsin law schools--if we were to see a "diploma privilege with teeth," as he calls it--law schools and their faculty would be unhappy. The idea that some rule is "tolerated precisely because it requires so little of those who implement it" applies to a good deal beyond this one example. One thing I have suggested in my recent posts is that we should ensure that reforms don't coincidentally slough off duties of serious supervision and evaluation on others without requiring much of us. Or, to put it in a more positive light, in thinking about these reforms, we should ask what hard work and unpopular choices are required of law professors to make them work. A charitable impulse toward graduating students, matched with arguments against meaningless or unadministrable barriers, that leads us to help graduating students through supervised practice or even a simple waiver of the bar exam without more should, if it is to work well and serve the interests of vulnerable clients, require law professors to be more rigorous in their teaching and evaluation and more willing to flunk more law students, whoever they may be, before they can harm clients. (Even with that greater willingness, we should also insist that supervising lawyers be willing to supervise with rigor and willing to declare at the end of a supervisory period that someone is unfit to practice.) The goal of current reforms is to get rid of artificial and impractical barriers, not to get rid of barriers altogether--not, at least, if our goal is to properly help clients and students. If neither a diploma privilege nor supervised practice are applied with teeth, then they do indeed become something we tolerate because it demands little of us.*

But while it is relevant in terms of the likelihood of proper implementation and the ability to persuade people to accept such reforms, I find the possibility that more law professors might be more unhappy under a reformed system "with teeth" otherwise irrelevant. On the list of factors to be considered in shaping or reforming legal education, the happiness of law professors should surely land at or near the bottom.

4) Although Yackee and the people I quoted in my earlier post come to different conclusions about the Wisconsin diploma privilege, I see both sets of comments as useful and complementary, in that both offer ground-level discussions of the privilege rather than abstract invocations of it. And although ABA Journal story I noted in my previous post seemed positive about the privilege, it's worth noting, as I did in the previous post, that what the lawyers in that story emphasized was not the curricular aspects of the privilege, but the general attitude that Wisconsin lawyers and law professors take their gatekeeping role seriously. Such a view would be consistent with Yackee's argument that the privilege, to the extent that it works, works by creating a highly Wisconsin-based bar. A bar that is more homogeneous and interconnected, in the sense that it has a large core of Wisconsinites who went to school in Wisconsin and practice there, is in a better position to monitor, mentor, and enforce professional norms. Whether that happens in practice in the state and whether the diploma privilege does enough to ensure that, or whether we instead see the emergence of the sorts of corruption to which small homogeneous professional and social groups are vulnerable, is beyond the scope of my knowledge. 

Comments are reasonably welcome, but the ones I'd most like to see would come from Wisconsin lawyers and educators, who might offer their own experience and perspective. Of course, on the Internet no one knows if you're a cheesehead. 

* On this and other points covered in the previous post, see also Prof. Deborah Jones Merritt's comment on a related post at TaxProf Blog. 

Posted by Paul Horwitz on May 16, 2020 at 10:58 AM | Permalink

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