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7th Circuit Holds Wisconsin Supreme Court's Diploma Privilege May Violate Commerce Clause

The plaintiffs, and the certified class they represent are graduates of accredited out-of-state law schools who want to practice law in Wisconsin. The Wisconsin Supreme Court admits newly minted graduates of state law schools to practice without requiring them to take the bar exam. Wisconsin is also among the 38 States that provide admission on motion to experienced attorneys. Plaintiffs argued Wisconsin’s “diploma privilege” discriminates against graduates of out-of-state law schools who would like to practice law in Wisconsin. The 7th Circuit published decision written by Judge Posner remanded the case for a determination of whether the challenged favoritism for Wisconsin law school graduates violates the Commerce Clause. See PDF http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=rss_sho&shofile=08-2527_004.pdf
The case was remanded to allow plaintiffs an opportunity to prove their claims.

Hat tip: Inside Higher Ed. and ABA Journal Daily Newsletter [abajournalereport@abanet.org]

Permanent Link: 7th Circuit Holds Wisconsin Supreme Court's Diploma Privilege May Violate Commerce Clause

Oregon Bar Examiners Propose Rule Change: Request Reciprocity Admission

The Chair of the Oregon Committee of Bar Examiners, the Hon. Jill Tanner, writes: “One of the primary duties of a lawyer is to protect the public interest – to ensure that justice is served and that laws are followed. But how can a lawyer effectively protect the common good in a world of change? Oregon’s current rule allows reciprocal admission only with Alaska, Idaho, Utah and Washington. Each of those states is one of the qualifying jurisdictions in the proposed rule. If the rule is enacted, Oregon attorneys could seek admission in 37 qualifying jurisdictions without taking another bar examination. In addition, attorneys licensed in those same qualifying jurisdictions would be allowed to be licensed in Oregon without taking the Oregon bar examination. California is not one of the qualifying jurisdictions because it does not grant reciprocal admission on motion. Judge Hatter writes: “economic protectionism created by barriers to entry may invite constitutional challenges, and it shows little concern for those whom attorneys should serve. Finally, there is no evidence that a disproportionate number of disciplinary matters arise when attorneys are admitted without taking another bar examination.” All written comments should be directed to the Oregon Supreme Court in care of the Board of Bar Examiners to admission-on-motion@osbar.org. Written comments must be received no later than 5 p.m, Thursday, Oct. 1. http://www.osbar.org/publications/bulletin/09jun/member.html

Permanent Link: Oregon Bar Examiners Propose Rule Change: Request Reciprocity Admission

Bar Exams for Experienced Attorneys: Time to Connect the Dots and Disconnect the Code of Silence

The practice of law has become nationwide and global. Unfortunately, the licensing process for U.S. attorneys has not caught up with today’s reality. The mental model that requires experienced attorneys to re-invent the wheel and take another bar exam to obtain licensing in another state is as outdated as the separate but equal era in the 21st century.

A bar exam, like driver’s license testing, is predictive in nature and designed to measure entry level skills. The purpose of the exam is to model what a beginning attorney would confront in practice and thus to provide a measure of comfort that the public will not be injured. The fact that an attorney is already licensed and practicing successfully in another jurisdiction is the best evidence of competence – the proof is in the pudding. The United States Supreme Court has held that there is no reason to presume that an out-of-state attorney will not become familiar with local law or disserve the public. Thus, the mere fact experienced attorneys are required to take another licensing exam illustrates the exam is suspect.

Digging deeper into the licensing function, Robert MacCrate, Esq., was the chair of the ABA’s Task Force on Law Schools and the Profession. The “MacCrate Report” identifies 10 fundamental lawyering skills: (1) problem solving, (2) legal analysis and reasoning, (3) legal research, (4) factual investigation, (5) communication, (6) counseling, (7) negotiation, (8) litigation and alternative dispute resolution, (9) organization and management of legal work, and (10) professional self-development.

A pen and paper bar examination cannot and does not test nine of the ten skills identified by the MacCrate Report as fundamental to the successful practice of law. The only identified skill that can be tested is legal analysis and reasoning. Dr. Geoff Norman is a well known and highly respected psychometric expert who has 30 years of experience in the field and has written numerous articles for The Bar Examiner. Dr. Norman reports, “Study after study has shown that it is almost impossible to get judges to agree on scores for essay answers.” For example, California’s licensing exam for experienced attorneys is 100 percent subjective. The RAND Corporation reports a 23 percent or less agreement among graders of the exam. Deborah Rhode, a Stanford law professor, reports that there has never been a study proving a correlation between passing a bar exam and competently practicing law. Yet, two out of three already licensed attorneys are disqualified for California licensing based on a high-stakes licensing test that has no other purpose other than to limit supply and increase demand.

Imagine, if you took an AIDS test, and the test results 23% of the time were the same, and there was no proof the test had any correlation with having the virus? This putative re-testing scheme is a cancer that needs to be removed by any and every means necessary.

Many bar examiners at the state and national level know these indisputable facts. They have a code of silence that permits each of them to make money off the profession by selling additional bar exams. They are by silence perpetuating the status quo long after the quo has lost its status.

Join the NAAMJP www.mjplaw.org. Let’s connect the dots and disconnect this code of silence.

Permanent Link: Bar Exams for Experienced Attorneys: Time to Connect the Dots and Disconnect the Code of Silence


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