Diploma Privilege and the Constitution

21 Pages Posted: 28 May 2020

See all articles by Claudia Angelos

Claudia Angelos

New York University (NYU)

Sara Berman

AccessLex Center for Legal Education Excellence

Mary Lu Bilek

CUNY School of Law

Carol L. Chomsky

University of Minnesota - Twin Cities - School of Law

Andrea Anne Curcio

Georgia State University - College of Law

Marsha Griggs

Washburn School of Law

Joan W. Howarth

William S. Boyd School of Law, UNLV; Michigan State University College of Law

Eileen R. Kaufman

Touro College - Jacob D. Fuchsberg Law Center

Deborah Jones Merritt

Ohio State University (OSU) - Michael E. Moritz College of Law

Patricia Salkin

Touro College - Jacob D. Fuchsberg Law Center

Judith W. Wegner

University of North Carolina School of Law

Date Written: May 27, 2020

Abstract

The COVID-19 pandemic and resulting shutdowns are affecting every aspect of society. The legal profession and the justice system have been profoundly disrupted at precisely the time when there is an unprecedented need for legal services to deal with a host of legal issues generated by the pandemic, including disaster relief, health law, insurance, labor law, criminal justice, domestic violence, and civil rights. The need for lawyers to address these issues is great but the prospect of licensing new lawyers is challenging due to the serious health consequences of administering the bar examination during the pandemic.

State Supreme Courts are actively considering alternative paths to licensure. One such alternative is the diploma privilege, a path to licensure currently used only in Wisconsin. Wisconsin’s privilege, limited to graduates of its two in-state schools, has triggered constitutional challenges never fully resolved by the lower courts. As states consider emergency diploma privileges to address the pandemic, they will face these unresolved constitutional issues.

This Article explores those constitutional challenges and concludes that a diploma privilege limited to graduates of in-state schools raises serious Dormant Commerce Clause questions that will require the state to tie the privilege to the particular competencies in-state students develop and avenues they have to demonstrate those competencies to the state’s practicing bar over three years. Meeting that standard will be particularly difficult if a state adopts an in-state privilege on an emergency basis. States should consider other options, including privileges that do not prefer in-state schools. The analysis is important both for states considering emergency measures and for those that might restructure their licensing after the pandemic.

Keywords: diploma privilege, constitution, bar exam, dormant commerce clause

Suggested Citation

Angelos, Claudia and Berman, Sara and Bilek, Mary Lu and Chomsky, Carol L. and Curcio, Andrea Anne and Griggs, Marsha and Howarth, Joan W. and Kaufman, Eileen R. and Merritt, Deborah Jones and Salkin, Patricia E. and Wegner, Judith W., Diploma Privilege and the Constitution (May 27, 2020). 73 SMU Law Review Forum 168 (2020), Available at SSRN: https://ssrn.com/abstract=3611688

Claudia Angelos

New York University (NYU) ( email )

Bobst Library, E-resource Acquisitions
20 Cooper Square 3rd Floor
New York, NY 10003-711
United States

Sara Berman

AccessLex Center for Legal Education Excellence ( email )

440 First Street
#550
Washington, DC, DC 20001
United States

Mary Lu Bilek

CUNY School of Law ( email )

2 Court Square
Long Island City, NY 11101
United States

Carol L. Chomsky

University of Minnesota - Twin Cities - School of Law ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

Andrea Anne Curcio

Georgia State University - College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States

Marsha Griggs

Washburn School of Law ( email )

1700 SW College Ave.
Topeka, KS 66621
United States

Joan W. Howarth

William S. Boyd School of Law, UNLV ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

Michigan State University College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

Eileen R. Kaufman (Contact Author)

Touro College - Jacob D. Fuchsberg Law Center ( email )

225 Eastview Drive
Central Islip, NY 11722
United States

Deborah Jones Merritt

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
614-247-7933 (Phone)
614-292-4868 (Fax)

Patricia E. Salkin

Touro College - Jacob D. Fuchsberg Law Center ( email )

225 Eastview Drive
Central Islip, NY 11722
United States

Judith W. Wegner

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919-962-4113 (Phone)

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