(CN) – The 7th Circuit revived a lawsuit challenging Wisconsin’s practice of allowing graduates of its two law schools to practice law in Wisconsin without taking the state bar exam.
“[T]he plaintiffs were denied an opportunity to try to prove their case,” Judge Posner wrote in the decision to remand the case without deciding the merits.
The so-called “diploma privilege,” first recognized by the Wisconsin Supreme Court, waives the state bar requirement for graduates of Marquette University Law School and the University of Wisconsin Law School.
Graduates of out-of-state law schools said the privilege violates the Constitution’s Commerce Clause by favoring in-state graduates and making out-of-state graduates clear extra hurdles to practice in Wisconsin.
The Wisconsin Board of Bar Examiners and the state high court conceded these points, but argued that attending an in-state law school was a “reasonable substitute” for passing the bar exam.
Judge Posner expressed skepticism, saying the privilege’s influence on where aspiring lawyers choose to study is enough “to bring this case within at least the outer bounds of the Commerce Clause; for the movement of persons across state lines, for whatever purpose, is a form of interstate commerce.”
Posner said the case had been dismissed prematurely.
At an earlier stage, Posner rejected the plaintiffs’ bid to delete the fact section of a defendant’s brief, saying the law school graduates “have confused ‘argument’ with ‘argumentative.'”