International Economic Law and Policy Blog

More on the Wisconsin Diploma Privilege

Following-up on this post, we may eventually get a decision related to whether Wisconsin's "diploma privilege" violates the dormant commerce clause.  From the National Law Journal:

A federal appeals court has rekindled a challenge to a Wisconsin rule that allows graduates of the state's two law schools to become licensed attorneys without taking the state bar examination.

The U.S. Court of Appeals for the 7th Circuit on July 9 remanded a class action launched by two graduates of out-of-state law schools who allege that Wisconsin's "diploma privilege" rule is unconstitutional.

...

Wisconsin admits graduates from Marquette University and the University of Wisconsin Law School to practice without requiring them to take the Wisconsin bar exam. Only one other state, New Hampshire, admits graduates who haven't taken a bar exam — in that case, attorneys who have completed a special program at New Hampshire's only law school, Franklin Pierce Law Center.

Wisconsin requires graduates from outside the state to take the state bar exam in order to practice. It also permits bar admission without an exam for attorneys who have practiced for at least five years in another state.

...

The[] lawsuit alleges that the diploma-privilege rule unfairly restricts the mobility of out-of-state graduates in violation of the commerce clause in Article 1 of the U.S. Constitution.

...

Without addressing the merits of the arguments, the appeals panel held that the validity of the parties' arguments remained unclear because of the lower court's dismissal. Evidence was necessary to determine whether the diploma privilege creates an arbitrary distinction between in-state graduates and out-of-state graduates, it said. Such a determination, the court concluded, would help the courts weigh the burden on interstate commerce.

Judge Richard A. Posner wrote the opinion. Also on the panel were judges Kenneth F. Ripple and Diane P. Wood.

Here's an extract from the decision:

For suppose—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, Columbia, 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). 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. Law school applicants who intend to practice law in Wisconsin have an incentive to attend one of the Wisconsin law schools even if, were it not for the diploma privilege, they would much prefer to attend law school in another state.

Achieving Domestic Free Trade

With all the talk of international trade negotiations, it's easy to forget that there may still be work to be done at the domestic level:

As the [Canadian] premiers gather in Regina from August 5 to 7 for their Council of the Federation summer meeting, a business coalition is urging them to act faster to cut longstanding barriers to interprovincial trade.

...

Among the key internal barriers in Canada are policies and regulations that hinder interprovincial trade in goods and those that make it difficult for workers to move between provinces and have their credentials recognized.

Many areas, including the environment, food and agriculture, securities, and government procurement, are regulated by the provinces and territories.

And changes in labour mobility require working with the many self-regulating associations in the jurisdictions that govern numerous professions and trades affecting everyone from lawyers, doctors, nurses, and teachers to welders, mechanics, and construction workers.

A Trade in Services Dormant Commerce Clause Case

Someone is challenging Wisconsin's diploma privilege as a violation of the dormant commerce clause:

Wisconsin’s diploma privilege for graduates of the law schools at Marquette University and the University of Wisconsin may be in danger, at least if the Seventh Circuit reviews the merits of the privilege.

Two of the judges at oral argument on Tuesday called the state’s justification for the privilege “fiction.”

Christopher L. Wiesmueller, a graduate of Oklahoma City University Law School, and an attorney with Kuchler & Cotton Law Offices in Waukesha, is challenging the privilege as a violation of the dormant commerce clause, by treating the in-state law schools and their graduates more favorably than those from out-of-state.

It pretty clearly has a discriminatory effect, and it seems that the judges were not impressed by Wisconsin's justification.

More on China-Vermont

For those interested in hearing more about the China-Vermont trade issues I mentioned the other day, here are some of the relevant documents:  http://www.worldtradelaw.net/chinavermont.pdf  They include: a press statement by the Vermont legislator involved; the original letter sent by the Chinese government agency; an analysis of the legal issues by the Forum on Democracy and Trade; and a letter from the Vermont legislator to the U.S. Department of Commerce.

This situations raises a few questions for me:

• How should these issues be dealt with:  Should foreign governments be able to lobby state governments directly, or should they go to USTR or the DOC instead?  If they are to go directly to state governments, are there special rules or procedures they should follow?
• Should USTR/DOC be offering assistance to state governments who are faced with these issues?
• Will China continue to go directly to state governments given the reaction here?
• Was the Vermont legislator correct to be so upset?  Couldn't Vermont just ignore China's letter entirely?
• More broadly, what is the role of sub-national governments in the international trading system?  GATT Article XXIV:12 is a little vague on this.

A China-Vermont Trade Dispute?

From a Vermont TV station's web site:

A state senator from Chittenden County said a letter received from a Chinese official criticizing legislation she has pending in Montpelier "flies in the face of state sovereignty and democratic principles."

Sen. Virginia Lyons of Chittenden County chairs the Natural Resources and Energy Committee. Lyons held a news conference Tuesday to discuss the implications of the undated letter she said she received in April.

The three-page communication, in both English and Chinese, was signed by "Wang Ni Ni" who identified himself as director general for the "China WTO/TBT National Notification & Enquiry Center" and listed an address in "Hai Dian District, Beijing."

The letter opened by saying "we appreciate the opportunity to submit comments on the regulation under the notification proposed by the State of Vermont."

Wang then outlined objections to Lyons' bill that would impose fees on manufacturers of electronic goods sold in Vermont. The fees, which would be calculated based on the weight of an item, would establish a fund for eventual recycling of e-waste. Wang suggests the mechanism would affect manufacturers unevenly and amount to an "unfair restriction of trade."

Lyons said her bill would effectively reduce the volume of electronic waste now winding up in Vermont landfills. Her proposal has yet to see debate at the state capital. But most of her ire focused on what she considers an unwelcome intrusion.

"It's simply not OK for other governments, foreign national governments, to feel they have a right to intervene in our state legislative process in the way China has," Lyons said.

It seems that this kind of direct contact between a foreign government and a state government did not go over well.  I recall reading about something similar in Maryland recenty.  I wonder if we'll see more of this in the future, or if China (and others) will go to USTR about these issues instead.