Vol. 75, No. 12, December
Is it Time to End the Bar Exam?
In this pro-con approach, authors disagree on whether it is time to
end the bar exam and extend the diploma privilege to graduates of all
ABA-approved law schools.
Separate-But-Equal Bar Admission
||No. Other States Should
Catch Up to Wisconsin
There is no reason to deny equal bar admission treatment on
the basis of where a student attended law school. Read pro article.
If other states applied the same rigor that Wisconsin does,
then extending the diploma privilege might make sense.
Read con article
End Separate-But-Equal Bar Admission
by Steven Levine
On Sept. 25, 2002, 105 lawyers were sworn in as new members of the
Wisconsin bar. They all graduated from ABA-approved law schools. They
all took the usual courses that students take in law school. But because
they attended law schools located outside Wisconsin, they all were
required to pass the Wisconsin bar exam in order to practice here. It's
time to end this "separate-but-equal" form of bar admission. It's time
to extend the diploma privilege to graduates of all ABA-approved law
schools, regardless of where the schools are located.
The diploma privilege has a long and colorful history in Wisconsin.
It was first offered by the legislature to U.W. Law School graduates in
1870 to encourage lawyers-to-be to receive formal legal education
instead of just "reading law," which was the method de jure of
qualifying to be a lawyer at that time.1
After years of unsuccessfully attempting to persuade the legislature to
abolish the privilege for U.W. graduates,2
Marquette University Law School apparently decided that if you can't
lick 'em, join 'em, and the privilege was extended by the legislature to
Marquette graduates in 1933.3 The supreme
court acquiesced,4 and since 1933 graduates
of both Wisconsin law schools have had the benefit of the diploma
Nationally, the diploma privilege has waxed and waned. Thirty-three
other jurisdictions also adopted the diploma privilege5 to encourage the formal education of lawyers, but
during the twentieth century the privilege began to fall out of favor,
and states slowly returned to the bar exam. The idea gained favor that a
comprehensive entrance exam is a necessary prerequisite for all
professions and, since law is a profession, lawyers have to pass a bar
exam. Such diploma privilege hold-outs as Montana, West Virginia, and
Mississippi finally threw in the towel, until Wisconsin was left as the
only state offering the privilege. The American Bar Association formally
disapproves of the diploma privilege,6 but
any suggestion of abolishing the privilege here is slightly less popular
than the 21-year drinking age is to teenagers.
But what's good for the goose is good for the gander. Many
students,7 including Wisconsin residents,
choose to attend out-of-state law schools that prepare them just as well
to practice in Wisconsin as do the U.W. and Marquette law schools. By
supreme court rule, virtually all lawyers-to-be who take the Wisconsin
bar exam must be graduates of law schools approved by the American Bar
Association;8 therefore, these schools are
quality institutions, and the lawyers they graduate are just as
qualified to practice law as are U.W. and Marquette graduates. There is
no reason to deny equal bar admission treatment on the basis of where a
student has attended law school.
But don't the Wisconsin law schools emphasize Wisconsin law? Isn't
that the real basis for limiting the diploma privilege to only U.W. and
Marquette graduates? As a graduate of both an out-of-state law school
and the U.W. Law School, I saw no difference in emphasis on Wisconsin
law. There certainly is no difference in such courses as constitutional
law, bankruptcy, securities law, federal civil procedure - all federal
in nature - and the many areas where Wisconsin has joined other states
in adopting uniform laws. Ironically, the multi-state bar exam (given as
a part of the Wisconsin bar exam) tests on "majority law," some of which
is contrary to Wisconsin law. A bar admission applicant must answer tort
questions on the basis of contributory negligence, then forget all that
he or she has learned for the bar exam in order to practice correctly in
Wisconsin. And face it, the law changes so frequently that what is here
today is gone tomorrow. The purpose of law school is not so much to
teach a student what the law is as it is to teach a student how to think
like a lawyer.
But wouldn't abolishing the bar exam be an expensive administrative
nightmare? Actually, eliminating the bar exam would save the state the
time and expense of administering the exam and save law school graduates
the time and expense of studying for it. Students attending out-of-state
law schools would have to meet the same course requirements as U.W. and
Marquette law school graduates and receive the same certifications from
their deans that are now required of the in-state school attendees. A
diploma privilege requirement for bar admission that applies to all
applicants equally would be a more efficient, less expensive, and fairer
method of bar admission than the present "separate-but-equal"
Is extending the diploma privilege to graduates of out-of-state law
schools a radical idea? Not according to the late Marquette Law School
Dean Howard Eisenberg, who also was chair of the Wisconsin Board of Bar
Examiners. In an article published in the November 2001 Wisconsin
Law Journal in which he advocated eliminating the bar exam in all
states, Dean Eisenberg wrote, "For graduates of accredited American law
schools, the bar exam serves no purpose and misleads the public. It
should be eliminated."9 Ending the bar exam
in Wisconsin would be a good place to start.
For years prior to their successful legislative effort in 1933,
Marquette University Law School graduates felt the sting of
discriminatory treatment in bar admission requirements. Now, it's time
to treat everyone equally and fairly by extending the diploma privilege
to graduates of all ABA-approved law schools, regardless of where the
schools are located. The Wisconsin Supreme Court should extend the
diploma privilege to graduates of all ABA-approved law schools on a
10-year trial basis to see if such a system can work. It's time to end
the present "separate-but-equal" system when it comes to bar admission.
It's time for equal justice under law.
Georgetown 1973, is an attorney with the Wisconsin Public Service
1 Chapter 79, Laws
2 In its efforts
to have the diploma privilege abolished, Marquette pointed out that the
states of Michigan and Minnesota had recently abolished the privilege.
The American Bar Association as well as the Wisconsin State Bar
Association's Committee on Legal Education also supported the bar exam
over the diploma privilege as the better method of bar admission.
See 3 Marq. L. Rev. at 105 (1918-19), 9 Marq. L. Rev. at 49, 50
(1924-25). All efforts to abolish the diploma privilege, however, were
3 Chapter 60, Laws
of 1933 (amending Wis. Stat. § 256.28(1)). To a great degree,
Marquette University Law School viewed its success in acquiring the
diploma privilege as a declaration of equal status with the U.W. Law
School. In 1983 Marquette officially marked the occasion by "Celebrating
50 Years of Diploma Admission to the Bar."
4 In re
Admission of Certain Persons to the Bar, 211 Wis. 337, 247 N.W. 877
(1933). Ironically, although the Wisconsin Supreme Court jealously
guards its authority over who can practice law in this state, the
diploma privilege was granted to graduates of both Wisconsin law schools
by the legislature rather than by the court.
5 Francis D.
Morrissey, Comprehensive Test on Legal Principals is Last, Best Step
in Determining Fitness for Lawyering, Chicago Daily L. Bull., April
6 American Bar
Association Code of Recommended Standards for Bar Examiners, No. 16,
states: "A person who is not a member of the bar of another jurisdiction
of the United States should not be admitted to practice until the person
has passed a written bar examination administered under terms and
conditions equivalent to those applicable to all other applicants for
admission to practice."
In addition to the ABA's disfavor of the diploma privilege, some
states refuse to grant "reciprocity" admission (admission without having
to take a bar exam) to lawyers admitted via diploma privilege on the
same terms as lawyers who have passed a bar exam in the jurisdiction in
which they are practicing. See, e.g., Tennessee SCR 7, sec.
In a move of doubtful constitutionality, the Wisconsin Supreme Court
has retaliated by adopting SCR 40.05(1m)(b), which denies reciprocity
admission to lawyers from those states.
7 In the year
2001, 232 lawyers who attended law schools outside Wisconsin were
admitted via bar exam, while 422 U.W. and Marquette law school graduates
were admitted via diploma privilege. Those entering via bar exam
constituted more than 35 percent of lawyers admitted to practice in
Wisconsin last year via both methods of admission. (In addition to
admission via bar exam or diploma privilege, 77 lawyers were admitted in
2001 on the basis of their practice in other jurisdictions - mainly
Illinois and Minnesota.) The bar exam pass rate was just over 75 percent
in 2001 and just over 77 percent in 2002. Thanks to attorney Gene R.
Rankin, director, Board of Bar Examiners, for this information.
8 Supreme Court
Rule 40.04(1)(a) requires an applicant for bar admission via exam to
have graduated from a law school fully or provisionally approved by the
American Bar Association. An exception is made if an applicant has
graduated from an unapproved law school but has already passed the bar
exam of the state where the law school is located. SCR 40.04(1)(b).
9 Howard B.
Eisenberg, Eliminate the Bar Exam!, Wis. L.J., Nov. 28, 2001,
Other States Should Catch Up to
by Gene R. Rankin
The diploma privilege is a very good thing, but the way it has been
made into a very good thing is largely unique to Wisconsin. As anecdotal
evidence is the best kind, allow me to relate my conversation
(reconstructed, of course) with the chief justice of a state that once
had the diploma privilege but has it no longer:
Justice: From Wisconsin, eh? Still have the diploma
Me: Yes, sir. And will continue to have it for as long as it
continues to work well.
Justice: What do you mean, "works well"? How do you manage
Me: Well, the supreme court has the 30-credit rule
specifying the basic required courses, the 60-credit rule which has a
broader scope and then, for the U.W., there's the Board of Visitors and
the fact that the law school is a mile away from the supreme court.
Marquette is a little further away, but has similar oversight through
its Dean's Board of Advisors.
Justice: Really? We just took the law school's word and
What this all means is that Wisconsin has made the diploma privilege
work. Wisconsin is a smallish state with but two law schools, and it has
paid attention to legal education. This level of attention is evidenced
by the fact that Wisconsin's adjoining states do not insist that diploma
privilege graduates take a bar exam to be admitted in them, as do a
number of other states that adjoin former diploma privilege states
(specifically, Alaska [said to have adopted Ohio's rule without further
analysis], Ohio, Tennessee, and Wyoming).1
Clearly, Minnesota, Iowa, Illinois, and Michigan do not find the legal
training acquired at the U.W. or Marquette to be wanting.
With respect to that training, it is true that there is a substantial
body of what approaches "national" law, but not every state has adopted
the most recent accretions to the UCC, nor have they accepted the wisdom
that informs Wisconsin's criminal law, marital property law, tort law,
or real estate law. These areas of law unique to Wisconsin are, in fact,
taught at Wisconsin's law schools and tested on by Wisconsin's bar
examination. We do so because we think that a lawyer professing minimal
competence to practice law in Wisconsin ought to know them. I would be
astonished if anyone thought otherwise.
The late Dean Howard Eisenberg advocated extending the diploma
privilege to other law schools, but it cannot be done easily. In his own
words, "Wisconsin is the only state that gets it
right."2 (Emphasis in original.)
Wisconsin gets it right because it regulates legal education. If the
same quality is to be secured from out-of-state law schools as has been
from the in-state ones, either the supreme courts of the states where
those law schools are located will have to exercise the degree of
oversight exercised by the Wisconsin Supreme Court or Wisconsin will
have to ensure that their curricula meet the requirements set by SCR
40.03. This may sound easy on the surface, but operationally it would be
terribly difficult. As of Oct. 1, 1999, there were 182 ABA-approved
schools granting the first professional degree in law, and their quality
Extending the diploma privilege to only ABA-approved schools could
raise another question. Recently, the supreme court extended the right
to sit for Wisconsin's bar exam to graduates of non-ABA-approved
schools. There are at least 29 non-ABA-approved law schools in the
U.S.4 In addition, there are
non-ABA-approved schools not included in this total, schools granting
correspondence law degrees to people who never acquired a college
degree.5 Graduates of these schools sit for
the Wisconsin bar exam only if they are eligible to sit for the bar exam
where their school is located and if they have already taken and passed
a bar exam. How diploma privilege parity might be granted to these
schools presents an even more difficult question.
Beyond this, there is the problem of how to cope with the people who
have obtained their legal training in other countries, some of which are
common-law jurisdictions, while others are code jurisdictions, and still
others have their legal structure tied to cultural traditions. Keeping
tabs on all of these from Madison would be at least as difficult a chore
as creating, administering, and grading two bar examinations each
Still beyond this is the basic issue of fairness. More than half of
America's jurisdictions, the ABA's recent debates on multijurisdictional
practice (MJP) notwithstanding, do not allow admission without a bar
examination.6 It can hardly be fair to
extend the diploma privilege to all, when most states extend reciprocity
to none. It is that notion of fairness that underlies the adoption of
SCR 40.05(1)(c), which not only denies reciprocity to lawyers from
those bar-exam-only states but which also imposes the sending
jurisdiction's rule upon its lawyers seeking admission to Wisconsin. In
effect, this rule precludes admission on motion to lawyers from four
more states (which have residency requirements, clerkship requirements,
or which grant temporary licenses), and imposes higher thresholds than
the three-year practice requirement set by SCR 40.05(1)(b), Wisconsin's
base reciprocity rule. The last nail in the reciprocity coffin is
SCR 40.05(1m)(b), the section that bars admission on motion to
lawyers from those states that abjure the diploma privilege and the
lawyers admitted by it. This section bars motion admission to the
lawyers from only four states, surely an effect less discriminatory than
the effect of the majority of the admissions rules afoot in the
The constitutionality of reciprocity rules, though perhaps disturbing
to those caught in their net, has been affirmed in challenge after
challenge. One of the most succinct statements on this point came out of
a challenge in South Carolina, where the appellate court said
"Reciprocal statutes or regulations, it has been uniformly held, are
designed to meet a legitimate state goal and are related to a legitimate
state interest. For this reason, they have been found to be invulnerable
to constitutional attack on equal protection grounds."8
While I have expressed concern with the utility of Wisconsin's
reciprocity rule, I have never had a moment's doubt about the utility of
the diploma privilege. If other states applied the same rigor that
Wisconsin does, then I believe that extension of the privilege to those
states could be granted with ease. A good first step would be for those
states to grant the diploma privilege to their own graduates. When do
you suppose they might?
Gene R. Rankin,
U.W. 1980, is director of the Wisconsin Board of Bar Examiners.
1 Erica Moeser and Margaret
Fuller Corneille, eds., "Comprehensive Guide to Bar Admissions 2002,"
National Conference of Bar Examiners and American Bar Ass'n, Madison,
Wis., and Chicago, Ill., 2002, Chart X.
2 Howard B. Eisenberg,
Eliminate the Bar Exam!, Wis. L.J., Nov. 28, 2001, at 10A.
3 Official American Bar
Association Guide to Approved Law Schools, 2001 Edition, IDG Books
Worldwide 2000, Foster City, Calif., at 9.
4 Id. at 452.
5 See, for example, a
California-based Internet school granting a J.D., www.concordlawschool.com.
6 "Comprehensive Guide,"
supra note 1, Chart X.
7 See note 1,
8 Hawkins v. Moss, 502
F.2d 1171 (4th Cir. 1974), cert. den., 420 U.S. 928 (1975).