The 7th Circuit reinstates the case challenging the Wisconsin diploma privilege.

The case is Wiesmueller v. Kosobucki.

Under SCR 40.03, a diploma from an ABA-accredited law school whose curriculum includes the specific study of Wisconsin law is sufficient evidence of competency to practice in Wisconsin without a bar examination.

A class of recent graduates from ABA-accredited schools outside Wisconsin who seek a law license in Wisconsin argued that the privilege infringes on the Commerce Clause because only graduates of the law schools at Marquette and the University of Wisconsin benefit from it.

The Wisconsin Attorney General, defending the diploma privilege, has argued that the privilege is not discriminatory because of its availability to residents of any state who attend a school where Wisconsin law is taught. And if it does have an effect on interstate commerce, it is outweighed by the state’s interest in competent lawyers who know Wisconsin law, the attorney general asserts.

In its opinion, the court of appeals said that the district court’s dismissal of the action left it in “an evidentiary vacuum.” The plaintiffs had been appealing that order issued.

The court indicated that the plaintiffs should build the evidentiary record before the diploma privilege’s effect on interstate commerce can be assessed.

“[S]uppose – a supposition not only consistent with but actually suggested by the scanty record that the plaintiffs were not allowed to amplify – that Wisconsin law is no greater part of the curriculum of the Marquette and Madison law schools than it is of the law schools of Harvard, Yale, Columbus, Virginia, the University of Texas, Notre Dame, the University of Chicago, the University of Oklahoma, and the University of Northern Illinois (which happens to be within a stone’s throw of Wisconsin, as are the three law schools in Minneapolis),” the court wrote.

“That would suggest that the diploma privilege creates an arbitrary distinction between graduates of the two Wisconsin law schools and graduates of other accredited law schools. And it is a distinction that burdens interstate commerce,” the court concluded.