Details like this provide an inside glimpse of the Court.  Early in his account, Stevens describes how the prohibition against playing basketball in the gym directly above the courtroom occurred during Vinson’s tenure: Byron White, one of Vinson’s first clerks and a former All-American, was practicing layups during oral argument.  Stevens’ anecdotes are always respectful of their subjects and strike one as rather tame, at least until one realizes that civility, the ability to “disagree without being disagreeable,” is of the utmost importance to him.  Stevens sat beside Antonin Scalia for much of his time on the Court and was the “beneficiary of [Scalia’s] wonderfully spontaneous sense of humor.”  The year Scalia was appointed, they heard two cases involving police questioning of rather unsophisticated suspects.  (Stevens does not identify the cases by name, another instance of his tact, but they are readily identifiable from his brief description of the facts as Colorado v. Spring and Connecticut v. Barrett, both decided in 1987).  Scalia apparently leaned over and whispered to Stevens that it must be “dumb defendant day.”  Now, anyone who has read a Scalia opinion knows that this cannot be the apogee of his wit and can be fairly certain that, in their twenty-four years on the bench together, he made sharper comments in the course of their duties.

One gets the sense that Stevens is reluctant to write anything that might reflect poorly on the Court or its Justices.  And it is perfectly understandable that he would be unwilling to besmirch the institution with idle gossip.  The Court is both a vital force and symbol of American democracy and, in the words of his dissent in Texas v. Johnson (1989), where the majority held that burning an American flag at a demonstration was protected by the First Amendment, it is “worthy of protection from unnecessary desecration.”

Nevertheless, Stevens does not shy away from criticizing his colleagues and even President Reagan when their decisions diverge from his closely held principles.  Though he found common ground with Chief Justice Rehnquist on issues involving separation of powers, Stevens was sharply critical of Rehnquist’s stance on state sovereign immunity, particularly in Seminole Tribe of Florida v. Florida (1996).  “Like the gold stripes on his robe, Chief Justice Rehnquist’s writing about sovereignty was ostentatious and more reflective of the ancient British monarchy than our modern republic.”  Invariably, however, Stevens’ criticisms are based on what he considers to be flawed reasoning and not personal animus.  His disapproval of Rehnquist’s decision to adorn his robe with gold stripes does not detract from his admiration for Rehnquist’s other fine qualities: his impartiality in both private conference and open court and his efficient administration of the Court’s business.

Stevens’ evaluation of the current Chief Justice, John Roberts, is very favorable.  He describes him as “a better presiding officer than both of his immediate predecessors” as well as a more skilled representative of the Court in non-judicial settings.  He is particularly appreciative of Roberts’ concurrence in Graham v. Florida (2010) because it represents for him a rejection of the interpretive approach that looks at the “original intent” of the Framers in determining the constitutionality of a given case.  In Graham, Roberts agreed with the majority that imposing a life sentence on a juvenile defendant for a non-homicide offense violated the Eighth Amendment but rejected a categorical bar to such a sentence on the grounds that courts should weigh factors like the offender’s age and criminal conduct on a case-by-case basis.  Roberts recognized a proportionality requirement at variance with Scalia’s dissenting opinion in Harmelin v. Michigan (1991) that would prohibit certain, specific punishments under the Eight Amendment but would not require, in Stevens’ words, “that the punishment fit the crime.”

Stevens’ discussion of Roberts’ opinion in Graham highlights two themes of his own judicial philosophy.  According to Stevens, judges and justices should exercise restraint, and decide only what a case “actually presented” without trying “to craft an all-encompassing rule for the future.”  Kyllo v. United States (2001) (dissenting).  This, of course, stems in part from his understanding of the separation of powers in our system of government.  As he wrote in Kyllo, Congress is the branch that “grapple[s] with. . . emerging issues” and it is counterproductive to “shackle them with prematurely devised constitutional constraints.”

Secondly, Stevens disagrees with an uncompromising insistence on the specific intent of the Framers because it does a disservice to the emerging problems of a changing society.  Which is not to say the principles enshrined in the Constitution are readily susceptible to modification; if they were they would not be principles.  Rather, it is that the strength of the principles lies in their flexibility and not in a code-like rigidity.  Stevens quotes Justice McKenna in Weems v. United States (1910), “[A] principle, to be vital, must be capable of wider application than the mischief which gave it birth.”

These two aspects of Stevens’ jurisprudence help explain what comes across in his memoir: a reticence that displays itself in distaste for superfluous gossip on the one hand, and a generosity of spirit capable of disagreement without rancor on the other.  Towards the end of Five Chiefs, Stevens writes that he has “no memory of any member of the Court raising his or her voice.”  Whether this is strictly true, and as far as it is his memory there is no reason to doubt that it is, it sheds light on how Stevens envisioned the work of the Court as a civil pursuit for justice.

An American Bar Association committee had recommended that the law degree be called the juris doctor as early as 1906, and a small number of law schools, most notably the University of Chicago, had long called the basic law degree the J.D. However, until the late 1960s the vast majority of schools used the designation of LL.B. or B.L. which suggested that the law degree was an undergraduate degree (as it still is in most places in the world).

What is much less well known is that in an earlier era, some law schools simultaneously offered both the LL.B. and J.D. degrees. While the original law degree awarded by Marquette was the LL.B., between 1926 and 1943, Marquette offered its students the option of earning either an LL.B. degree or a J.D. degree. This innovation apparently originated with Dean Max Schoetz, but was continued after his untimely death in 1927.

Both of the two law degrees were normally earned in three years. However, to earn the J.D., a student had to (1) have already earned an undergraduate degree in a field other than law–admission to Marquette required only two years of college between 1926 and 1934 and only three after that year—(2) compile an average grade of 88 (out of 100) in all law courses (compared to 77 for LL.B. candidates); and (3) prepare an acceptable thesis on a law-related topic in his (or her) third year. (The student was also required to assign the copyright in the thesis to the law school dean.)

There was no formal advantage to the J.D. degree, at least in regard to bar admission. One did not need to have a law degree of any sort to take the Wisconsin bar examination until 1940—three years of study in or outside of a law school was all that was required. Moreover, after 1933, either degree qualified its holder for automatic admission to the Wisconsin bar under the diploma privilege, which was extended to Marquette that year. The University of Wisconsin, which had had the diploma privilege since 1870, had never awarded a J.D. degree, so there was no basis on which to distinguish between the two degrees. There was also no evidence that law firms placed any special premium on hiring graduates with the J.D. degree.

Given this lack of immediate advantage, few Marquette students appear to have even attempted the J.D. degree. In any given year, only a handful of students met the full set of qualifications, and less than 40 such degrees were awarded in the decade and a half that the option existed. The last of the original J.D.’s at Marquette were awarded in 1939, although the option remained on the books until 1943 (or perhaps a year or two longer as records for the law school for 1944 and 1945 are almost non-existent).

Our colleague Jim Ghiardi, who attended Marquette Law School from 1939 to 1942, recalls that the J.D. degree fell out of favor as students began to realize that the extra work necessary to earn the degree provided them with no real additional benefit, particularly during a Great Depression with a world war looming on the horizon.

Lois Kuenzli Collins was enrolled at the law school when the J.D. option was created, and like most of her classmates she did not qualify for the “higher” degree. However, her recollection of the distinction between the two degrees probably explains her excitement forty years later when her degree was “upgraded” from an LL.B. to a J.D.

As it turns out, there was nothing unique about Marquette’s awarding both J.D. and LL.B. degrees in the 1920s and 1930s. The practice was particularly widespread, it appears, in the Midwest.

As late as 1961, there were still 15 ABA-accredited law schools in the United States which awarded both LL.B. and J.D. degrees. The fifteen included George Washington University, Chicago-Kent, DePaul, John Marshall, Loyola of Chicago, Northwestern, Indiana, Drake, Iowa, Washburn, Michigan, Detroit College of Law, Wayne State, Ohio State, and Willamette. At least by a broad definition, all of the 15 were located in the Midwest except for George Washington (D.C.) and Willamette (Ore.).

In all of the listed schools except Northwestern and Iowa, the largest number of graduates received the LL.B. degree. (At Northwestern and Iowa, the J.D. degree was the more commonly awarded.) The practice was not exactly dying out either, as the following year both the University of North Dakota and the University of Oregon joined the list of schools awarding both degrees. Duke adopted the J.D./LL.B. distinction after 1961, and the two options were listed in the Duke Law School catalog as late as 2007, although the school apparently had not awarded an LL.B. degree since the 1960s.

As the number of law students who entered law schools with college degrees increased in the 1950s and 1960s, a number of institutions apparently used the J.D./LL.B. distinction to encourage would-be law students to complete their undergraduate degrees before beginning their legal studies. (If they failed to do so, they got the bachelor’s degree, not the doctorate.)

Presumably, the practice of awarding two different degrees was originally related to the argument that it did not make sense to award a second bachelor’s degree to someone who already had one. (A previous undergraduate degree appears to have always been a prerequisite for the pre-1960s J.D.) Unfortunately, there does not appear to be an easily accessible source that identifies when individual schools began to award the two law degrees. The practice started at Marquette in 1926 and at Chicago-Kent in 1933, but it could well predate the 1920s at other schools.

The concentration of the “two types of law degree” schools in the Midwest (and particularly in Chicago) seems likely related to the presence of the highly prestigious University of Chicago which from its founding always required its students to have college degrees, and, beginning in 1902, it always awarded it graduates the J.D. degree.

In contrast, Harvard Law School, which was the first law school to insist on a prior undergraduate degree as a prerequisite for admission, considered the possibility of awarding some sort of doctorate in law in the early 1900s but decided to stay with the LL.B. Harvard also invested heavily in the early 20th century in graduate law programs that resulted in the award of LL.M. and S.J.D. degrees. Given that this graduate degree terminology did not really fit if the first law degree was called a doctorate, Harvard retained the undergraduate designation for its law degree. Given its great prestige, whatever was done at Harvard Law School was likely to imitated at law schools across the country.

It is not clear why a few schools like Marquette and the University of Washington once awarded both LL.B. and J.D. degrees but decided to stop doing so long before the 1960s. Washington eliminated the J.D. degree in 1938 and, as mentioned above, Marquette followed in the mid-1940s. The Marquette experience suggests that the decision may have been related to a lack of student interest in the more demanding degree, as well as to a general revamping of the law school that occurred immediately after World War II under the leadership of Dean Francis Swietlik.

There were a few other variations on the J.D. degree as well. At Georgetown in the 1930s, one could earn a J.D. degree, but only after earning an LL.B. degree, which made it more in the nature of an LL.M. or an S.J.D. degree. Another variation occurred at William & Mary where, for much of the 20th century, graduates received a B.C.L. degree rather than either the LL.B. or the J.D.

By the end of the 1960s, the variations in terminology had been eliminated and the letters “JD” are now synonymous with the words “law degree”. However, we live in a time when many of the assumptions of contemporary legal education are being reexamined, and the legitimacy of much of what has been long taken for granted is being reconsidered.

Perhaps one result of the current anxiety will be a movement away from the one-size-fits-all J.D. degree of the late 1960s to something more akin to the multiple-degree model embraced by Marquette in the 1920s and 1930s.

Collins practiced with her husband, Vincent Collins, in Waukesha in the mid-1900s. She was one of the first women to practice law in Wisconsin. Recently I had the chance to speak with Collins’ daughter, Patricia Andringa, about her mother’s work and life as an early woman lawyer in Wisconsin.

Collins graduated from Waukesha High School in three years in 1923. She attended Marquette University and graduated in four years in 1927 with both an undergraduate and law degree. She met her husband while at Marquette, and they graduated together.

Collins’ grandfather encouraged her to attend law school. He told her that he felt she was bright enough to go to law school, and that if she went, he would reward her when she graduated. At Marquette, she was a member of an honor society and played tennis. She was twenty-one when she graduated. She was the sixty-sixth woman lawyer in Wisconsin, according to the Wisconsin Bar Association’s “Pioneers in the Law: The First 150 Women” website. The Collinses graduated with Mabel Watson Raimey, the first African-American woman lawyer in Wisconsin.

At the time the Collinses graduated from Marquette, most students graduated with an LL.B. degree. In the late 1960s, the LL.B. degree was reclassified as a J.D. The Law School sent Lois Collins her J.D. paper, which the family still has. When the family learned that her degree had been reclassified as a J.D., they celebrated with a cake topped with Lois Collins’ Marquette graduation photo. The family also still keeps Lois Collins’ notary seal.

After graduating, Lois and Vincent Collins married on August 28, 1930. Lois Collins worked for a time in Waukesha as an assistant city treasurer.

Vincent Collins established his reputation in Waukesha as the city attorney from 1932 to 1938. He entered private practice with his wife as Collins and Collins in 1933. Lois Collins was the second named partner in the firm. The firm later became Collins, Collins, and Tichenor when Paul Tichenor, another Marquette graduate, joined the firm. Consistent with the time, the firm was a general practice law office.

Andringa said that her parents spent time each night discussing cases and other legal matters. Although Lois Collins did not practice law full time while she raised her family of seven children, she had an integral role in her husband’s practice as a sounding board and strategist. When the children were around, the Collinses were careful to go into another room to discuss legal matters. She also drafted documents such as deeds, some of which my father has come across in his own practice.

Lois Collins was raised a Methodist, but she converted to Catholicism when she married her husband, who was Catholic. She was active in Catholic social and philanthropic circles throughout her life. She was the president of the Christian Mothers of Joseph’s Church in Waukesha and the Milwaukee Archdiocesan Catholic Women. She was one of the prime motivators in establishing Catholic Memorial High School in Waukesha and raising capital for the school. Andringa remembers the fundraisers her mother and other local women put together for the school, including making and selling rag dolls. Her mother spent much time on the phone soliciting funds for the school.

Andringa said that growing up in the Collins family, she and her siblings “never gave the idea of women’s rights any thought.” They were raised to think that they “could be anything and never given the impression that it would be otherwise.” Andringa said that her “mother could do anything and was always ready for a challenge.”

The Collins’ legacy lives on. Son James Collins and grandsons Tim Andringa and Mark Andringa followed in their parents’ and grandparents’ footsteps in attending Marquette University Law School.

*Thanks to Assistant Dean Jane Casper who located the wonderful photos of the Collinses and to Professor Gordon Hylton who explained the J.D. reclassification to me. I am also grateful to the Waukesha City Attorney’s Office staff, who verified Vincent Collins’ years of service.

After the Braves’ Chicago-based owners announced their plans to move to Atlanta, Georgia for the 1966 season, a criminal complaint was filed in Milwaukee County Circuit Court alleging that the Braves and the other nine teams in the National League had conspired to deprive the city of Milwaukee of Major League Baseball, and, moreover, had agreed that no replacement team would be permitted for the city. As such, the complaint alleged, the defendants were in violation of the Wisconsin Antitrust Act.

The defendants initially removed the lawsuit to the United States District Court for the Eastern District of Wisconsin, but on December 9, 1965, District Court Judge Robert Tehan remanded the case to the state circuit court where trial was conducted by Circuit Court Judge and former Marquette Law School professor, Elmer W. Roller.

On April 14, 1966, only hours before the Braves opened the season with a game against the Pittsburgh Pirates in Atlanta, Judge Roller ruled that the owners of the Braves and the other National League teams had acted in “restraint of trade” and thus were in violation of the Wisconsin Antitrust Act.

As a consequence, Roller fined the defendants $55,000, plus costs, and enjoined the Braves from playing their 1966 home games anywhere other than Milwaukee, unless the National League agreed to place a new team in Milwaukee in 1967. To give the National League time to make arrangements for an expansion team for 1967, Roller stayed his judgment until mid-June, an act that allowed the Braves to continue playing in Atlanta.

The Braves owners immediately appealed Roller’s decision to the Wisconsin Supreme Court, and the court agreed to hear the case on an expedited basis. On June 9, 1966, the appeal was argued on a day on which the Braves, who never had a losing season while in Milwaukee, sat in 6th place in the National League with a record of 25-30.

With the stay extended, the Braves continued to play in Atlanta, and six weeks later, on July 27, a day that would end with the Braves having slumped all the way down to 8th place, the Wisconsin Supreme Court overturned Roller’s lower court ruling by a narrow vote of 4-3. (Interesting to note is the fact that Supreme Court Justice E. Harold Hallows, who was also a law professor at Marquette, was one of the three dissenters who would have allowed Roller to enjoin the move to Atlanta.)

The Court’s majority’s opinion was based on two different rationales, and while not all of the four justices that made up the majority embraced both theories, each embraced at least one of the two. The first conclusion was that Organized Baseball’s exemption from the federal antitrust laws most recently upheld in Toolson v. New York Yankees (1953), extended to state antitrust rules as well. In the alternative, the majority opinion found that even if Organized Baseball was not exempt from state antitrust regulation generally, the portion of the remedy imposed by Judge Roller that ordered the National League either to return the Braves to Milwaukee or else give the city a new team ran afoul of the United States Constitution’s Commerce Clause and constituted an unenforceable interference with interstate commerce. The majority did, however, confirm Roller’s finding of facts concerning the monopolization of baseball in Milwaukee.

The three dissenters disagreed with both of the majority theories and concluded instead that Congress should be presumed to have left the regulation of Organized Baseball to the states until such time that it explicitly exercised its own regulatory authority. They also maintained that the legitimate interests of the state of Wisconsin in this case took priority over the “restrictive effect on interstate commerce that might result from the enforcement of Wisconsin’s laws.”

Not willing to concede defeat after such a narrow loss, the state of Wisconsin appealed the majority’s decision to the United States Supreme Court. However, pending a decision on the state’s petition for a writ of certiorari, Judge Roller’s lower court order was dissolved, and the Braves were free to play out the season in their new southern home.

Although the Braves lost again on July 28, to fall into 9th place, 14 ½ games behind the first place Pittsburgh Pirates, the Wisconsin Supreme Court decision seemed to clear away the cloud of bad play that had hung over the team all season. After falling to 45-55 on the 28th, the “Atlanta” Braves played inspired baseball the rest of the season, and ended up with a record of 85-77, good for 5th place (out of ten teams), and within 10 games of the pennant-winning Los Angeles Dodgers who overtook the Pirates.

(The year before the Milwaukee Braves had similarly finished in 5th place with a record of 86-76, eleven games behind the Dodgers. However, the previous season had played out in a quite different manner, as the Braves were in first place as late as August 18, before finishing in a 17-27 downward spiral.)

Milwaukeeans had to wait until December 12 to learn that the United States Supreme Court had denied the state’s petition for certiorari. However, in an uncharacteristic move, the Court revealed that it was badly divided on whether or not to hear the case. Justices William O. Douglas, Hugo Black, and William Brennan, it turns out, were in favor of hearing the case, but the cert. petition was opposed by Chief Justice Earl Warren and Associate Justices Potter Stewart, John Marshall Harlan II, Byron White, and Tom Clark.

Although he had taken the oath of office as a Supreme Court justice on October 4, recently appointed Justice Abe Fortas, according to the Court’s announcement, “took no part in the review of the petition.” Consequently, the attempt to involve the nation’s highest court died as a result of the failure of a fourth justice to support the petition.

In another unusual development, Wisconsin filed a petition requesting that the Court rehear the petition for certiorari, perhaps in hopes that Fortas might be now willing to support the petition, but this request was also denied. On January 23, 1967, the litigation over the Braves departure finally came to an end when the Court simply announced that the rehearing petition had been denied and that Justice Fortas had not participated in the review.

Thus, by late January it was clear that the city of Milwaukee would be without major league baseball for 1967. When the National League announced in November 1967, that it would be adding two additional teams for the 1969 season, Milwaukee applied for one of the franchises, as did groups from Dallas-Ft. Worth, Denver, Buffalo, San Diego, Toronto, and Montreal.

However, when the two new franchises were awarded in May of 1968, the National League ignored Milwaukee and awarded teams to San Diego and Montreal. (In the minds of many Milwaukeeans, the 1968 rejection was a form of retribution for the city’s filing suit against the league back in 1965.) As a result, except for 20 Chicago White Sox games played in County Stadium in 1968 and 1969, Milwaukee remained without Major League Baseball until 1970, when Bud Selig and his associates bought the bankrupt Seattle Pilots shortly before Opening Day and moved the one year old team to Milwaukee, where they were renamed the Brewers.

The most interesting question arising out of the Milwaukee Braves litigation is why the Braves were so anxious to leave Milwaukee in the mid-1960’s. After relocating to Milwaukee in 1953 (from Boston, where the team had played since 1871), the Braves were for the rest of the decade one of the showpiece franchises of all of baseball. In a decade in which attendance at major league baseball games steadily eroded, the Braves set one National League attendance record after another.

Part of the answer to the question lies in the fact that in the mid-1960’s Atlanta simply held much greater potential than Milwaukee as a source of revenue for a Major League baseball team. Not only was it based in a larger and still rapidly growing metropolitan area, but it was also located in an area (the Southeast) without Major League Baseball. In contrast, Milwaukee was bounded by the Chicago Cubs and White Sox to the South, the Minnesota Twins to the West, Lake Michigan to the East, and the under-populated wasteland of Northern Wisconsin to the north.

In other words, Atlanta’s superior location provided greater opportunities both for live attendance and for the sale of increasingly important broadcasting rights.

However, after the wave of team relocations between 1953 and 1961, Major League owners had become clearly reluctant to permit additional teams to change cities in search of greater revenues, particularly if it would leave the vacated city without a team. The proposals of Kansas City Athletics owner Charlie Finley to move his struggling team to various cities, including Dallas-Ft. Worth, Atlanta, Louisville, and Oakland had been regularly rebuffed in the years between 1962 and 1966. It was highly unlikely that the other owners would have approved the Braves relocation to Atlanta in 1966, had the only reason to move been a desire to make greater profits.

The sad reality was that between the mid-1950’s and the mid-1960’s, Milwaukee appeared to have gone from being a hotbed of baseball attendance to a city in which the citizenry seemed no longer willing to go to the ballpark to support their team, even if the team was still a pennant contender. Although this was something of a misperception, it is easy to understand why many observers in the 1960’s adopted that view.

The following are the attendance totals for Milwaukee between 1953 and 1965, with the team’s rank among major league teams in parentheses. The totals for 1953, 1954, and 1957 represented new National League attendance records.

YEAR ATTEND. RANK

1953 1,826,397 (1st of 16)

1954 2,131,388 (1)

1955 2,005,836 (1)

1956 2,046,331 (1)

1957 2,215,404 (1)

1958 1,971,101 (1)

1959 1,749,112 (2)

1960 1,497,799 (6)

1961 1,101,441 (9 of 18)

1962 766,921 (14 of 20)

1963 773,018 (16)

1964 910,911 (10)

1965 555,584 (19)

The reasons for the fall off in attendance after 1957 are complicated, especially given the fact that the team had a winning record during each of the thirteen seasons that it played in Milwaukee.

Fan exhaustion may have been a factor. This was certainly a much mentioned explanation in the press in the early 1960’s. The Braves were located in one of the smallest markets in major league baseball, and Milwaukee’s attendance totals represented a much higher percentage of the metropolitan population than that of any other major league team in the 1950’s.

For example, in 1960, which was not one of the Braves better years attendance-wise, the team’s attendance amounted to 130% of the population of the Milwaukee metropolitan area. In contrast, the attendance of the two league champions in 1960, the Pittsburgh Pirates and New York Yankees, amounted to 81% and 11% (!), respectively. For the major league attendance leader, the Los Angeles Dodgers, the ratio was 33%. For several years in the mid-1950’s, the Braves’ annual attendance was essentially double the population of the Milwaukee metropolitan area, a phenomenon achieved nowhere else in baseball history.

Of course, not all of those who attended Braves game came from the Milwaukee area. The team, in fact, regularly drew fans from throughout the state of Wisconsin, and the establishment of the Twin Cities-based Minnesota Twins may have cost the team fans from the western and central part of the state. (The Twins drew 1.5 million fans in 1961, and a significant portion of them came from Wisconsin.)

However, the drop in attendance was also related to the team’s perceived declining performance beginning in 1960. By one measure, the Milwaukee Braves were the most consistently successful team in major league baseball history, finishing, as already mentioned, with winning records in each of their 13 seasons in Milwaukee. On the other hand, the Braves were significantly more successful relative to their competition in their first eight seasons than in their last five.

After finishing second in the National League in 1953 and third in 1954, the Braves went on a remarkable run. In 1955 and 1956, they finished second behind the Brooklyn Dodgers, and by only one game in the latter year. They then won National League championships in 1957 and 1958 (and the World Series in 1957), and then finished in a tie for first place in 1959 with the now Los Angeles Dodgers. (Unfortunately, they lost the 1959 play-off series, and thus missed a third straight World Series.)

In 1960, the Braves were in first place as late as July 24, but a 36-30 record over the remainder of the season left them in second place, seven games behind the surprising Pittsburgh Pirates. Although the Braves actually won more games in 1960 than they did in 1959, baseball fans, then as now, were much more attuned to a team’s place in the standings than to its actual win-loss record. Accordingly, attendance at Braves games began to decline noticeably in August and September 1950, especially once it became clear that the Braves were not likely to catch the first place Pirates.

Although most Braves fans expected Milwaukee to return to the top of the National League in 1961, the team finished a disappointing fourth, its lowest finish since arriving from Boston in 1953. Once again, the decline was not as steep as the standings suggested. Even though the Braves lost all-star catcher Del Crandall with a shoulder injury shortly after the season began and number three starter Bob Buhl suffered a noticeable loss of efficiency as he struggled to a 9-10 season record, the team’s win total for the season declined only by five games. Offensively, the 1961 Braves scored 712 runs, compared to 724 in 1960, and the number of runs allowed by Brave pitchers actually improved ever so slightly from 658 to 656.

The situation appeared even worse in subsequent years as the Braves finished fifth, sixth, fifth, and fifth again in their final four years in Milwaukee (even while each year winning between 84 and 88 games in a 162-game season). Attendance plummeted steadily throughout the period even though the team was usually in the pennant chase for the better part of the season.

Accustomed to having a team at the top of the standings, Milwaukeeans seemed much less interested in a team in the middle of the pack, even if the team had a winning record and continued to feature star players like Hank Aaron, Eddie Mathews, Warren Spahn (through 1964), and Joe Torre.

There is little reason to blame the Braves for allowing the team to decline by ignoring the team’s roster. Although some of the Braves stars of the 1950’s, like Red Schoendienst, Wes Covington, Johnny Logan, and Billy Bruton, disappeared from the team’s roster in the early 1960’s, the Braves roster remained a talented one. The 1962 National League All-Star team, for example, featured six Milwaukee Braves among its 25 man roster.

When necessary, the Braves were willing to take on the contracts of established players to fortify the line-up. For the 1961 season, for example, they acquired all-star infielders Frank Bolling and Roy McMillan and power hitting outfielder Frank Thomas, each of whom was a regular on that year’s team, and, with Bolling and McMillan, for several years after that. Although the team’s focus shifted to the use of players from its successful farm system after 1961, when necessary, the team was willing to acquire established Major League players like Ed Bailey, Gene Oliver, Johnny Blanchard, Billy O’Dell, Ken Johnson, and Felipe Alou.

The Braves also continued to be one of the better franchises in developing young players and by mid-decade, the team’s roster included new stars like pitchers Tony Cloninger and Denny Lemaster, shortstop Denis Menke, and outfielder Rico Carty, who just missed being the 1964 Rookie of the Year after batting .330. (Perhaps the least significant personnel move of the era was the decision to promote minor league catcher and Milwaukee native Bob Uecker to the major league team in 1962.)

The real problem for the Braves in the early 1960’s was that they had to compete against teams like the Los Angeles Dodgers, San Francisco Giants, Cincinnati Reds, and St. Louis Cardinals of that era. Baseball talent was concentrated in the National League in the early 1960’s, and an impressive number of future Hall-of-Famers were entering the prime of their careers during the Braves’ final years in Milwaukee.

The Dodgers in those years were led by pitchers Sandy Koufax and Don Drysdale, who shattered existing strikeout records, and by shortstop Maury Wills who broke Ty Cobb’s supposedly unbreakable stolen base record. The Giants, in contrast, relied on power rather than speed, with a line-up that featured Willie Mays, Orlando Cepeda, Willie McCovey, who combined for 541 home runs between 1961 and 1965 (including 226 by Mays alone), and by the three Alou Brothers, and by pitcher Juan Marichal.

The Reds of this era featured Frank Robinson, Vada Pinson, and Pete Rose, and a pitching staff that produced six 20-game winners between 1961 and 1965. The Cardinals who finished the five year period from 1961 to 1965 with a combined record seven games better than Braves included players like the aging Stan Musial and younger stars of the caliber of Ken Boyer, Bill White, Dick Groat, Lou Brock, Curt Flood, and the incomparable Bob Gibson.

The Braves experience in the 1960’s of sharply declining attendance in spite of a successful team on the field was not without recent precedent. Between 1948 and 1950, the American League’s Cleveland Indians saw their total attendance decline from 2.6 million to 1.7 million, in spite of having winning seasons each year. Moreover, in spite of never finishing lower than second place between 1951 and 1956, the Indians saw their attendance further decline from 1.7 million to 900,000. The following table illustrated the decline in attendance in the face of consistent winning seasons that occurred in Cleveland in the late 1940’s and early to mid-1950’s.

YEAR FINISH ATTN.

1947 4th 1.5m

1948 1st 2.6

1949 3rd 2.3

1950 4th 1.7

1951 2nd 1.7

1952 2nd 1.4

1953 2nd 1.1

1954 1st 1.3 (best won-lost record in American League history)

1955 2nd 1.2

1956 2nd 0.9

The conventional explanation for the decline in Indian attendance was the Cleveland fan’s frustration at the inability of his team to overcome their hated rivals, the New York Yankees, who won the American League pennant in each of the above years, except for 1948 and 1954 when the Tribe finished ahead of the Bronx Bombers.

Although the Milwaukee Braves 1961 season was hardly a failure in terms of either on the field performance or attendance, it was the first year since arriving from Boston that the team failed to turn a profit. The team’s attendance dropped by almost 400,000 fans, and the decline in attendance revenue, combined with the fact that the Braves probably had the highest payroll in the Major Leagues, converted a $500,000 profit in 1960 into an $80,000 loss in 1961. (The decision to shore up the team with veterans like Roy McMillan, Frank Bolling, Frank Thomas, and Johnny Antonelli , acquired before or during the 1961 season, had greatly inflated the team payroll, but obviously did not lead to a rebound in attendance.)

Some observers attributed the decline in attendance to a new city ordinance that took effect for the 1961 season which prohibited fans from bringing their own beer into the park. Although a number of contemporary newspaper stories report how unpopular this ordinance was with Braves fans, it is hard to believe that this explains the decline in attendance. Throughout the 1950’s, the Braves had been credited with having the “highest per capita concessions sales in the major leagues,” so it seems unlikely that having to pay for beer at the ballpark would alone cause such a steep drop in attendance.

Another explanation for the decline in attendance in 1961 was the appearance in the upper Midwest of the transplanted Washington Senators, now playing as the Minnesota Twins. Throughout the 1950’s, the Braves had been popular in western Wisconsin and Minnesota and excursion baseball buses running across the state had been a regular summer feature. The Twins did draw a million and a half fans in their inaugural season, but, again, it is hard to believe that competition from the Twins explains the substantial drop in attendance, any more than does the new restrictions on bringing beer into County Stadium.

This sudden decline in profitability led owner Lou Perini to make a number of changes after the 1961 season. To cut his payroll, the team sold the contracts of recent acquisitions Frank Thomas and Johnny Antonelli to the expansion New York Mets. (Antonelli was washed up and never pitched again, but Thomas hit 34 homeruns for the Mets the following year.) The team also introduced a new slogan “Something new in ‘62” as a way of highlighting its plans to make greater use of players from the team’s farm system, other than bringing in stars from other teams, which had been the apparent strategy in 1961.

Perini also raised ticket prices (as he had before the 1961 season) and for the first time agreed to permit the broadcast of a limited number of Braves games on television. In 1961, the Braves were the only major league baseball team that did not allow any of its games to be televised into its home market, but in 1962, Perini permitted the broadcast of fifteen road games on local television. He also made plans to install an escalator at County Stadium to make it easier for fans to reach the upper deck.

None of this worked to revive fan interest, and in spite of Perini’s increased spending on publicity, the team sold only 6,000 season tickets for the 1962 season, a total which represented a 50% decline since 1959. When the attendance dropped by another 330,000 that year, Perini in frustration agreed to sell the team to a Chicago-based group of investors for a purchase price of $5.5m. Perini, who never personally moved from Boston to Milwaukee, cited the wide-spread operation of his construction company as a reason for the sale.

There is some evidence that suggests that the new owners purchased the team with plans to move it to Atlanta already formulated. However, Atlanta’s planned new municipal stadium would not be ready until 1964 or 1965, so it was necessary to continue to play in Milwaukee whatever their intentions.

In 1963, the new owners sought to recoup part of the purchase price by expanding the number of Brave games on television, agreeing to broadcast five home games during the upcoming season, as well as another package of away games. In addition, the new owners issued and sold stock in the team, but sales were extremely disappointing.

More importantly, rumors of the new owners plans to move the team to Atlanta began to spread almost immediately, a fact that could hardly have helped attendance. Whatever the impact of such rumors, attendance was basically stable in 1963, and the Chicago-group reportedly lost another $60,000.

The situation improved slightly the following year. The 1964 Braves were one of the great offensive teams of that era, scoring over 800 runs and averaging just under five runs per game, which was better than a half run more than the eventual champion Cardinals. Unfortunately, 1964 was the year that the seemingly ageless Warren Spahn ran out of gas at age 43, and Brave pitchers compiled the second highest ERA in the National League. While they were in contention during the early part of the season, sitting in third place, one and a half games back of first place, on May 29, the team slumped in June and spent most of the season in the second division.

A last gasp effort saw the club win 14 of its final 17 games to pull within five games of the first place Cardinals (although still in 5th place). Attendance went up about 200,000 people in 1964, but the season’s total fell below the one million mark.

Throughout 1963 and 1964, rumors were rampant that the new owners planned to move the team to Atlanta. Even with increased attendance and more games on television the team incurred further losses in 1964, totaling a reported $500,000 (!). In light of continued losses, the decision was finally made to relocate the team to Atlanta in time for the 1965 season, and initially the other National League teams supported the move.

However, the Milwaukee County Board threatened to sue to enjoin the relocation of the team unless it complied with the terms of its lease which ran through the 1965 season. A team offer to buy out the lease was rejected by the Board, and in the face of a potential lawsuit, the other National League owners refused to approve the 1965 relocation plan after all. However, they did declare that it was in the best interests of the National League to permit the Braves to move to Atlanta in 1966, essentially confirming the lame duck status of the Milwaukee Braves of 1965.

Fan reaction to this resolution was one of unrepressed anger. Although the Braves were in first place for most of the 1965 season, after opening day, the 1965 season was played under a fan boycott, and barely a half million people showed up for the Braves home games that year. When the Braves did in fact depart after the 1965 season, the case of Wisconsin v. Milwaukee Braves began.

Was there anything that could have been done to prevent the situation that resulted in the Braves departure? In 1965, as a last ditch effort, Wisconsin Senator William Proxmire introduced a bill in the Senate that would have required major league teams to pool all of their radio and television income in a way similar to the then current practice in the National Football League. The bill never got out of committee in the United States Senate, but such a requirement might have reduced the lure of relocating to new territory and perhaps kept the Braves in Milwaukee.

However, short of a structural change of that nature, it is difficult to see how the situation might have been different. The real aberration in Milwaukee baseball history was the attendance figures of 1953-1959, not those for 1960 to 1965. Given its population, Major League Baseball attendance in Milwaukee in the early 1960’s, at least through 1964, was actually pretty good. Selling the team to owners with no commitment to Milwaukee in 1962, probably made it inevitable that the team would soon be relocated to a larger, more lucrative market.

On the other hand, what the Braves really lacked after 1960 was exceptional pitching. In December 1960, fearing that long-time shortstop Johnny Logan was nearing the end of the line and believing that neither of his back-ups, Felix Mantilla and Andre Rodgers (acquired from the Giants earlier in the off-season) were ready to be full-time major league shortstops, the Braves traded pitchers Juan Pizarro and Joey Jay to the Cincinnati Reds for all-star shortstop and Gold Glove winner Roy McMillan.

Although not a strong hitter, McMillan was widely regarded as the best defensive shortstop in baseball, and, teamed with newly acquired second baseman Frank Bolling (obtained in a trade with Detroit for centerfielder Billy Bruton), he gave the Braves the best defensive infield in the National League.

However, the two pitchers the Braves traded for McMillan both blossomed in 1961. Joey Jay had first appeared for the Braves in a major league game in 1953 as a 17-year old bonus baby, but had been a disappointment for most of his time with the team. Consequently, even though he had pitched well when inserted in the starting rotation at the end of the 1960 season, he was deemed expendable. Unfortunately for the Braves, Jay won 21 games with the pennant-winning Reds in 1961, tying Spahn for the most wins in the National League and finishing 5th in the National League MVP voting.

Pizarro, who was subsequently traded by the Reds to the White Sox, had shown great promise with the Braves in 1958 and 1959, but had a disappointing season in 1960. However, in 1961, given a chance to start for the White Sox, the left-hander went 14-7 with a 3.05 ERA and led the American League in strikeouts per nine innings.

In 1961, the Braves starting pitching was at best mediocre behind staff aces Warren Spahn (21-13) and Lew Burdette (18-11). Bob Buhl, with Spahn and Burdette the anchor of the staff during the World Series years, slumped to 9-10 with a 4.11 ERA and fourth starter Carl Willey finished only 6-12. Highly regarded rookie pitchers Bob Hendley and Don Nottebart combined for a disappointing 11-14 record, and mid-season call up Tony Cloninger, while posting an impressive 7-2 won-lost log, had an unimpressive 5.25 ERA.

One can never say for certain, but had the 1961 Braves featured a starting rotation of Spahn (21-13), Jay (21-10), Burdette (18-11); and Pizarro (14-7), and a shortstop parlay of Logan, Mantilla, and Rodgers, the chances are good that the Braves, not the Jay-less Reds, would have won the National League pennant that year. Even more importantly, Milwaukeeans would have returned to the ballpark at 1957 and 1958 levels; Parini would have not sold the team to the Chicago investors; and the Braves would still be playing in the Cream City.

At least it’s fun to think that that might have happened.

The saga of the Braves in the 1960’s does raise a number of questions that are beyond the scope of this essay. Why, for example, were Major League Baseball teams in the 1950’s and 1960’s so slow to exploit the economic advantages of local television broadcasting in their own immediate markets? This is particularly interesting in light of the importance of such rights in the modern era. (New York Yankee dominance is currently built on the team’s local cable contract.) Although the Braves were extreme in their refusal before 1962 to allow any of their games to be broadcast into Milwaukee, several teams, including the highly successful Los Angeles Dodgers, refused to allow the broadcast of their home games in that same era.

Finally, what would have happened if the Supreme Court had granted certiorari in Wisconsin v. Milwaukee Braves? One can only guess, but it seems likely that two of the three justices who voted to hear the case—Douglas and Brennan–wanted an opportunity to overrule the Supreme Court’s decision in the 1953 case, Toolson v. New York Yankees (1953), in which the exemption of Organized Baseball from the antitrust laws was upheld. Six years later, in their dissents in Flood v. Kuhn (1972), the two said as much. What Justice Black was thinking in 1966 is less clear, particularly given that he, with a last minute contribution from Warren, had written the court’s per curiam opinion in Toolson.

Of course, a decision overturning Toolson would have been of no immediate benefit to Milwaukee, since if the federal antitrust laws were to be applied to Organized Baseball, that would almost surely mean that they would preempt any application of the Wisconsin Antitrust Act.

The more interesting question is whether it possible that there were five justices on the court in 1967 that would have accepted the broad leeway given to state power by the opinion of the dissenting justices on the Wisconsin Supreme Court? One can never answer such questions with absolute confidence, but if such justices existed, why wouldn’t they have voted to hear the case? Moreover, as constitutional historian Michael Belknap demonstrated in his The Supreme Court Under Earl Warren, the Warren Court was generally hostile to state efforts to regulate the instrumentalities of interstate commerce.

On the other hand, the voting patterns of United States Supreme Court justices in cases involving the sports industry have been notoriously difficult to predict.

In any event, the Braves left town, but life, and baseball, managed to go on in Milwaukee without them.

Author’s note: Growing up in Pearisburg, Virginia, I became a fan of the Milwaukee Braves in 1961 for three reasons. (1) My youth league team, from which I was cut in 1961 but rejoined the following year, was called the Braves. Although our uniforms were green, I associated the Pearisburg Braves with the Milwaukee Braves from the very beginning; (2) My Great-Uncle Kester, “Ket,” Hoke was from Nitro, West Virginia, the home town of Braves star pitcher Lew Burdette, and he was a member of a group of men who went squirrel hunting with Burdette in the off-season; and (3) my oldest baseball card, which dated all the way back to 1959, was of Braves first baseman Joe Adcock who I thought looked a little bit like my Dad.

I followed the Braves intently every year in the 1960’s, and having read about the glory days of 1957 and 1958, I fully expecting them to return to the top of the National League standings. I was not particularly disappointed with the move to Atlanta in 1966 for a couple of reasons. First of all, Atlanta seemed much closer to my home town than Milwaukee, and the arrival of the Braves in Milwaukee allowed for the transfer of the Braves top minor league to Richmond, Virginia, where my cousins lived and where the top Brave farmhands would play for the next forty years.

I have only the vaguest recollection of the lawsuit Milwaukee filed against the Braves, but I do remember much better how widely the fan boycott of 1965 was covered by the press, even in the local Virginia newspapers. Consistent with “following” the Braves to Atlanta, I felt no affinity for the Brewers when they arrived in Milwaukee in 1970. Hence, my years as a Brewer fan only began when I joined the Marquette faculty in 1995. However, when I attended the special ceremony at County Stadium in 1997 honoring the 1957 World Champion Braves, I felt like I was paying tribute to a part of my childhood.

According to their announcement, here are some of its attributes:

– Instant return of a time-series plot for one or more comma-separated phrases.

– When you access the site, the default search is currently interstate commerce, railroad, deed (with plots for each of the term displayed simultaneously), as displayed below:

– You may test out any phrase of up to four words in length. Examples include: Habeas Corpus, Clear and Present Danger, Custodial Interrogation, Due Process, Economics, Unconstitutional, Property, and Privacy.

– Each of the phrases you search will be highlighted in blue. If you click on these highlighted phrases you will be taken to the full list of U.S. Supreme Court decisions that employ the selected phrase.

– Click to export the list to Excel or click on an individual case and you will be able to access this case for free.

– Advanced features, including normalization (controlling for docket size) and alternative graphing tools.

– There is available a brief slide-based tutorial as well as an academic presentation by its creators explaining the theory and design of this type of database.

As described by its creators, the database is in a “beta pre-release” phase, and they invite your feedback. Eventually they hope to expand coverage to lower courts, such as the U.S. Courts of Appeals.

Thanks to the creators of this new and free resource, which will no doubt be of significant value to legal historians, other scholars, and legal practitioners.

In the United States, zoning according to race had been found unconstitutional in the early twentieth century, but segregationists turned instead to private restrictive covenants to keep African Americans and members of other minority groups out of white towns and neighborhoods. Fortunately, the United States Supreme Court ruled in Shelley v. Kraemer (1948) that a court enforcing such a restrictive covenant was denying equal protection of the laws and therefore acting unconstitutionally. Would-be segregationists then attempted to sue private parties for breaching the covenants when they sold or rented properties to African Americans, but the United States Supreme Court said that any court entertaining these suits was also acting unconstitutionally.

In Israel, starting in the 1970s, Jewish nationalists began settling in the sprawling exurbs of northern Israel, where membership committees often decide who can buy local homes. When Jewish-only communities emerged in the Negev and in Gallilee, Arab citizens sued, arguing they were being excluded. The Israeli Supreme Court barred the exclusion, asserting that “equality is one of the foundational principles of the State of Israel.” However, just this year the Knesset in effect overruled the judiciary by enacting a law that allows local membership communities to reject potential residents who did not fit the “social-cultural fabric.”

Both extended controversies suggest that equality is impossible if citizens of different races and religions are not free to live where they want. One’s home and one’s ability to choose it are a base for one’s sense of equality, not in the Blackstonian sense of each man’s home is his castle but rather as a starting point for civic self-actualization. How can one understand oneself as equal without the same freedom as others to decide where to live?

I think it’s helpful to appreciate, however, that the basic problem of partisanship trumping merit as a determinant of judicial appointments is anything but new. Recently, I was reading Gerald Gunther’s biography of Learned Hand and came across a reminder of how the appointments process has long been an overwhelmingly political affair, even for lower-court judgeships. Gunther explains that when Jerome Frank’s death in the late 1950s left vacant a seat on the Second Circuit, advocates from opposing political orientations lobbied heavily for their favored candidates to receive the next appointment. Many Republicans pushed for the selection of Leonard Moore, the U.S. Attorney for E.D.N.Y., while Democrats favored Irving Kaufman, the federal judge who had presided over the espionage trial of Julius and Ethel Rosenberg. Moreover, many on both sides appear to have viewed the choice between Moore and Kaufman as essentially political rather than merit-based. One of the significant arguments made in favor of Kaufman, for example, was that elevating him to the Second Circuit could function as a way for the President and Senate to signal their approval of his handling of the Rosenberg trial, of which leftist organizations had been fiercely critical.

The debate left Judge Hand extremely dissatisfied with the way in which it downplayed or left out considerations of merit. To Felix Frankfurter, a longtime friend, Hand wrote:

Did you see today’s Times and the reasons said to be put forward in Washington for moving up Kaufmann [sic]? “To show the President approved his decision to execute the Rosenbergs.”

Oh, oh, oh! How low people can get! I don’t mean [Kaufman]; he didn’t start that, I believe; but the Swine, the Swine, the Swine!!

Hand later repeated to Frankfurter that he was “‘thoroughly sick of [his] government, especially [with respect to] the appointment of judges,’” even adding, “‘What a mistake it was to let the Senate in on any appointments anyway! Democracy! How many crimes are committed in thy name!!!’”

Hand’s statements were obviously hyperbolic, but now seem to reflect a sentiment held by many observers of the appointment process today. That Judge Hand critiqued the same problem fifty years ago shows that it is not a new one, and suggests that its source must lie deeper than the contemporary divisiveness of American politics.

Cross-posted at PrawfsBlawg.

The “location quotient” looks at the place in which the job is performed and not the jurisdiction in which the job holder is domiciled.  Hence, a lawyer who lived in Maryland, but practiced in the District of Columbia would be counted as a D.C. lawyer.

With a current “location quotient” of 0.65, Wisconsin is tied with Alabama for 40^th place among the 51 states and the District of Columbia.  The only states in which lawyers are less “common” are North Dakota (0.40); South Dakota (0.43); Iowa (0.47); Indiana (0.54); Nebraska (0.58); Tennessee (0.59); North Carolina (0.59); Wyoming (0.59); and Mississippi (0.61).

The per capita number of lawyers in Wisconsin is significantly lower than that for its neighboring states of Michigan (0.77) and Minnesota (0.88), and it pales in comparison to Illinois (1.18).

Lawyers are, not surprisingly, most common in the District of Columbia which has a location quotient of 10.05.  Next on the list are New York (1.77); Delaware (1.49); Florida (1.32); Massachusetts (1.21); New Jersey (1.20); and Illinois (1.18).

As I pointed out a number of years ago in an article published in the Wisconsin Law Review entitled “The Wisconsin Lawyer in the Gilded Age,” there is nothing new about this phenomenon.  Wisconsin had fewer lawyers, per capita than most American states in the 19^th century and the pattern has persisted into the 21^st century.  One might be tempted to think that the diploma privilege had something to do with it, but the number of lawyers per capita is lower in Iowa than it is in Wisconsin, even though Iowa did away with the diploma privilege in 1884. (Iowa had followed Wisconsin’s lead and had adopted the diploma privilege for the state university law school in 1873.)

The full set of data compiled by the Bureau of Labor Statistics can be found by clicking here.

This statement is objectively false. The recall provisions contained in the Wisconsin State Constitution were never intended to be limited in such a fashion. The original design of the right of recall is, in fact, intended to permit voters to recall elected officials for virtually any reason so long as the procedural mechanisms of the State Constitution are followed.

For present purposes, I take no position on whether a recall of Governor Walker based upon his actions since taking office is a good idea. However, Governor Walker’s supporters contend that the original “design” of the recall provisions is limited to circumstances where there is evidence of criminal conduct or a serious ethical violation. In making such claims, Walker’s supporters are attempting to cast doubt on the underlying legitimacy of the proposed recall drive, rather than arguing that the recall is unwise. Assuming that a recall petition against Governor Walker is filed on November 15, it is therefore worthwhile to ask whether the use of the recall power in this instance would be consistent with the original design of Article XIII of the Wisconsin Constitution. The answer to that question is “yes.”

A comprehensive history of the Recall Movement by Rod Farmer was published in 2001 in the New England Journal of History, entitled Power to the People: The Progressive Movement for the Recall, 1890-1920. Much of the following discussion draws upon the Farmer article, unless otherwise noted. The article is hosted on the website of the Initiative and Referendum Institute at the University of Southern California.

Farmer’s article makes it clear that the recall power was always intended to be extremely broad in practice:

A 1915 political science college textbook explained the recall this way: “In order to complete popular control over . . . government the recall has been adopted . . . [and] . . . it allows the voters to retire officials for any reason whatever which seems satisfactory to the electorate.” The recall rested upon the assumption that government officials should represent the direct will of the citizens.

(Farmer, p. 3)

Notable early advocates of the recall power in Wisconsin certainly agreed that the recall power should be construed broadly. For example, campaign literature put out by Senator Robert La Follette stated flatly that political candidates who campaigned on one platform (say opposition to the tariff), but who governed differently after they were elected, should be subjected to recall:

Senator La Follettte has favored and now favors the recall.

By the recall, a faithless public official may be retired without waiting for the evil to be fully consummated.

Under such a law, the public official will no longer betray his constituency.

Party platforms will mean party performance.

Downward revision of the tariff in the platform will not mean upward revision in accomplishment. The official will no longer rely on the people forgetting before election day rolls around. He will face the immediate dishonor he deserves.

(Shall The People Rule?, La Follette Campaign Literature)

The broad nature of the recall power reflects its role as the intended remedy for a broken democracy. A desire to reform the democratic process in America lay at the core of the Progressive Movement in America. Progressives wanted to strengthen the control of the people over the levers of government, while reducing the influence of the special interests, and the recall power was one way of accomplishing this goal.

Farmer reminds us that the term “Progressive” was an umbrella designation that included persons with many diverse motivations: Protestants demanding social justice for the poor, religious moralists opposed to alcohol consumption, and “good government” political reformers. (Farmer, pp. 4-5).  Many contemporary critics like to attack the Progressives for their economic policies. However, only some Progressives focused on economic reforms. The uniting thread among the various factions within the Progressive Movement was the view that government in the United States had become systematically corrupt. Their common remedy was to install mechanisms into the very structure of government that would increase the role of popular democracy.

Progressives exalted the federal and state constitutions, with their delegations of authority to elected legislators and executives, as the only legitimate vehicle for making and enforcing the law. However, when they looked at how the constitutionally created organs of government were actually being operated during the late nineteenth and early twentieth centuries – as opposed to how they were designed to operate — they saw that the real power of government was being exercised behind the scenes, and not by the people’s elected representatives. Legislative policy choices were being made in back rooms, out of the public eye, by political party bosses and corporate interests. Ready-made legislation was often brought to the floor of the legislature for quick approval, before the public was informed of the content of the bill or given an opportunity to comment. While lobbyists had a seat at the table, ordinary citizens were left with no power to influence policy. [This secretive union of corporate lobbyists and political interests, and the exclusion of public participation in the drafting of legislation, is echoed in the current day activities of the American Legislative Exchange Council (ALEC)].

Progressive critics railed against the “invisible government”: the corrupt union between partisan party bosses, intent on maintaining their own power, and corporate leaders acting in their own narrow self-interest. Senator Elihu Root , addressing the New York Constitutional Convention of 1915, went so far as to argue that the language of New York’s constitution was irrelevant because “machine” politicians Roscoe Conkling and Thomas Platt had effectively ruled the state for decades:

We have spent many days in discussing the powers of this and that and the other officer. What is the government of this state? What has it been during the forty years of my acquaintance with it? The government of the Constitution? Oh no; not half the time, or half way . . . From the days of Fenton and Conkling, and Arthur and Cornell, and Platt, from the days of David B. Hill, down to the present time the government of the State [of New York] has presented two different lines of activity, one of the constitutional and statutory officers of the State, and the other of the party leaders . . . They call the system . . . invisible government. For I don’t know how many years Mr. Conkling was the supreme ruler in this State; the Governor did not count, the legislatures did not count; comptrollers and secretaries of state and what not did not count . . . Then Mr. Platt ruled the State; for nigh upon twenty years he ruled it. It was not the Governor; it was not the Legislature; it was not any elected officers; it was Mr. Platt. And the capitol was not here; it was at 49 Broadway: Mr. Platt and his lieutenants . . . The ruler of the State during the greater part of the forty years of my acquaintance with the State government has not been any man authorized by the Constitution or by the law.

(quoted in Henry Steele Commager, The American Mind, pp. 313-319)

Progressives wanted to place political power back in the hands of the people through three types of amendments to state constitutions: the initiative, the referendum and the recall. All three of these reforms were considered to be tools by which the electorate could ensure that government remained transparent and inclusive:

Within a modern democracy, the ultimate normative objective is mass political inclusion: ‘[E]very individual potentially affected by a decision should have an equal opportunity to influence the decision . . . [C]ollective actions should reflect the purposes decided under inclusive processes.’ These sentiments were amply on display during the Populist and Progressive eras in American politics, as reformers extended the voting franchise, instituted direct primaries, and increased the number of elective offices; anything less than these reforms, it was said, would imply “corruption.” The principle of democratic inclusion remains a touchstone today. Under this much broader conceptualization of political corruption, many common activities in a system of liberal representation – backroom deal-making and logrolling, the mobilization of particular factions to further one’s political causes, brazen appeals to partisanship, for example – might be called into question.

(Redlawsk & McCann, Popular Interpretations of ‘Corruption’ and Their Partisan Consequences, 27 POLITICAL BEHAVIOR 261 (2005), at 264)

Other Progressive Era reforms included efforts to extend the franchise and widen the voting base, the successful push for the direct election of Senators by the people, and transparency provisions such as “sunshine” laws that required the prompt public notice of new laws and guaranteed public access to legislative proceedings. The elimination of the patronage system, whereby government workers were often hired and fired based upon political affiliation, was also an important element of Progressive Era reform. It is worth pausing for a moment in order to consider how many of these “good government” reforms are presently in the process of being rolled back, through voter ID laws, reduced public access to the legislature, and loose interpretations of public notice.

Far from being a radical invention of the Progressives, the broad power to recall public officials has venerable roots in American history. One early antecedent was the practice, common in the colonial era, of town meetings whereby residents met in order to issue instructions to the town’s representative in the legislature. While the representative’s instructions were sometimes labeled advisory, in many towns the instructions to the representative were considered mandatory. The widespread use of instructions in the colonies during this period paralleled reform efforts underway in England at that same time that sought to make members of Parliament subject to mandatory instructions from their constituents.

After the Revolution, the Articles of Confederation provided that the states had the power to recall their representatives to the national government, although this recall power was lodged in the state legislatures and not directly in the hands of the electorate. Nonetheless, when the United States Constitution was drafted, many delegates at the Constitutional Convention objected that the new Constitution did not provide the same recall provisions for congressmen as did the Articles of Confederation. Luther Martin, in particular, feared that the six year term of Senators was too long and would leave Senators unaccountable to the people unless a recall provision was added to the text.

The federal Constitution of 1789 ultimately did not contain any recall provisions, nor did it provide for the right of state legislatures to issue mandatory instructions to their federal representatives. The absence of these provisions reflects the desire on the part of the drafters to give federal representatives the freedom to promote national interests without being beholden to local pressure. However, the desire to advance these federalism principles in the United States Constitution should not be read as a rejection of the use of the recall power when it is exercised at the state level.

In the nineteenth century, first the Populists and then the Progressives picked up on the idea of the recall as a way for the public to hold legislators accountable. The Recall Movement gathered strength after Los Angeles became the first major U.S. city to include a recall provision in its city charter in 1903. In 1908, Oregon became the first state to include recall provisions in its constitution. Wisconsin was one of the last states to adopt a recall provision in 1926, by which time the Progressive Movement had run its course.

Supporters of the recall power argued that its foundation lay in the sovereign power of the people. They assumed that the role of the elected official was the role of a delegate, whose duty was to give effect to the opinion of his district and not to exercise his own judgment. Far from being radical, supporters thought that the recall was necessary in order to “restore popular government to the people by destroying the control of private influences over legislative bodies” (Farmer, p. 14, quoting a 1911 author). Political history in our country has always recognized the primacy of the sovereign people, but what had changed in the opinion of the Progressives was the growth of corporations and special interests that had captured the legislature.

Opponents of the Recall Movement resisted state constitutional amendments on the grounds that the recall power would lead to political instability. They charged that constant recall elections would lead to a form of “perpetual warfare” between political parties. They also charged that recall supporters were socialists who were engaged in class warfare against the educated, property-holding portion of the population. (Farmer, p. 20). In Wisconsin, as well as in many other states, the voters rejected these arguments in opposition to the recall power and proceeded to make the right of recall a part of the fundamental law of the state.

After arguing that the language creating the recall power was too broad, and too radical, those who had opposed the adoption of the recall power modified their argument. Now they claimed that the same language that they had previously criticized for being too broad was, in fact, intended to be construed narrowly, so that recall elections would only take place in those rare instances when candidates had committed serious criminal or ethical transgressions.

An examination of statements by leading Progressive politicians refutes the idea that the recall power was intended to be limited to specific criminal or ethical violations. Theodore Roosevelt, for example, argued that elected officials were held to a higher standard than mere compliance with the letter of the law:

There are not a few public men who, though they would repel with indignation an offer of a bribe, will give certain corporations special legislative and executive privileges because they have contributed heavily to campaign funds; will permit loose and extravagant work because a contractor has political influence; or, at any rate, will permit a public servant to take public money without rendering an adequate return, by conniving at inefficient service on the part of men who are protected by prominent party leaders. Various degrees of moral guilt are involved in the multitudinous actions of this kind; but, after all, directly or indirectly, every such case comes dangerously near the border-line of the commandment which, in forbidding theft, certainly by implication forbids the connivance at theft, or the failure to punish it.

(Theodore Roosevelt, The Eighth and Ninth Commandments in Politics, OUTLOOK, May 12, 1900)

Similarly, when Progressives spoke of pervasive government “corruption,” they did not understand that word to refer to violations of the criminal code. Rather, “corruption” referred to the failure of a government official to put the public good ahead of special interests. In this regard, the Progressives were merely using the word the same way that it was used by the Framers of the Constitution:

The term ‘corruption’ generally was understood [by the Framers] . . . to mean not merely theft . . . . but the use of government power and assets to benefit localities or other special interests (in essence, ‘factions’). . . . Corruption existed when a narrow benefit was sought and received – the mental attitude and approach towards government was intrinsic to the definition.

Moreover, the activities included could be legal or illegal, so corruption clearly is not attached to a set of violations of the criminal law. [Governeur] Morris explicitly said that the corruption concern encompassed lawful abuses of power, not merely unlawful abuses or ‘usurpations.’

(Zephyr Teachout, The Anti-Corruption Principle, 94 CORNELL L. REV. 375-376 (2009))

However, Progressives believed that government corruption had increased significantly since the founding of our nation, stimulated by corporate spending on political activity. Theodore Roosevelt made this point extensively in his famous “New Nationalism” speech. While the speech should be read in its entirety, for present purposes it is sufficient to quote Roosevelt’s conclusion about the manner in which corporate money diminishes the ability of the general public to exercise control over the democratic process for the common good:

The true friend of property, the true conservative, is he who insists that property shall be the servant and not the master of the commonwealth; who insists that the creature of man’s making shall be the servant and not the master of the man who made it. The citizens of the United States must effectively control the mighty commercial forces which they have called into being.

There can be no effective control of corporations while their political activity remains. To put an end to it will be neither a short nor an easy task, but it can be done.

We must have complete and effective publicity of corporate affairs, so that the people may know beyond peradventure whether the corporations obey the law and whether their management entitles them to the confidence of the public. It is necessary that laws should be passed to prohibit the use of corporate funds directly or indirectly for political purposes; it is still more necessary that such laws should be thoroughly enforced. Corporate expenditures for political purposes, and especially such expenditures by public-service corporations, have supplied one of the principal sources of corruption in our political affairs.

If some modern readers find Roosevelt’s broad usage of the word “corruption” to be confusing, that may be because a handful of Supreme Court Justices have recently embarked upon a campaign to re-define that word. Intent on advancing the non-originalist idea that corporations have a right of free speech under the First Amendment, these judges have argued that the word “corruption” can only be understood to apply to acts of bribery involving elected officials, where some sort of quid pro quo of cash for specific performance is alleged to have taken place.

As summarized by Professor Zephyr Teachout, “[i]n a handful of cases, and for a handful of Justices, corruption is basically coextensive with the criminal law statutory definition of bribery and ‘political corruption’ – a view coming out of some (probably) careless writing in [Buckley v. Valeo].” (Teachout, p. 388).  In Buckley, the majority opinion of the Court had mentioned the quid pro quo form of political bribery as one type of corruption. Later, in the Citizens Against Rent Control case, Chief Justice Burger would cite Buckley as holding that bribery was the only form of corruption that justified laws restricting free speech in the context of political campaigns. Justice Kennedy picked up on this point in McConnell v. FEC. By the time of the Citizens United case, the idea that corruption could only be defined in the narrow sense of bribery of elected officials became one of the cornerstones in an opinion by five Justices that struck down campaign finance laws that restricted corporate spending. (Teachout, pp. 388-389).

It is a mistake to read the pervasive denunciation of corruption employed by the advocates of the recall power in the more limited sense that these current day conservative judges employ. To limit the word’s meaning in such a fashion is an anachronistic attempt to define deviant conduct downwards. Critics of the Supreme Court’s campaign finance decisions have called on the Court to abandon these efforts and return to the original meaning of the word corruption. However, regardless of the merits of current day attempts to re-define the word, it is clear that the drafters of the Wisconsin recall provisions understood corruption to encompass any conduct by public officials that advanced the objectives of special interests (especially corporate interests) at the expense of the common good.

Not surprisingly, the actual text of Article XIII of the Wisconsin Constitution reflects the history outlined above. In a previous post, I listed the many reasons why the text of the Wisconsin Constitution itself is inconsistent with any limitation of the recall power to instances of criminal or ethical wrongdoing.  First, the right of recall in Article XIII, Section 12, is guaranteed by the text without any limitation on the use of that power. We should not read a narrow limitation into the text without any language to support such a limitation. Second, instances of “corrupt conduct” or the commission of crimes and misdemeanors by elected officials is specifically made subject to the separate impeachment provisions of Article VII. We should not read a general grant of power to be duplicative of a more specialized constitutional provision, because it is improper to read any constitutional provisions as surplusage.

Third, the differences between impeachment and recall are significant. Impeachment, for serious offenses, can occur quickly. Recall elections take a long time, and seem ill suited as a means of removing serious transgressors. By the same token, impeachment is a vehicle whereby legislators un-do the choice of the electorate, so it is appropriate to limit the impeachment power to serious offenses. In contrast, recall is the action of the electorate to un-do its own choice, thereby making a lower standard for removal appropriate. Finally, serious allegations of wrongdoing trigger due process rights to defend oneself, which is the case in an impeachment proceeding. The lack of a vehicle for the recalled official to defend himself in Article XIII indicates that the recall power is not dependent upon any allegation of wrongful conduct.

It is a common technique of textualists to take language out of context in order to construct an alternative meaning wholly divorced from the original intent of the drafters.  Fortunately, the text of the Wisconsin Constitution is sufficiently clear on this matter as to preclude any such mischief here.

To be clear, it is perfectly appropriate to argue that the recall power contained within Article XIII of the Wisconsin Constitution is broadly available, but that it is a power best reserved for extreme violations of the public trust. This would be a statement concerning the circumstances under which a broad recall power should be used, as opposed to an assertion that it is improper to use the power at all. It is equally valid to make the opposing argument, which is that the recall power (and the mere threat of a recall) plays an important role in limiting potential abuses by those who exercise the public trust, and that therefore the electorate should utilize that power freely. This post is intended to clarify the broad scope of the recall power in general, not the wisdom of its use.

People who argue that the recall provisions of the Wisconsin State Constitution were designed solely for the removal of elected officials who violate the criminal law, or who transgress formal ethical rules, are engaged in the worst form of historical revisionism. In so doing, these individuals degrade the public debate over the utility of recall elections, by denying the public a common basis of historical fact by which to measure current events.

Constitutional provisions must be given their intended effect, and should not be interpreted out of existence by people who don’t like them. This requires judges, lawmakers and pundits to respect those Progressive elements that have been written into the Wisconsin Constitution because, as much as any other constitutional provision, they are the law of the land.

Photo: Voters submit petitions in 1910 to recall Seattle Mayor Hiram Gill. Gill was elected on an “open town” platform, and his administration tolerated widespread prostitution and gambling operations in the city. Despite being upfront about his policies, a recall drive was instituted against him. The grounds listed in the petition to recall Gill were 1) gross incompetence, 2) refusal to enforce the ordinances of the city, 3) lack of impartiality in appointing men to public office, and 4) allowing Seattle to become a home for criminals. See Mansel Blackford, “Reform Politics in Seattle During the Progressive Era,” 59 THE PACIFIC NORTHWEST QUARTERLY 177 (1968). Gill lost the recall vote, subsequently switched positions to become a “law and order” candidate, and was elected Mayor of Seattle again in 1914.

John was a man of diminutive stature, some attributing that to poor nutrition as a child.  But he was strong, sinewy, and lithe — physical attributes he proudly put to good use working his day job as a sanitation engineer (garbage man) for the City of Gordo, Alabama.

As John drove into town he had no reason to suspect the fate he was about to face.  As was his regular practice, John and his coworker rode on the back of the Gordo garbage truck doing their regular route.  They hopped off at each house to empty the trash and then get back onto the truck to ride to the next block.

As the truck rumbled down the uneven streets of Gordo, the unexpected happened and John’s number was called. 

The rear Eaton axle of the Ford garbage truck suddenly split, sending the rear wheels cascading wildly down the street.  The back of the truck hit the street with such force that John was catapulted high into the air, landing on the side of the truck on his way down.  The force of the impact was so great that it broke John’s ribs, one of which pierced his heart, killing him instantly.

Although neither John Luther nor Grace Bryant were married or had any children, they had a large passel of nieces and nephews who suddenly remembered their deep and abiding affection for Uncle John and Aunt Grace.  Indeed, more relatives than they ever knew they had came forth grieving and mourning poor old John’s tragic demise.

They soon made their way to a big-city lawyer in Birmingham who immediately saw the value of bringing a product liability wrongful death suit.  The mourners began to feel better and their affection for Miss Grace, the plaintiff-executrix of John’s estate grew each day.

Although John was killed instantly and therefore had no conscious pain and suffering and was at an age nearing retirement with only meager wages and no real future loss of income, the lawyer for the grieving relatives recalled that Alabama law allows only punitive damages for wrongful death cases on the theory that life is too precious to be measured by mere compensation.  Therefore, the question was not how much John Luther Bryant suffered or what his earning capacity might be, but rather, how much money defendants had and how much of their net worth would be enough to punish them for taking John’s life.

After all, many Alabama wrongful death cases had produced multimillion dollar verdicts.  With those statistics firmly in mind, the Bryant family lawyer set about to evaluate the case, and decide whom to sue.  He settled on my clients, Ford Motor Company and Eaton Corporation, and also CSX (formerly known as U.S. Steel Corporation), who made the steel for the axle which split apart, along with a few local repair facilities to prevent removal based on diversity.

To prove his case, the plaintiff’s lawyer retained a trial-tested forensic metallurgist from Auburn University, who carefully examined the steel and (to no one’s surprise) found that it was defective.  However, he opined at several depositions that the cause of the failure was “trashy steel,” thereby implicating its manufacturer, CSX which had failed to manufacture it to Eaton’s specifications.  He also opined that Eaton and Ford may not have been diligent in fully inspecting the steel and not warning about the potential that this axle, like any product, could fail.

The lawsuit was filed and, after discovery and some motions, was set for trial in Carrollton, Alabama, the seat of Pickens County.  Carrollton is a quaint small town nestled in rolling hills about 40 miles west of Tuscaloosa (home of the University of Alabama) and near the Mississippi state line.  It is a town which seems frozen in time.  Carrollton is famous for its courthouse and also for being the home of the then-manager of the Boston Red Sox, Butch Hobson, who had been the starting third baseman and quarterback for the Alabama Crimson Tide and played many years for the Red Sox.  Butch had two sets of wives and kids in Carrollton, where he was kept very busy devoting himself energetically to his two families and local causes during the few months of the year when he was home.  But it was the courthouse that caught my attention because of the haunting legend I had heard about “The Face in The Window.”

To learn more about this famous legend, I checked local records, talked to Alabama lawyers, and did some research on the history of what is probably the best-known courthouse in the State of Alabama.  A comparatively small structure of Italianate architecture popular in the late 1800’s, the courthouse, like so many wonderful old courthouses, sits in the center of the town square, where people gather to stroll and sit on benches enjoying snacks, playing checkers, and just taking in the scene.

I retained local lawyer W.O. “Buddy” Kirk Jr., one of only five lawyers in Pickens County.  I quickly learned from Lawyer Kirk the story behind the “Face,” which I thought was an interesting tale, but likely one that was embellished over time.

To put the story in perspective, it is important to understand some Pickens County history.  The County came into existence by an act of the Alabama Legislature in 1820.  There is apparently some confusion and debate concerning who the County is named for.  Some claim that it honors Israel Pickens, the second elected governor of Alabama, who served from 1821 to 1825.  There is some doubt about that since his service actually started after the County was created.  Other historians say the County was named for General Andrew Pickens of South Carolina, based in part on the fact that many people from South Carolina migrated to the Pickens County area in the early 1800’s.

It is not clear when the first courthouse in the County came into existence, although some early history seems to indicate that there was a “little log courthouse” which was located in a town then called “Pickens Courthouse.”  It was later changed to Pickens and then became known in 1835 as Pickensville.  The Town of Pickensville, Alabama, still exists today, but the courthouse is located, as previously pointed out, in the town of Carrollton.

Carrollton is named for Charles Carroll of Carrollton, Maryland.  Carroll, who died in 1832, was famous for being the last surviving signer of the Declaration of Independence.  He was a proud patriot who always insisted on signing his name “Charles Carroll of Carrollton” so that the British would not confuse him with any other person with the then common last name of “Carroll.”

Although there are not any viable records to determine the date when the first courthouse was constructed, its destruction is well documented.  Now we return to the topic of my first two blogs, the Civil War.

On April 4, 1865, just days before General Lee surrendered at Appomattox Court House, Union Army General John T. Croxton marched through Alabama into the City of Tuscaloosa where his troops burned the University of Alabama to the ground, leaving only a solitary chapel which stands on the campus to this day.  A detachment of Croxton’s army under the command of Captain William A. Sutherland marched 40 miles to Pickens County to gather information, as well as to serve as a decoy for Croxton, whose main purpose was to destroy the railroad between Demopolis, Alabama and Meridian, Mississippi.

Union Forces succeeded in capturing nine Confederate scouts in Carrollton and then proceeded, for reasons never made clear, to burn the commissary depot and the courthouse.  To this day the good people of Pickens County claim, with compelling logic, that burning their cherished courthouse served no useful military purpose.

But the resilient citizenry rallied and despite the financial woes of the post-war Reconstruction era managed to raise $20,000 to build a new courthouse.  People were enormously proud of this accomplishment and took great pride in their new courthouse.  Then tragedy struck.

On the night of November 16, 1876, the courthouse caught on fire and burned again.  Arson was strongly suspected, but there were no witnesses and no real evidence.

Once again the people of Pickens County stepped up to the challenge and dug deep to rebuild the courthouse.  The cornerstone was laid on July 4, 1877, but trials did not begin until March, 1878.  The courthouse was a three-story structure that had no jail, but did have an attic or garret on the third floor.

In January 1878, before trials or hearings were held, somebody uncovered information about a fugitive who confessed to a number of crimes in Pickens County, including burglaries and arsons.  In his confession he implicated an African-American named Henry Wells as being responsible for burning the courthouse.  Deputies were sent to arrest Wells and wounded him at least twice in the process.  He was returned to Carrollton on January 29, 1878.  The next day, he allegedly signed a confession of questionable validity, given the fact that he obviously was illiterate and just placed his “mark” for his signature.  He did admit to being in the courthouse, but never specifically said that he had set any fires.

Emotions ran high and once townsfolk learned that Wells had been captured and was being held by the local sheriff, a lynch mob formed.  Since there was no jail, the sheriff put the wounded Wells upstairs in the attic for his own protection.

As the mob formed on the street below, legend has it that as the traumatized Wells was looking out the window of the attic a lightening bolt from a massive thunderstorm struck the courthouse and etched Wells’ anguished face on the window pane.

It is not clear whether Wells ultimately was hung or died at the hands of the lynch mob or from his wounds.  It is known however, that in February 1878 the County paid $5 for a coffin for Wells and another $2 to dig a grave.  Wells was gone but his legacy has lived on haunting the courthouse to this day.

Since that date, local historians point out that all the other windows in the courthouse, except the one with Wells’ face, have been broken during tornadoes or violent hail storms.  Engineers from the University of Alabama, Auburn, and other places have sought to remove the image by using soap, gasoline, and all manner of other solvents, all without success.

And so, armed with that colorful history, I arrived in Carrollton in March 1992 and made my way to Lawyer Kirk’s office.  Before parking, I drove around the square and looked at the courthouse from all different angles without being able to see the fabled image, an effort which confirmed my skepticism.

When I entered the office of my affable and talented local counsel, I told him of my unsuccessful efforts.  Buddy nodded knowingly and then instructed me that in order to see the face I would need to go stand under the tree where the lynch mob was forming and look up.  I followed his instructions and, sure enough, there on the third floor was a large arrow pointing at a window pane.  The sun was not shining on it, clouds or shade had darkened that side of the courthouse.  An anguished African-American face was indeed clearly visible on the window pane.

The trial took place beginning on March 24, 1992.  The jury we picked was racially mixed.  Some wore bib overalls and simple home-spun cotton dresses.  The courtroom evoked memories of Spencer Tracy as Clarence Darrow in “Inherit the Wind” and Gregory Peck playing Atticus Finch in “To Kill a Mockingbird.”

Each day during the trial, Lawyer Kirk’s wife would come to his office to set the table in the conference room and serve us a wonderful lunch.  When we would leave the office in the morning for court and return again in the afternoon, there would be a line of local citizens, carrying baskets of eggs, dressed chickens, vegetables, fruit, and other produce offered in payment for Lawyer Kirk’s services.  Each of them bowed reverently as they made their offerings to their beloved “Lawyer Kirk.”  Although there are many advantages to practicing in a big city law firm, I get goose bumps whenever I think about those simple country people and reflect on what a great privilege it is to be a lawyer.

One day, as we returned to court following our sumptuous noon repast, we were intercepted by the plaintiff’s lawyer, who reported that he had settled with our co-defendant, CSX, and that (surprise, surprise) the expert he was presenting that afternoon had now changed his opinion and was going to testify that the sole proximate cause of the failure was Eaton’s negligent design.

Despite the peaceful surroundings of the courthouse and the comfortable lunch I had enjoyed, I was, to put it mildly, not happy.  I asked to see the judge and proceeded to unleash my volatile Irish temper, which I had masterfully held in check up to this moment.  I argued with a mixture of passion and outrage, creating a heat which the judge said probably had not been seen since the courthouse burned down for the second time.

In those portions of my presentation which were moderately coherent I reminded the court that I had deposed this despicable hired gun expert not once, but on four separate occasions.  I picked up each of the four deposition transcripts, one at a time, slamming them on the table.  The court reporter had to ask me to slow down because she was not used to “the way you Yankees talk like Gatling guns.”  I apologized as best I could given my extreme state of hyperventilation and admitted how upset I was.

Judge Clatus Junkin nodded his head and said “Ok, I can sure see that, and I understand how y’all feel.”  He then asked me if I had any motions as opposed to emotions.  I accepted his invitation and moved to preclude the expert from testifying on the grounds that it was too late for him to change his opinion and to allow him to do so at the 11th hour would be an outrageous miscarriage of justice.  After some further argument the judge urged the plaintiff’s counsel to consider accepting the $30,000 settlement offer which was still on the table.  Plaintiff’s counsel said his bottom line was $5 million”  Judge Junkin then granted my motion.

He then asked if I had any more motions.  I did — and said: “Since Your Honor has now excluded this witness from giving any opinion that would support a finding of liability against my clients, I move that he not be allowed to testify at all since he cannot provide any helpful or probative evidence.”  Judge Junkin granted that motion as well and told plaintiff’s counsel to call his next witness.

The stunned plaintiff’s lawyer was then forced to call all of his remaining witnesses over the next two days of trial.  One of them was Miss Grace Bryant herself, now in her late 80’s.  She squinted out from her wheelchair at the large crowd of nieces and nephews and newly proclaimed relatives and answered questions on direct examination in slow halting tones.

On cross-examination I decided to kneel down on one knee next to her wheelchair.  I asked her a few questions from this position and the following colloquy occurred:

Q. “Miss Grace, do you remember from your deposition that you told us that y’all had never been to Court?

A. Yes.

Q. And y’all told me that your daddy had given you some good advice, didn’t you?

A. Yes.

Q. What advice did he give you way back when you were just a little girl?

A. He told me whatever y’all do, don’t ever go to the courthouse.

Q. Now as you go on into your 80’s, what do you think your daddy would say if he saw you testifying here in this courthouse today?

A. I suspect he’d say I’m a damn fool.

Q. Thank you Miss Grace, I have no further questions for you.”

Plaintiff’s counsel was not a happy man.  He wore a khaki suit and in the warmth of a late March day in an un-airconditioned room. His perspiration stained through his suit, running all the way down from his armpits to halfway above his waist.  When he would raise his hands in objection or to make a point, I would move the court that to protect the lawyers, jurors, and spectators, he should instruct the lawyer to keep his arms at his side!

That motion was denied, but the next one I made wasn’t.  I moved at the close of plaintiff’s case for a directed verdict, and it was granted.

After a wonderful dinner in a delightful restaurant in Aliceville, Alabama, I posed for pictures with my trial team in front of the “Haunted Courthouse” the next day (see below) and then headed for the Birmingham airport.

I have not been back to beautiful Carrollton in the almost 20 years that have passed, but that experience is etched indelibly in my memory just as the face is etched on the window.  I think about it often, especially when I stop at the chapel on the University of Alabama campus and then drive out of town chanting “Roll Tide Roll!”

Lee wanted to seize the momentum by moving into Northern territory through Maryland and Pennsylvania. His hope was to catch the Union army off guard and also to move the war away from the impoverished fields of Virginia and other parts of the South and take advantage of the fertile fields and plentiful livestock in Maryland and Pennsylvania.

Stonewall Jackson’s old 2nd Corps., now under the command of General Richard Ewell, who had lost a leg at Second Bull Run, marched into Pennsylvania headed toward Carlisle, while another army under the command of Major General Jubal Early, marched toward York and Harrisburg, which was the railroad center for the North. The Confederate Army continued to push North into Pennsylvania, using livestock, food, wagons, and clothing taken from Pennsylvania civilians (with a promise to pay them Confederate money once the war was won).

There was no thought of engaging in battle in Gettysburg, but rather one of the greatest battles ever fought on American soil began as a routine mission to obtain shoes.

The Confederate soldiers had not only been deprived of food, shelter and clothing, but also were in dire need of shoes, to the point where some of the men were marching barefoot over rocky terrain — they had lots of heart, but not much sole! There were reports of a large cache of shoes available in the little town of Gettysburg and some of General Ewell’s infantry set off to confiscate them.

The Confederates had no sense that there was any Union army in the area, but only reports of scattered militia. The reports were wrong. A Union cavalry under the command of General John Buford was actually about three miles from Gettysburg and an advance group of Confederate skirmishers ran head-first into them.

Neither side wanted to engage in battle since both felt they were undermanned and ill-equipped to engage in prolonged combat. Nevertheless, shots were fired and the battle was on. Both sides dispatched couriers in all directions to obtain reinforcements while Buford attempted to hold his position.

Confederate troops from Alabama advanced and the main battle opened on July 1, 1863, with Confederates attacking the Union troops on McPherson Ridge, west of town. Although they were heavily outnumbered, Union forces held their position, largely through the extraordinary bravery and intense fighting of the famous Iron Brigade comprised of, among others, the Wisconsin 2nd and 7th regiments, which suffered heavy casualties. They were able to hold their ground until they were finally overpowered and driven back to Cemetery Hill south of town. Their bravery is commemorated today by a monument along the wooded trails of McPherson Ridge.  (A map of the Gettysburg battlefield prepared by local Civil War historian Professor John Angelos appears at the end of this post.)

By nightfall the main body of the Union Army, now commanded by newly appointed Major General George G. Meade, arrived on the scene and took up their positions. Meade must have been in a state of shock. He had been awakened about 4:00 am on June 28, (just 3 days before) and told of his appointment to lead the Union Army — a position he neither sought nor desired. But being a loyal West Point graduate, he felt it was his duty to follow orders from his Commander in Chief, however difficult and onerous the challenge.

By the second day of battle, July 2, 1863, both armies had fortified their positions and added substantially to their numbers. Armies continued to arrive from various directions throughout the night and by morning 65,000 Confederates massed against 85,000 Union troops. Confederates were considerably handicapped by the absence of the flamboyant General James Ewell Brown (JEB) Stuart, whose cavalry was regarded as Lee’s eyes and ears. He finally arrived on day two of the battle out far ahead of his 120 wagons and mounted cavalry, which lagged far behind. Lee was upset by his late arrival, but pressed him into battle nonetheless.

Fierce battles were fought at different positions throughout the day, with the main bodies of both armies only about a mile apart on parallel ridges. As battles reached close quarters, the advantage continued to go back and forth, neither army being able to seize control.

This monumental struggle with yet more heavy casualties suffered throughout the day of fierce fighting set the scene for the final day of battle on July 3, 1863, which many historians consider to be the decisive battle of the civil war. After much discussion and debate, General Lee made the decision to send some 12,000 Confederate infantry to break the Union lines and cross Cemetery Ridge. To do so, they had to traverse an area which, as I viewed it from Cemetery Ridge where the Union army waited, was a wide open field with virtually no protection of any kind. The resulting attack, later referred to as “Pickett’s Charge” was repulsed with casualties so enormous that Lee finally determined that he could not continue the battle and began to retreat back into Virginia.

The Gettysburg National Military Park maintains a Visitor Center which has a museum, video presentations, and a famous diorama highlighting the battlefields and the various battles that took place and much more. The park stretches across miles and miles of rolling hills in a scenic Pennsylvania countryside which has been carefully preserved and closely resembles the conditions as they were in 1863.

The Battle of Gettysburg was among the bloodiest in history. There were more than 51,000 casualties, 28,000 from the South and 23,000 from the North. When Lee began to withdraw his troops and retreat toward Virginia on July 4, Meade, whose troops had also suffered significant casualties, pursued, but at a distance. Both armies left behind a countryside and town ravaged by horrifically bloody and intense fighting at close quarters.

When the armies retreated, the townspeople (who numbered only about 2,800) were left to deal with more than 30,000 dead and wounded soldiers from both sides. The armies took most of their doctors and medicine with them, leaving burial and medical care to the townspeople. Despite the horrific casualties from both armies, the civilian population miraculously survived almost unscathed. There was only one civilian casualty, a young woman named Jennie Wade, who was killed by a stray bullet that went through two homes and struck her in the head as she stood holding an infant, who was not harmed.

The Battle of Gettysburg, which coincided with General Grant’s stunning victory in Vicksburg, Mississippi, spelled the beginning of the end for the Confederate cause. Nevertheless, the war continued on for more than a year and a half until Lee’s surrender at Appomattox Courthouse, Virginia, in April 1865.

The Gettysburg community was left in shambles after the battle, prompting Pennsylvania’s Governor, Andrew Curtin, to commission a local Gettysburg attorney, David Wills, to purchase land for a proper burial ground for Union dead. Within four months of the battle, the effort to bury the Union dead began on the 18 acres which became the Gettysburg National Cemetery.

The Cemetery was in its early stages by November 1863, when Abraham Lincoln arrived for its dedication. On November 19, 1863, Lincoln came there for dedication ceremonies. The principal speaker for this occasion was a famous orator named Edward Everett who delivered a well-received two-hour speech filled with historical detail and classical references. President Lincoln, who had been asked only to make a few “appropriate remarks” delivered a speech that contains just 272 words and took about two minutes to deliver, but became forever famous as “The Gettysburg Address.”

The cemetery, which stands just outside the center of the quaint town of Gettysburg, is open to the public. Walking around the graves of so many unknown soldiers, as well as the graves of so many heroes who have died in wars since the Civil War, and standing within a hundred yards or so of where Lincoln delivered his Gettysburg address was an unforgettable, almost spiritual experience.

The Battle of Gettysburg, like so many other battles and aspects of the Civil War, as well as trials and football games, created endless debates among Monday morning quarterbacks about strategies, decisions, and perceived mistakes — all with the great benefit of hindsight. Here is my view on a few of them:

1) The infamous and disastrous charge on July 3 is popularly referred to as “Pickett’s Charge.” Considering all the facts, this seems to me to be manifestly unfair. Major General George E. Pickett, was only one of three Confederate Generals to lead the charge, the others being Pettigrew and Trimble. He simply followed orders issued by General Lee who escapes unscathed and is consistently treated kindly by most historians. In fairness, this debacle should have been referred to as “Lee’s Charge,” which it probably would have if the South had won.

2) General James Longstreet vehemently objected to Lee’s order and correctly argued that to charge across wide-open fields would be suicidal. Longstreet gets criticized for having the temerity to challenge Lee, but if his view had prevailed a great slaughter could have been prevented and the outcome of the whole battle may have been different. There is a very small statute of Longstreet at Gettysburg, dwarfed by an enormous marble monument of Lee astride his famous horse.

3) A Union officer named Daniel Sickles was widely criticized for moving his troops out of position, which caused the left flank of the Union army to be weakened and exposed to a withering attack. But when walking the battlefield it is clear that Sickles had been positioned on a low, flat piece of ground where he was essentially a “sitting duck” for Confederate guns. The outcome of his move out of such a flat area caused many casualties, but the decision, based on the information he had available to him at the time, was not unreasonable.

Sickles is also notable for the fact that he was not a West Point graduate and had no previous military experience. Rather he was a U.S. Congressman who became a General through his political connections.

Sickles also gained notoriety in the legal profession by being among the first defendants to be acquitted of a first-degree murder charge based upon a defense of temporary insanity. The charges grew out of an incident in which an enraged Sickles shot and killed a man who had a love affair with his teenage bride. The victim was the son of the famous Francis Scott Key, who wrote our national anthem “The Star Spangled Banner.”

The clever theory of Sickles’ legal defense was that he acted “on an irresistible impulse”  — the defense later popularized in the best-selling book and movie, “Anatomy of a Murder.” Paul Biegler (played by Jimmy Stewart), a small town lawyer from the Upper Peninsula of Michigan, convinced a local jury that his client (played by Ben Gazzara) had killed a man who was alleged to have raped his wife (played by Lee Remick) while acting on an irresistible impulse that prevented him from knowing right from wrong.

4) History also seems to have done a considerable disservice to old George Meade, the newly-appointed head of the Union Army, who had only a few days to prepare for the Battle of Gettysburg. Meade was a solid military man with a strong West Point background, but he seems to be overshadowed by General Grant and also by General Lee, whom he defeated at Gettysburg, the definitive battle of the Civil War. He is criticized for not pursuing Lee as he retreated from Gettysburg, but in fact his own army had suffered huge casualties and was in no condition to either march or engage in combat. History confirms that he made the right decision.

Both Antietam and Gettysburg are a comfortable two-hour drive from Washington, D.C., and are well worth a visit. They are quiet and beautiful. The rolling countryside, reminiscent of Western Wisconsin, provides a beautiful, peaceful, and moving tribute to a major part of our Country’s cherished history.

Recently I had the opportunity to tour the battlefields of Antietam in Sharpsburg, Maryland, and Gettysburg, nestled in the rolling hills and farmland of Pennsylvania. Walking the wide expanse of fields, climbing the hills, and traversing the countryside was a moving and inspiring experience I am honored to share with you.

Years of debate, rancor, and strong feelings, including fist fights and worse, among members of Congress, culminated in the election of Abraham Lincoln, the prairie lawyer from Illinois, to the Presidency of the United States in 1860. Lincoln’s platform did not mandate the abolition of slavery, but rather pledged to prevent it from being extended into new states and territories in the United States. Nevertheless, zealots on both sides of the issue pressed their positions and unrest continued to fester after Lincoln was sworn in.

Lawyers from both the North and South argued and debated the legality of slavery and laws implicated by its extension or abolition. But as tempers continued to flare and the threat of secession grew ever more intense, legal solutions and compromise yielded to strident battle calls of war.

First we shall consider the battle of Antietam, as it is called in the North, or Sharpsburg as Southerners refer to it.

Before the election Lincoln famously declared, “A house divided against itself cannot stand. I believe this government cannot endure, permanently half slave and half free. I do not expect the Union to be dissolved. I do not expect the house to fall. But I do expect it will cease to be divided. It will become all one thing, or all the other.”

Lincoln’s counter-part, Jefferson Davis, who was to be sworn in as President of the Confederate States on February 18, 1861, stated in 1857, “In the next four years is . . . locked up the fate of the Union. If the issues are boldly and properly met my hope is that the Constitution will prevail; if the attempt is made to postpone them the next Presidential election will . . . bring us to the alternative of resistance to oppressive usurpation or the tame surrender of our birthright.”

With philosophical battle lines thus drawn, the country began to be divided on December 20, 1860, when South Carolina seceded from the United States. By March, 1861, six more states, outraged by Lincoln’s election to the Presidency and emboldened by South Carolina’s actions, also seceded: Mississippi, Florida, Alabama, Georgia, Louisiana, and Texas.

After the first shots of the Civil War were fired with the bombardment of Fort Sumter, South Carolina, in April 1861, Lincoln’s call for volunteers and troops to put down the rebellion prompted Virginia, Arkansas, Tennessee, and North Carolina to secede, bringing the number of states in the new Confederacy to a total of eleven.

Much has been written about the war and the enormous impact it had on our Country. I do not pretend to cover so vast a field of controversy, but rather focus on two seminal battles that define the remarkable courage, human frailties, and incomprehensible carnage of this war, which was fought entirely on American soil. Brother against brother, father against son, cousin against cousin, and friend against friend.

Just as lawyers played a major role in the congressional and political arguments so, too, did they bring their strategy and tactics to the battlefields. Lincoln and several of his advisors were lawyers, as were many officers in both the Union and Confederate armies.

ANTIETAM/SHARPSBURG, SEPTEMBER 17, 1862

Most people, including the politicians and generals, believed that the war would be short-lived. Victory would be claimed within a matter of months, both sides confident that their glorious cause would prevail and peace would return along with conquering heroic soldiers of both armies. But as is true with most wars, there was nothing short, fast, simple, glorious, or easy in this massive conflict of two armies. About a year and a half into the war, the easy victory anticipated by both sides was far from assured. Doubt and fear were the prevailing emotions.

In the midst of these difficult days, General Lee decided it was a time to take the war to the North. In September 1862, he marched his army of more than 40,000 troops out of war-torn Virginia, with different parts of the army marching across the Potomac River and into the relatively unsettled Maryland and Pennsylvania countryside. This foray into Union territory was designed to catch the Union army by surprise.

On September 13, 1862, a Union soldier found a copy of Lee’s “special order 191” which contained his basic plan of operations for the entire campaign — like getting your trial adversary’s outlines of direct and cross examination in advance. This “lost order,” as it came to be called, was wrapped around three cigars. It was rushed to Union General George McClellan, who realized that he had an opportunity to strike Lee’s divided forces.

But even with the significant advantage of having Lee’s strategic plans, McClellan did virtually nothing for sixteen critical hours, convinced as always (without any reliable evidence or accurate intelligence) that he was outnumbered by an army that was actually half the size of his.

On September 15, 1862, Lee and his 18,000 troops took up positions along a three-mile ridge just east of the Town of Sharpsburg, Maryland. In front there was a small creek called Antietam, which McClellan and his 95,000 soldiers began to cross. Once again McClellan hesitated and waited two more days to draw up battle plans — precious time which enabled General Thomas “Stonewall” Jackson to join Lee and double his force.

With the troops in place and battle lines drawn, the Battle of Antietam/Sharpsburg began at dawn on September 17, 1862. The armies of Generals Hooker, Mansfield, and Sumner were the main attacking forces, but the battle plan was not well coordinated.

From the first light of dawn until about 10 o’clock in the morning, fierce battles raged across corn fields and woods. There was much confusion with soldiers from both sides running in all different directions. “[W]hen bullets are cracking skulls like eggshells, the consuming passion . . . is to get out of the way,” Union Private David L. Thomson of the 9th New York Regiment proclaimed with compelling logic.

I walked the battlefields just a few weeks ago almost exactly 149 years later. I was amazed at the huge expanse of wide and open fields. What were described as ridges are basically relatively modest elevations, but are just high enough to provide those who occupy them with a distinct advantage in firing down upon their adversaries.

In another part of the 24-acre field there is a sunken trench which allowed Union troops to remain essentially invisible to the advancing Confederates. Walking through the corn field, there is absolutely no indication of any trench or ditch ahead. It appears to be level ground with good visibility. The Union soldiers remained crouched down in the trench until they could see the legs of the advancing Confederates, at which point they rose and shot at point-blank range. Those Confederates still standing began firing back at similar distance. Both sides suffered huge casualties in just thirty minutes. Heavy fighting continued throughout the day until late afternoon, when the Confederates began to fall back.

But Union troops had also suffered enormous casualties and were in no condition to pursue their advantage. The dead and seriously injured were strewn all over the fields, on the roadways and woods, causing an observer to write, “They were lying in rows like the ties of a railroad, in heaps like chord wood mingled with the splintered and shattered fence rails. Words are inadequate to portray the scene.”

Of the more than 100,000 soldiers who fought in the Battle of Antietam, about 23,000 were killed, wounded, or missing in this one-day battle. A total of 4,776 Union soldiers are buried in the Antietam National Cemetery. The Confederate dead were removed and buried in locations in Maryland and what is now West Virginia. So horrifying was the number of dead that those troops who survived lost all their spirit and drive to fight on. Private Thompson further observed, “Before the sunlight faded, I walked over the narrow field. All around were the Confederate dead, clad in butternut. As I looked down on the poor pinched faces all enmity died out. There was no ‘secession’ in those rigid forms nor in those fixed eyes staring at the sky. Clearly, it was not their war.”

Many historical figures of note were involved in the Battle of Antietam, including a young Massachusetts Captain who survived a shot through the neck and went on to enjoy a long, successful life and career. Later a famous U.S. Supreme Court Justice, Oliver Wendell Holmes, Jr., continued to fight in the famous war and in 1864 issued a stern command to a civilian who was standing on a ridge near a battlefield as an observer. Holmes yelled at him, “Get down, you fool!” The civilian who wisely followed this command was none other than Abraham Lincoln.

Confederate General John B. Gordon of the 6th Alabama was a true hero at Antietam. Despite being shot five times, he insisted on staying with his men, which he did until a shot through the cheek brought him down. He survived his wounds to fight on through the end of the war and went on to become Governor of Georgia and a U.S. Senator.

Another historical figure who emerged in Antietam, Clara Barton, became famous as “The Angel of the Battlefield” and the founder of the American Red Cross. Nurse Barton, who worked in the Patent Office in Washington, had no training in medicine or nursing, but was so overwhelmed by the suffering she saw among the troops, that she went out to the battlefields to assist them. While holding up the head of a badly wounded Union solider to give him water from a canteen, she was shot from behind, the bullet passing through the folds of cloth on her dress, killing the soldier whose head she was cradling.

Following this punishing battle, Lee retreated, and both sides regrouped. Back in Virginia, Lee’s armies survived the winter and went on to win some impressive victories at Chancellorsville and Fredericksburg in 1863. The stage was set for the Battle of Gettysburg, the most decisive battle of the Civil War.

The subject of early Marquette law degrees is complicated by the decision of the University to award Marquette Law degrees to all the former students of the Milwaukee Law School (which Marquette acquired in 1908) who had passed the Wisconsin bar examination.  The decision was apparently made at the last minute, and few documents pertaining to the decision survive.  (It is, for example, hardly mentioned in the Trustee minutes.)  Apparently the decision was also intended to apply to former Milwaukee Law School students who were enrolled at the time of the “merger” and who continued on in the new night program at Marquette.

As a consequence, more than 80 law degrees were awarded in 1908, before the new law school actually began operations, and additional degrees to former Milwaukee Law School students were awarded at the next several commencements.  This decision later came back to haunt the law school, as critics (especially faculty members of the University of Wisconsin Law School) later accused the school of “selling diplomas.”  (Degrees were not automatically awarded to former Milwaukee Law School students who passed the bar examination; they first had to apply to Marquette for a degree and pay a $5 diploma fee.)  In response, the degrees awarded to the Milwaukee Law School students were soon re-labeled “honorary degrees.”

However, by the spring of 1911, there were students who had completed all of the requirements of the new full-time, day-only law program at Marquette.  A class picture of these students now hangs in the hallway of the Dean’s suite in Eckstein Hall.  (The composite photograph actually shows 11 members of the graduating class, when in fact only 9 actually graduated.  The photograph was apparently prepared before the end of the Spring 1911 semester and circumstances apparently kept two of the 11 from graduating.  Things like that do happen.)

The 1911 Commencement was held at 8 p.m. on the evening of June 21, 1911, in the Pabst Theater.  Music was provided by the Marquette University Orchestra and the Marquette University Mandolin Club, and the event was presided over by Marquette President James McCabe, S.J.

The 1911 Commencement had a distinctively “legal” flavor (in part because the Marquette Medical College and its affiliated programs held their own separate graduation ceremony).  The Commencement address was delivered by Patrick H. O’Donnell, a prominent Chicago lawyer and graduate of Georgetown law school who was instrumental in the creation of the law school at Loyola of Chicago the following year.

The only honorary doctorate awarded that day was a Doctorate of Laws degree awarded to the Rev. Antoine Ivan Rezek, the author of the recently published “The History of the Diocese of Sault Ste. Marie and Marquette.”  (Why Father Rezek was awarded a Doctor of Laws degree rather than a Doctor of Arts is not clear.)

Of the 29 actual degrees awarded, 18 were in the field of law.  Of the non-law students, Luis Rivera, a citizen of the Philippines, received a Master of Arts degree.  Nine students received the Bachelor of Arts degree while a tenth received the degree of Bachelor of Science.

As  mentioned above, nine graduates were awarded the Bachelor of Laws degree for work done in the day division, while an additional nine were awarded “the Honorary Degree of  Bachelor of Laws” for work done either at the Milwaukee Law School or in the Marquette evening program and for passing the Wisconsin bar examination.  Because the next administration of the bar examination was not until July, none of those students who had finished the night course in June of 1911 were eligible for degrees.

(In 1911, any person who had studied law for three years was eligible to take the Wisconsin bar examination regardless of whether or not they had a law degree, and the diploma privilege would not be extended to Marquette degree holders for another two decades.)

Only one of the first nine “true” graduates—Albert O’Melia—graduated with honors, but there was obviously a great honor simply in being a member of the inaugural graduating class.  A more detailed account of the law school experiences of the Class of 1911 can be found in my earlier blog post entitled “The First Joe Tierney’s Marquette Legal Education.”

[Update: a reference in the fourth paragraph was corrected to read "1911" instead of "2011."]

Mabel Watson Raimey was the first African-American woman to attend Marquette University Law School. (117) She worked during the day and went to law school at night. (117) She was the first African American female lawyer in Wisconsin, entering the profession in 1927. (118)

Ms. Raimey went to law school a few years after she was fired from her job teaching elementary school in Milwaukee: she was let go on the third day of school after school officials learned of her race. (114-15) Ms. Raimey had been a distinguished student before entering the teaching profession. (116) She graduated from West Division High School at fourteen and obtained an English degree at the University of Wisconsin. (116-17)

Before entering law school, Ms. Raimey volunteered for the Milwaukee Urban League and ultimately became a member of the board. (117-18) She founded the Alpha Kappa Alpha sorority in Milwaukee, and she helped to start a YWCA branch in Milwaukee for African Americans (now called the Vel Phillips Center). (118)

Ms. Raimey practiced law in Milwaukee. (118) Three African-American lawyers practiced in Milwaukee in the 1930s through the 1940s. (118) Ms. Raimey served both African-American and white clients. (118) She represented individuals “’regardless of their race, color, creed, or economic ability . . . in a fair and just manner.’” (118)

The book recounts that when Ms. Raimey accepted an award later in life, she said

[i]f my acceptance and completion of law school at Marquette University in the 1920s has inspired or encouraged anyone to enter the field of law, I am pleased. If any accomplishment that I may have made has had any influence on any young people, I am pleased more. (121)

Ms. Raimey has been recognized by other Marquette faculty. Professor Phoebe Weaver Williams recounted Ms. Raimey’s life in A Black Woman’s Voice: The Story of Mabel Raimey, “Shero”, 74 Marq. L. Rev. 345 (1991).** A historical marker to Ms. Raimey also stands outside Sensenbrenner Hall on Wisconsin Avenue.

I admire Ms. Raimey for her desire to learn, her ability to push forward in the face of injustice and bigotry, her sense of fairness in representing her clients regardless of race, and her community activism.

Readers: what other Marquette women lawyers have made a difference in the legal profession and the broader community? Whom do you admire?

*Greta Anderson, More Than Petticoats: Remarkable Wisconsin Women, 113-21 (2004).

**In her book, Greta Anderson gratefully acknowledged Professor Williams’ assistance in writing the chapter on Ms. Raimey.

On July 1, 2011, without much fanfare in the rest of the world, Germany ended its military draft.  The German military draft began in 1956 (when Cold War concerns led to its re-establishment in West Germany) and lasted for 51 years.

For American males who turned 18 between 1946 and 1972 (several of whom currently serve on the Marquette law faculty) the German action is a reminder of the powerful role that the “peace-time” military draft once played in the United States.

Because it has now been almost 40 years since the American military draft was terminated, many of the details of the draft have passed out of the American consciousness and are only hazily remembered even by those who lived through the period of the draft.  (Does anyone ever watch the 1969 Arthur Penn film Alice’s Restaurant, which revolves around a satirical treatment of what the draft did to the lives of young American males in the Age of Aquarius?)

The following is a summary of the way in which the U.S. military draft operated in the late 1960’s and early 1970’s, and how it affected the lives of those planning to attend college or graduate school.  This surveys the operation of the draft from the time of the Military Selective Service Act of 1967—which significantly revamped involuntary military service in the United States—until the termination of the draft in 1972.  The discussion below is part personal memoir and part research project.

One of the central features of the Cold War draft was the student deferment.  As long as an eligible male was enrolled in an undergraduate college, his eligibility for the draft was deferred until his studies were complete or else he had left college.  Until 1967, students who were in graduate school were deferred as well, although one of the purposes of the 1967 Act was to reduce dramatically the number of graduate programs eligible for student deferments.

Consequently, males who entered college after 1967 knew that once they had finished college—unless they enrolled in Divinity School–they would have to deal with the prospect of mandatory military service.  Although many eligible men were in fact never drafted, the escalating use of ground troops in Vietnam in the late 1960’s made it seem likely that most physically fit males would have to either submit to induction into the military, or else volunteer for some branch of the service before being drafted, or establish that one was a qualified religious conscientious objector (which normally required proof of membership in a “peace church” like the Society of Friends, the Mennonites, or the Church of the Brethren”).  The only alternatives were going to prison or leaving the country.

As a symbol of this system, all 18-year old or older males were required to carry a “draft card” that both indicated one’s draft status and doubled as a general purpose ID card.

The Military Selective Service Act of 1967, passed at the highpoint of the escalation of U.S. military involvement in Vietnam, had significantly altered the system of drafting civilians that had been in place since the years before World War II.  While it reduced the number and type of exemptions, it left the undergraduate college deferment in place, and it originally left the process of selecting draftees to local draft boards.  Previously, every local draft board was assigned a “quota” for soldiers that it had to supply to the U.S. military.  Although the quotas had to be met, except in cases of extraordinary special circumstances, the boards were normally given broad discretion when it came to choosing who would be drafted and who would not.

Although draft boards were frequently accused of favoritism in their choice of draftees, cultural icons Elvis Presley and Willie Mays were both drafted in the 1950’s, after they had become nationally well-known figures.

However, on November 26, 1969, President Richard Nixon, still in his first year in office, signed an amendment to the 1967 act which replaced the arguably arbitrary local selection system with a national draft lottery.

Under the lottery, a draft number was randomly assigned to each day of the year, and in the year they turned 19, young men were subject to call up to the military the following year.  Call ups began with those whose birthdays had assigned the lowest numbers.   (The assignment of numbers was done through the use of a lottery bin and the event was shown on national television.)

Student deferments for those attending college remained in place, but they only delayed, and only for up to four years, the year the holder became eligible to be drafted.

The first draft lottery was held on December 1, 1969, and applied only to all males eligible to be drafted under the previous system—which were those men born between January 1, 1944, and December 31, 1950. (Anyone born before 1944 had already reached age 26, which was the oldest age at which a man could be drafted under the previous system.)  The 1969 Amendment also provided that if an eligible male was not drafted the first year that he was available for the draft, he could not be drafted in a subsequent year.

This formed the primary basis of the argument that the new lottery was less disruptive to the lives of young men because it reduced the period of uncertainty as to whether or not one would be drafted from seven years (ages 19 to 26) to a single year (the year one turned 19).  While this was technically true, those who held student deferments had to worry about their draft status all the way thorough college and for the following year.

In 1970, it was generally assumed that the need for troops might require the federal government to go as high as #215 in the draft, but was unlikely to go any higher.  Consequently, anyone with a number above #215 could decline to apply for a deferment and take the very small risk of being drafted.  For those with #366, there was absolutely no risk at all, short of the outbreak of a major war with the Soviet Union.  Those with low numbers could be certain that they would be drafted when or if they lost their student deferment.

The second drawing, affecting those born in 1951, was held on July 1, 1970, after the conclusion of the freshman year of college of most of that group that had enrolled in college.  However, most of the students who began college in the fall of 1970, were, like myself, born in 1952.  We were eligible for student deferments, but had to wait until the following summer to know our real draft status.

By 1970, the future status of the draft was a matter of much debate and significant uncertainty.  Richard Nixon had called for a phase-out of the draft during the 1968 presidential campaign, and there were frequent rumors throughout his first term that the ever increasing troop withdrawals from Southeast Asia were a prerequisite to the draft’s abolition.  Consequently, one could always hope that the draft might be abolished while one’s student deferments were still in effect.

On the other hand, there were also persistent rumors that Congress might end student deferments—a frequently articulated “fairness” argument said that it should—so, on the assumption that the repeal would not be retroactive, almost everyone born in 1952 and in college in the fall of 1970 requested a student deferment, even though they would not be eligible to be drafted until 1972.

The draft lottery for those born in 1952 was not held until August 5, 1971, a month or so before the beginning of the 1971-72 academic year at most colleges.  I pulled a #81, which was almost surely in the “likely to be drafted range,” had I not had my deferment.

The Nixon Administration’s dramatic reduction in the number of ground troops in Southeast Asia in 1969 and 1970—which accompanied an expanded use of bombing of enemy territories—reduced the need for soldiers, and in 1970, the pool of those actually drafted reached only #195, short of the predicted #215.  The following year (1971), only those with numbers of 125 or lower were drafted.  In what would have been the draft year for most of us—1972—eligible males with numbers of 95 or lower were called up for physicals and most were drafted.  (I am sure that at #81 I would would have been called, because my one of my high school friends, whose number was #84, was drafted after dropping/flunking out of Virginia Tech the year before.)  However, because of my still-valid student deferment, I was not drafted in 1972.

But before anyone was drafted in 1973, further changes in the system occurred.  In September, 1971, when the draft was renewed for an additional two years after months of acrimonious debate in Congress, all future student deferments were eliminated (except for those for divinity students).  I believe that this applied only to new, first-time registrants, but that was not very clear at the time.  However, the issue ultimately proved moot.  No one with a number higher than #10 was called up for physicals in 1973, and on January 27, 1973, Secretary of Defense Melvin Laird announced that the United States was abandoning the military draft for the indefinite future and would instead rely on an all volunteer force.

Looking back on it, this announcement produced a massive sigh of relief among college males, and almost immediately the abolition of the draft took the wind out of the sails of the anti-Vietnam War movement at Oberlin (where I was a student) and elsewhere.

Although draft lotteries were held in 1973, 1974, and 1975, the draft was never reinstated, and men in their early 20’s approach their futures with a degree of occupational freedom that few had anticipated at the beginning of the decade.

An aspect of the Vietnam era draft that was confusing then, and continuing to be now, is that there was a preliminary stage to the draft, that was known as “getting called up for a physical.”  To expedite the process, eligible males who were deemed likely to be drafted were ordered to report for a preliminary physical that was used to determine who was physically eligible for service and who was not.

Normally, someone called up for a physical who was certified as physically fit for the draft assumed that they would be drafted during the following few months.  Generally, this was the case, but it was not always true.  Many enlisted in the Air Force, or some less dangerous branch of the service, once they were called up for, and passed, an army physical.  Some, of course, failed the physical.  However, every year there were some who got called for a physical, passed it, but then saw the year pass without actually being drafted.

Because the number of men drafted fell below the predicted number every year from 1969 and 1973, there were always males with border-line numbers who got called up for physicals but who were never actually called up to active duty.  Also, and I don’t really understand why this happened, there were times when males with valid student deferments got called for physicals, even though they were not actually subject to the draft.  This may have been a function of local draft boards having difficulty figuring out the new system.  Nevertheless, the receipt of a letter in the mail ordering one to report for a military physical was a traumatic event, even for those who felt certain that they were not currently eligible to be drafted.

As the father of a son starting college this year, I am especially thankful that he doesn’t have to deal with the anxieties that were commonplace forty to fifty years ago when baby-boomer males were in college.

Kowalski was born in Brooklyn, New York, in January 1923.  His older brother Thad was a star semi-pro baseball player in Brooklyn in the late 1930’s, and Walter grew up dreaming of following in his brother’s footsteps.  Initially, it looked like he was going to do just that. 

In the fall of 1942, he signed a professional contract with the Lockport White Sox of the Class D Pennsylvania, Ontario, and New York League, more commonly known as the PONY League.  Although the Lockport team was affiliated with the American League’s Chicago White Sox, it appears that Kowalski signed with the Lockport team, rather than the White Sox.

Unfortunately for Kowalski, he was not able to begin his professional baseball career as planned in 1943.  Realizing that he was almost certain to be drafted into the military, he enlisted in the Army Air Corps in 1943, and served through the end of the 1945 baseball season.

He began his professional career in 1946 with Lockport, now an unaffiliated PONY League team called the Cubs.  Kowalski was Lockport’s starting third baseman throughout the 1946 season, and the 23-year old compiled a respectable batting record, clubbing 27 doubles, 8 triples, and four home runs while batting .254.  He showed enough in 1946 that at the end of the season, his contract was purchased by his hometown team, the Brooklyn Dodgers.

(It appears that Kowalski may have shaved a year off his actual age when he began his professional baseball career, as many baseball sources report him as born in 1924.  References to age here refer to his actual age.)

Under the reserve rule of Organized Baseball (an alliance that included both major leagues and most of the professional minor leagues), Kowalski did not have the right to become a free agent after the expiration of his Lockport contract and to sign with a team of his choosing.  Because his reserve rights had been assigned to the Dodgers, his only option for the following year was to play for the team selected for him by the Dodgers.

Under the direction of team president Branch Rickey, the Brooklyn Dodgers were locking up the services of literally dozens of promising young players in the postwar years.  With 24 different minor league teams spread Class D to Class AAA, the Dodgers operated the largest farm system in the major leagues in the late 1940’s, and the team had approximately 500 players under contract at any given time (as opposed to the 150-200 today).  Making it through such a system to the AA or AAA levels, let alone the Major Leagues, was a major accomplishment.

For the 1947 season, Kowalksi was returned to Class D where he played for the Kingston Dodgers of the North Atlantic League. Kowalski was again his team’s starting third baseman, and he blossomed into a star for the pennant winning Kingston team.  The third oldest player on the team, he flourished as a hitter, batting .318 with 11 home runs and a league leading 24 triples.  (The 24 triples were apparently the most hit by any professional baseball player in 1947, at any level of play.) 

After the end of the season, Kowalski was promoted to the Dodgers’ Pueblo, Colorado affiliate in the Class A Western League, a promotion that appeared to indicate that he would by-pass the Class C and Class B levels of minor league play.

Under the rules of that era, minor league players were subject to an unrestricted player draft held each fall.  Eligibility for the draft was determined by the number of professional seasons played and the level at which a player was currently assigned, and player who were eligible for the draft could be drafted by any other team—for a fixed fee determined by level of classification–so long as the drafting team was of a higher classification than the drafted player’s current team. 

Because Kowalski had two years of professional experience, he would have been eligible for the unrestricted draft, had he been assigned to a team in a Class B, C, or D league.  However, because Class A players were eligible for the draft only if they had three years of professional experience, Kowalski’s promotion to Pueblo meant that he could not be drafted by another team in the 1947 amateur draft, and therefore was guaranteed to remain the property of the Dodgers for the following season (unless the Dodgers decided to trade or release him). 

Kowalski began the 1948 Spring Training season with Pueblo, but before the regular season began he was demoted to the Class B Asheville Tourists of the Tri-State League.  Because minor league players were paid according to a fixed scale–$150 month for Class D; $235 month for Class C; $250 for Class B; and $265 for Class A, for example—any demotion also amounted to a cut in pay.

Unfortunately for Kowalski, while playing an exhibition game with Asheville, he seriously injured his ankle and was unable to start the season with the team.  When he was able to play, he was demoted an additional level to the Trois-Riveres Royals, the Dodgers’ Class C team in the Canadian-American League. 

As a member of the Quebec province-based Royals, Kowalski split his time between third base and the outfield while again putting together a stellar year at the plate.  He finished the season hitting a team leading .352 with 26 doubles, 12 triples, and 10 home runs.  He led the Can-Am League in base hits and finish fourth in batting average, and at the end of the season he was selected to the league’s all-star team.

At the end of the 1948 season, Kowalski was again promoted to a Class A team, this time to Greenville of the South Atlantic League.  Now that he was a three-year veteran of minor league baseball, Kowalski was eligible for the draft, but because he was on a Class A roster, he could only be drafted by a team in a Class AA or Class AAA league (or by a major league team).  In that year’s draft, none of the 16 AA, 24 AAA, or 16 Major League teams chose to select him.

For a second consecutive year, Kowalski failed to make the opening day roster of the Class A team to which he was assigned.  (The Greenville third baseman in 1949 was future major league all-star Don Hoak who would finish second in the voting for the National League Most Valuable Player in 1960.)  Instead, in 1949, Kowalski was assigned to the Newport News Dodgers of the Class B Piedmont League, a team that included seven future major leaguers.

Kowalski, now 26, was shifted to second base, but the change in position did not seem to affect his hitting as the 5’11,” 185 pound slugger came through with another exceptional season, belting out 31 doubles and 15 home runs, while batting a solid .280 in what was clearly one of the strongest Class B leagues in the country.  (The league’s six teams in 1949 included 28 players who would eventually reach the major leagues.)

Unfortunately, by 1950, Kowalski was now a 27 year old minor league veteran who was still playing in the “low minors.”  He went undrafted after the 1949 season, after again being promoted to the Dodger’s Class A Greenville team.  In 1950, he made the Greenville roster in spring training, but his opportunities were limited by a slow start as his hitting was not up to the level of his previous performances.  After 42 at bats in 17 games, he was batting only .205 with only two extra-base hits (both doubles).  At that point, he was demoted to the Lancaster (Pa.) Red Roses of the Class B Interstate league where he batted an unexceptional .257 with two home runs in 47 games.

Given that he was one of the three oldest players at Lancaster, the Dodgers at this point appear to have given up on Kowalski, and his contract was assigned to the independent Johnstown Johnnies who were mired in last place in the Class C Middle Atlantic League.  The fortunes of the Johnnies did not markedly improve after Kowalski’s arrival, but that was in no way due to the team’s new outfielder.  In 55 games with Johnstown, Kowalski tore up Class C pitching, batting .344 with 12 home runs and a .632 slugging percentage.

Presumably because of his age, Kowalski was again not drafted at the 1950 season in spite of his impressive numbers at Johnstown.  To make matters worse, the Johnstown team folded after the 1950 season.  However, Kowalski was able to catch on with another Mid-Atlantic League team, the independent New Castle (Pa.) Indians.

During his long sojourn through the lower ranks of the Brooklyn Dodgers farm system, the increasingly frustrated Kowalski had come to believe that his access to the higher minor leagues and perhaps even the major leagues had been blocked by the talent-rich Dodger organization. That was, of course, not an unreasonable view.

Between 1947 and 1950, the years that Kowalski played for Brooklyn minor league teams, the major league Brooklyn Dodgers finished in first place in National League on two occasions and finished second and third in the other two seasons.  The team’s AAA affiliate in the International League, the Montreal Royals, finished first once, second twice, and third once in their league, while the Dodgers’ other AAA team, the St. Paul Saints, won the American Association pennant in 1949 and finished only six games off the pace in 1950.  In other words, the Dodgers’ system was top-loaded with talent as well as being stocked with young, talented players in the lower minors.

Kowalski also came to believe that the Dodgers had in 1947 and 1948 promoted him to Class A teams at the conclusion of the season, not because they expected him to play at that level the next year (which they didn’t), but solely because they wanted to prevent another team from drafting him.  Had another team been able to draft him for an affordable price, Kowalski believed he would have been able to ascend the baseball ladder more quickly.

While still under contract with the Dodgers, he formally protested what he viewed as his unfair treatment by the Brooklyn club to Minor League president George Trautman, to National League president Ford Frick, and finally to Baseball Commissioner Happy Chandler.  However, neither they, nor anyone else, was willing to intervene on his behalf.  In fact, Kowalski came to fear that he had been informally blacklisted by minor league teams that were affiliated with major league organizations because of his willingness to file a complaint against his team.

It was at this point that Kowalski began to contemplate filing suit against the Dodgers and Organized Baseball.

From a purely legal perspective, the obvious course of action for someone in Kowalski’s position was to file an individual action against the Dodgers and Organized Baseball under the federal antitrust laws.  Organized Baseball was clearly a combination of independent economic actors (teams and leagues) which adopted rules that restricted the operation of the labor market in ways that would clearly be illegal in any other industry. 

Because of baseball’s reserve rule a team could always “reserve” the services of a current player for the following year, and no other team within Organized Baseball could bid for the services of that player, even if his contract had expired.  Even players who signed with teams not affiliated with Organized Baseball faced the prospect of being blacklisted from ever playing in Organized Baseball again.

The problem with filing such a claim was the fact that almost thirty years earlier (in 1922), the United States Supreme Court had ruled in the Federal Baseball case that baseball competition was not a form of interstate commerce and thus not an activity to which the federal antitrust laws applied.  However, the United States Second Circuit Court of Appeals had recently (in 1949) ruled that the Federal Baseball decision was no longer binding because of changes that had occurred  since the early 1920’s in both the baseball industry and in the Supreme Court’s understanding of the meaning of the United States Constitution’s Commerce Clause.

The Second Circuit ruling had come in a case involving former New York Giants outfielder Danny Gardella who had challenged Major League Baseball’s decision to blacklist him for playing in the independent Mexican League.  Gardella had left the New York Giants after the expiration of his contract following the 1945 season and had signed a new contract with a professional team in Mexico. 

Under baseball’s private rules, this could be done only if Gardella’s previous team, the Giants, waived its right to renew his services.  If he joined a team outside of Organized Baseball without the permission of his previous team, he could be forever barred from playing for any Organized Baseball team in the future.

Gardella’s case had been argued by New York lawyer Frederic Johnston, and after his victory before the Second Circuit, he had settled his case with Organized Baseball before the 1950 season for money damages and the reinstatement of his eligibility.  The settlement notwithstanding, Gardella’s case obviously had implications for players like Kowalski who felt that they were stuck in the minor leagues because of the restrictive labor rules of Organized Baseball..

The first post-Gardella lawsuit by a professional baseball player was filed in April 1951 by minor league pitcher Jim Prendergast.  Prendergast’s career as a minor league pitcher had begun in 1936, and except for four years in the military during World War II and three months with the 1948 major league Boston Braves, his entire regular season career had been spent in the minor leagues. 

At the end of the 1950 season, Prendergast’s team, the Syracuse Chiefs of the AAA International League, insisted that he take a pay cut for the 1951 season—unlike players in the low minors, some AAA players were able to negotiate their own individual salaries.  However, when Prendergast refused to sign the new contract the team offered him, Syracuse traded him to the Beaumont Roughnecks of the AA Texas League.  Under minor league salary rules, the transfer to a lower classification team which would have automatically required Prendergast to take a further pay cut.  When Prendergast refused to report to Beaumont, he was placed on the Organized Baseball blacklist.

At the same time, New York lawyer Frederic Johnson, having second thoughts about Gardella’s settlement, was looking for other players who were willing to challenge the labor practices of Organized Baseball in court, and it was only a matter of time until he and Prendergast found each other.  In late April, Johnson filed an antitrust action on Prendergast’s behalf in federal district court in Syracuse.  The complaint requested $150,000 in damages ($50,000 in actual damages, multiplied by three pursuant to the treble damages provisions of the antitrust laws).

The following month a similar lawsuit was filed suit in federal court on the west coast by a New York Yankee farmhand, pitcher George Toolson, who was represented by a Santa Barbara, California law firm.  Like Prendergast, Toolson wanted to be able to negotiate his own deal with a team of his own choosing, and he too filed an antitrust action against the major league New York Yankees, the team that held his reserve rights, the Pacific Coast League (in which he wished to play), and the minor league teams in Los Angeles and Hollywood which had refused to negotiate with him because his rights were held by the Yankees.  

More specifically it was the Yankees decision to demote him from AAA Newark to Class A Binghampton that prompted him to file suit against his employers that claimed antitrust damages of $375,000.

Toolson, like Kowalski, was a career minor leaguer who had never played in the major leagues, but unlike Kowalski, Toolson had spent almost his entire professional career playing at the highest level of the minor leagues (as had Prendergast).  After debuting in 1942 as a 19 year old Boston Red Sox minor leaguer, he had, with two years off for military service, pitched the next six years at the AAA level.  Like Prendergast, he faced a substantial pay reduction if he accepted the assignment to a lower league.

The same month that Toolson filed his lawsuit in federal court in California, Cincinnati lawyers Maurice H. Koodish and Morse Johnson filed a separate antitrust suit in federal court in Cincinnati on behalf of Jack Corbett.  Corbett was not a player, but was the owner of a minor league team in El Paso, Texas, who had been blocked by Organized Baseball when he tried to sign former Mexican League players after a Mexican labor court had ruled that the Mexican League’s reserve clause was illegal under Mexican law. 

In order to make peace with the Mexican League and to prevent future player raids like the one that snared Danny Gardella, Organized Baseball had agreed in 1949 to honor the reserve clause in Mexican League contracts.  When Corbett signed four Mexican League players, he was threatened with expulsion from Organized Baseball.  In his lawsuit, he claimed $100,000 in damages which, when trebled, totaled $300,000.

Corbett’s lawsuit was filed in Cincinnati because it was the headquarters of Major League Baseball and the location of the office of Commissioner Happy Chandler.

With these examples before him and seeing no future for himself within the ranks of Organized Baseball, Kowalski contacted Corbett’s lawyer Maurice Koodish. In June, 1951, Koodish filed a second lawsuit in Cincinnati, this time on behalf of Kowalski, who like Prendergast, asked for a total of $150,000 ($50,000 in actual damages times three). In Kowalski’s complaint he asserted that he had been wronged by both the Dodgers and Organized Baseball and that the officials of minor league and major league Baseball had failed to provide him with the relief to which he was entitled. Because Kowalski was no longer under contract with the Dodgers, the suit was filed directly against Organized Baseball and Commissioner Chandler, and not against his former employer.

Sometime after Koodish filed suit on Kowalski’s behalf in June, responsibility for arguing his case was transferred to Frederic Johnson whose Prendergast case appeared to be stuck at the bottom of a lengthy backlog of cases in upstate New York.  At the same time Koodish and Morse continued to represent Corbett, and the two cases were officially consolidated by the court for purposes of trial.

Ironically, 1951, the year in which he sued Organized Baseball, turned out to be Walter Kowalski’s best year ever in professional baseball, at least from a statistical point of view.  Playing the outfield for New Castle, Kowalski clubbed 24 home runs and drove home 134 runners while hitting .375 with a .632 slugging percentage.  He led the Mid-Atlantic League in almost every offensive category, including batting average, slugging percentage, runs, hits, and runs batted in while earning a spot on the league’s All-Star team.

Although Prendergast’s lawsuit was stalled in the U. S. District Court for the Northern District of New York, Toolson’s case came to trial in California in November 1951.  Unfortunately for the minor league hurler, the district court judge ruled that Federal Baseball was still the controlling precedent and that the Second Circuit had erred in determining that the decision was obsolete.  Consequently, Organized Baseball was still not subject to the antitrust laws, thus the court lacked jurisdiction to hear Toolson’s claim. 

A month later, on December 6, 1951, the federal district court judge in Cincinnati reached a similar conclusion and simply dismissed the lawsuits filed on behalf of Corbett and Kowalski. However, all three of the plaintiffs responded to their respective setbacks by filing appeals to the appropriate United States Circuit Court of Appeals.

Unlike Prendergast and Toolson, neither of whom ever pitched in Organized Baseball after filing their lawsuits, Kowalski was not finished with baseball career.  Although the Middle Atlantic League went out of business after the 1951 season, Kowalski’s spectacular performance in 1951, enabled him to catch on with the Reading Indians of the Class A Eastern League, a Cleveland Indians farm team. 

Whether his ongoing litigation was a factor in Cleveland’s decision to acquire his services is a question that is difficult to answer.  If Kowalski was arguing that he was being blacklisted by Organized Baseball, it would have looked incriminating if he had been unable to find a job in professional baseball after a season in which he batted .375 (even if it was in Class C.)

However, once again, Kowalski failed to stick with a Class A team during spring training.  He ended up being one of the last two players released from the team.  However, rather than release him, the Indians organization assigned Kowalski to another of their affiliates, the Class B Spartanburg (S.C.) Peaches of the Tri-state League. 

Although Kowalski briefly thought about retiring rather than reporting to Spartanburg, he joined the team in time for the start of the season.  Although he hit reasonably well at Spartanburg (.293 with a .431 slugging percentage), his sudden loss of power cost him his spot in the team’s starting line-up.  In mind-season, his contract was assigned to the independent Lakeland Pilots of the Class B Florida International League.  (It appears that Kowalski became expendable when future major league slugger Rocky Colavito was promoted to Spartanburg.)

Kowalski’s stint at Lakeland was unexceptional, as he appeared in only 33 games and batted just .233 without hitting a single home run. 

At the conclusion of the 1952 season, Kowalski decided to retire from professional baseball, although at age 32 and coming off a year in which he had a combined batting average of only .263 with two home runs in two Class B leagues, it is not at all clear that he would have had any real options in professional baseball in 1953. 

In seven minor league seasons, Kowalski compiled a life-time batting average of .308 and a .489 slugging percentage in just under 3000 career at bats. 

In the meantime, Toolson’s appeal to the Ninth Circuit was argued in the late fall of 1952, and the Court’s decision, affirming the district court’s decision, was handed down on December 12.  Kowalski’s appeal reached the Sixth Circuit Court of Appeals two months later, and in February, 1953, the Sixth Circuit, like the federal district court, ruled that Kowalski’s claim should be dismissed on the grounds that Organized Baseball was immune from the federal antitrust laws, as held in Federal Baseball.

However, retirement from baseball did not mean the end of his lawsuit as Johnson appealed the Sixth Circuit’s decision on Kowalski’s behalf to the United States Supreme Court, a step already taken by George Toolson. The Supreme Court accepted both appeals on May 25, 1953—as well as one from Corbett, the minor league owner—and the cases were scheduled to be argued together on October 13 and 14, 1953. 

Of course, it is well known that the Supreme Court ruled against the three appellants on November 9, 1953, by a vote of 7-2, thus prolonging baseball’s exemption from the federal antitrust laws for the rest of the twentieth century.  None of the three cases ever went to trial, and Prendergast’s case, along with five other actions filed after Kowalski began his lawsuit, were all dismissed by lower courts on the basis of the ruling. 

Because the Supreme Court styled its ruling, Toolson v. New York Yankees, Inc., et al., the name of Walter Kowalski immediately disappeared from the sports pages and law reviews.  While the issue of baseball exemption from the antitrust laws has been heatedly debated on a regular basis since 1953, the case that affirmed the exemption is universally known as Toolson.  The only mention of Kowalski and Corbett in the court’s opinion came in a footnote that explained that the court’s decision also applied to those cases as well. 

Of course, had the Court instead chosen to style the case Kowalski v. Chandler, Kowalski’s would be a name known to all students of baseball history.

It is difficult to know how baseball would have been affected had the Supreme Court ruled differently in Toolson/Kowalski/Corbett.  To have held that Organized Baseball was subject to the antitrust laws was not necessarily the same as ruling that the challenged practices would have been found to be antitrust violations.  It seems fairly certain, however, that such a decision would have ushered in an era of free agency at the major league level and likely would have expedited the creation of an effective players’ union, particularly once the owners grasped that the only way to avoid the harsh lash of antitrust law was to convince the union that certain labor restraints should be included in the collective bargaining agreement.  Minor league baseball almost certainly would not have survived in its traditional form.   

The defeat before the Supreme Court was in some ways anti-climatic for the players involved in the challenge to the antitrust exemption.  The baseball careers of Walter Kowalski, George Toolson, and Jim Prendergast were already over by November of 1953, and the three men had moved on with the rest of their lives.  Toolson was working as a film printer for a Hollywood studio, and Prendergast had gone into the beer distribution business in Syracuse, and would later run unsuccessfully for Congress. 

How Walter Kowalski spent the years immediately following his retirement from baseball does not appear to be recorded, but in 1955, he accepted a job with IBM in Kingston, New York, the town in which he had starred as a hard hitting third baseman in 1947.  (Somewhat ironically, the minor league career of Kowalski outlasted that of Kingston by one year.  Minor league baseball had been revived in the New York village in 1947, and it ended, apparently forever, in 1951.) 

At some point Kowalski moved to the IBM office in nearby Poughkeepsie where he worked until his retirement in 1993.  For the final 50 years of his life, he resided in Red Hook, New York, where he and his wife raised 12 children.  He was an avid golfer and a supporter of youth baseball.  At his death, he was survived by his wife and all but one of his children as well as several grandchildren and great=grandchildren.

George Toolson died in 1987, and Jim Prendergast passed away on his 77^th birthday in 1994. The last surviving justice from the Supreme Court that decided Toolson, Justice Stanley Reed, died in 1980, as did Maurice Koodish, Kowalski’s original lawyer.  Frederic Johnson died in 1985.  Although he long outlived all of the participants in his famous Supreme Court case, it does not appear that anyone ever interviewed Walter Kowalski about his role in the landmark 1953 decision that, with better luck, would have borne his name. 

But of course, when it came to baseball, luck was usually not with Walter Kowalski. 

The antebellum debates were ultimately resolved by the Fourteenth Amendment, and in particular the Privileges or Immunities Clause. So I wrote a paper about how the Privileges or Immunities Clause had a forgotten purpose that would mediate an entrenched conflict between states over an inconsistently codified sociolegal status. Of course, that argument will have the most contemporary relevance if such a conflict in fact develops. But it’s not at all clear that we are heading that way. There’s another model of sociolegal change when it comes to anxiety over travellers bearing destabilizing statuses: divorce.

There is, I think, a fairly interesting article yet to be written on the history of the conflict in the early twentieth century over interstate recognition of divorces. The Supreme Court decided no fewer than 17 divorce cases between 1901 and 1957. The controversy over one of those cases, Williams v. North Carolina, 317 U.S. 287 (1942), prompted Justice Robert Jackson to write a book about such interstate conflicts, Full Faith and Credit: The Lawyer’s Clause (1944). A number of states, with Nevada leading the way, eased their divorce laws in the early twentieth century, and with the increasing ease of travel, married individuals were travelling to such states with the purpose of getting a divorce they could not secure at home. This caused conflicts over whether such status determinations needed to be recognized by other states. The conflict concerned not only the changing view of marriage, but also the role of women in society. The women’s movement was a part of the Progressive program of the early twentieth century, culminating in the right to vote.

But the conflict over divorce never became entrenched; instead, it dissipated. It turned out that the friction over divorce was due to a different rate of change in divorce law in the various states, but that change eventually became uniform, and with it the conflict disappeared. It is possible that same-sex marriage and gay rights generally are heading toward this conclusion; the difference between now and just 15 years ago is striking. If so, the second coming of the Privileges or Immunities Clause that I describe in my article will have to wait for another day.

[Cross-posted at PrawfsBlawg.]

The story is probably apocryphal in its origins, although it was certainly used by later deans to emphasize the difficulty of legal study.  Today, the story is usually told to illustrate how lax legal education has become in the modern era.

To the extent that that this story reflects past reality, it is actually a commentary on how easy it was to get into most American law schools before the great surge in applications that began around 1970.  Even Harvard Law School did not reject a qualified applicant until 1939 (although it is true that Harvard had stiffer entrance requirements than most law schools in the first half of the twentieth century.)

Most law schools accepted all applicants who met their minimum entry requirements and then let the chips fall.  Those who could handle the work continued to graduation.  Those who couldn’t either flunked out or dropped out.  

History does not record whether Dean Max Schoetz delivered the “look to your left” speech when he greeted the entering class at the Marquette Law School in the fall of 1919.  But if it did, and had he used the softer version of the story, his prediction would have been borne out by subsequent events.  There were 92 students enrolled in the first post-World War I day division entering class, and only 66 made it to the second year.  One of those who did not was Milwaukee native Pat O’Brien, who later became famous as a Hollywood actor (e.g., The Front Page, The Knute Rockne Story).

Whether O’Brien and the other 26 students who didn’t continue on for a second year flunked out or merely decided to pursue a different path in life is difficult to determine.  To remain eligible to continue, students had to pass more than half their courses, and 70 constituted a passing grade.

Admission requirements for the law school in 1919 were fairly modest.  Ordinarily a student had to be a high school graduate and have attended college for one year.  However, if an applicant was a high school graduate who had not yet attended college, he or she was allowed to enroll in a four-year program at the law school in which most second-year courses were taken in the college—essentially to meet the one year of college requirement.  This turned out to be a popular alternative, particularly for veterans like O’Brien who were anxious to get on with their careers.  Twenty-nine of the 66 students who entered the day program in the fall of 1919 and continued on for a second year were admitted under this option.  Students who were not high school graduates could opt to take a special examination, and if they passed it they were admitted as well.  Anyone could enroll in the four-year night program whether or not they had finished high school, and 63 individuals did.  The total first year enrollment of 155 in the fall of 1919 was the largest in the school’s history.

Under a recent change necessitated by Association of American Law School guidelines, night students were not eligible to receive a law degree from Marquette beginning with the 1919-1920 academic year, but their attendance did qualify them to take the Wisconsin bar exam.  The diploma privilege had not yet been extended to Marquette, so all its law students were required to pass the bar exam before they could begin law practice.  Wisconsin also required that applicants for admission to the bar have completed a high school course or its equivalent, and a few evening students were attending law school and high school at the same time.

Only four students in the day division and only one in the night group were listed as holding college degrees prior to beginning law school.  Most of the students, day or night, hailed from Wisconsin.  Only 11 of 92 first-year day students are listed in the Law School Bulletin as being from outside Wisconsin, and except for a single student from Montana, the others were all from the Midwest: Illinois (3), Iowa (3), Minnesota (2), and Michigan (2).  Only three of the 92 were female.

Ironically, the night division (known as the “Owls”) was geographically a slightly more diverse group.   Out-of-state students accounted for 13 percent of the night class, just ahead of the 12 percent for the day division.  While there were also students from Minnesota (2), the night class featured individual students from the more distant venues of Ohio, South Dakota, Montana, New Hampshire, Virginia, and the Philippines.  Two of the evening students were female and one, Edward Snyder, was a medical doctor.

Attrition was even higher among the ranks of the night class with only 39 of the 63 night students returning for a second year.  Among those not returning were most of the out-of-state students and Dr. Snyder.

In the aftermath of World War I, which had disrupted the vocational plans of so many American men, the law school appeared to be reluctant to impose barriers in the way of anyone who wanted to become a lawyer.  However, it did not appear to be willing to carry along students who were unable or unwilling to meet its academic standards.  It is worth remembering, however, that law school education was not a prerequisite for bar admission in Wisconsin (and most states) in the early 1920’s.  Those who left law school were free to enter apprenticeship arrangements and qualify for the bar that way.  (In fact, they could still count their unsuccessful law school year or years toward the state’s three- year “law study” requirement.)

The following is the curriculum in effect for first-year day students during the 1919-1920 academic year.  The number in parentheses is the number of hourly meetings each week for that particular course.

FALL

The Study of Cases (1)

Criminal Law (2)

Criminal Procedure (1)

Contracts I (3)

Torts I (2)

Personal Property (2)

Common Law Pleading I (1)

Natural Law (1)

Total Hours:  13

SPRING

Contracts II (3)

Torts II (2)

Common Law Pleading II (2)

Agency (2)

Equity (2)

Real Property I (1)

Natural Law II (1)

Legal Bibliography (1)

Total Hours: 14.

The Natural Law course was taught by the university president, Rev. Herbert Noonan; Personal Property and Legal Bibliography were taught by Dean Schoetz.

Each course had a written examination at the end of the term, which meant that full-time day-division students took 15 exams during their first year of law school, seven in fall and eight in the spring.  Students in the 4-year program — those who lacked prior college credits — took year-long courses in English and Argumentation in lieu of Contracts I & II, Criminal Procedure, Personal Property, Agency, and Equity.

However, it was by no means the first visit of a United States Supreme Court justice to the law school.  In fact, it was not even Justice Scalia’s first visit.  In 1997, he delivered the annual Hallows Lecture, that year entitled,”A Matter of Interpretation: Federal Courts and the Law.”

The record is not entirely clear when a Supreme Court Justice first visited the law school. 

In August of 1909, Justice David Brewer (pictured at the top) came to Milwaukee to address the annual meeting of the Northwestern Life Insurance Company, and while here Brewer almost certainly visited his friend James Jenkins.  The two men had known each other as fellow federal judges for many years, and they had served together on the American Bar Association special committee that drafted the original Canons of Ethics which were promulgated in 1908.  In 1909, Jenkins was, of course, the dean of the Marquette Law School.

On the other hand, in August 1909, the law school was in summer recess—the last classes had been held on June 24, and the 1909-1910 academic year did not begin until September 13.  Moreover, there was no separate law school building in 1909.  The Mackie Mansion would be taken over by the law school in 1910, but prior to that classes were held in Johnston Hall. So it is hard to know if Brewer actually visited the “law school” and if he did, it would have been while classes were not in session.

In August 1912, Marquette sponsored a reception for the Association of American Law Schools which was meeting in Milwaukee in conjunction with the American Bar Association.  Present at the meeting was future Supreme Court Chief Justice Harlan Fiske Stone.  Stone was then the dean of the Columbia Law School, so it seems likely that he would have attended the reception and may have visited the law school as well.  (Future Supreme Court Justice George Sutherland was also a speaker at the 1912 ABA meeting in Milwaukee.)

Later that year President (and future Supreme Court Justice) William Howard Taft visited the Marquette campus during his reelection campaign and likely visited the law school as well.  (At the time the law school was in the Mackie Mansion which was on the site now occupied by Sensenbrenner Hall.)

The first documented visit by a sitting Supreme Court justice to the law school came in 1958 when Justice Tom Clark delivered an address in honor of the law school’s 50^th Anniversary.  Clark’s address was entitled, “The Supreme Court as the Protecter [sic] of Liberty Under Law.”  This visit occurred during the deanship of Reynolds Seitz.

Clark was the first of three Warren Court justices to visit the law school between 1958 and 1968. In 1965, William Brennan was the speaker at the annual Law Review banquet, and three years later, William O. Douglas appeared at the ceremony marking the opening of the new law library.

More recently, Chief Justice William Rehnquist was the 1988 Marquette University Commencement speaker.  As mentioned above, Justice Scalia delivered the 1997 Hallows Lecture, and in 2008, retired Justice Sandra Day O’Connor appeared at law school for a Mike Gousha interview.

For now, that appears to be the complete list of Supreme Court justice visits, although it seems possible that other justices may have visited law school between 1912 and 1958, but that records of those visits have not yet surfaced.

For example, Justice Pierce Butler, who was Roman Catholic and who served on the Supreme Court in the 1920’s and 1930’s, regularly passed through Milwaukee on his way from Washington to his home in Minneapolis.  It would be no great surprise to learn that somewhere along the line Justice Butler paid a visit to the law school.

The remarks delivered by several justices on the occasion of their visits to Marquette have been published in the Marquette Law Review.  These include:

Justice Clark  (43 Marq. L. Rev. 11)

Justice Brennan (48 Marq. L. Rev. 437)

Chief Justice Rehnquist (72 Marq. L. Rev. 145)

I owe a special debt of thanks to our alumnus Daniel Suhr for the idea for this post and for his assistance in collecting this information.

 Having undertaken, for the glory of God and advancement of the Christian faith and honor of our King and country, a voyage to plant the first colony in the northern parts of Virginia, do these present solemnly and mutually in the presence of God and one of another, covenant and combine ourselves together into a civil body politic, for our better ordering and preservation, and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute and frame just and equal laws, ordinances, acts, constitutions and offices, from time to time, as shall be thought most meet and convenient for the general good of the colony, until which we promise all due submission and obedience.

 The Pilgrims fashioned this secular covenant to have an agreement for governance when they disembarked from the Mayflower. 

 The passengers onboard the Mayflower originally intended to go to the Hudson River in New York, but bad storms set them off course.  William Bradford recorded that the ship also “’fell amongst dangerous shoals and roaring breakers.’”  On that basis, the captain decided to back to New England, instead of going moving on to the Hudson. 

On board were two groups of passengers other than the crew:  the Leideners, who were the Pilgrims who had lived in Holland, and the Separatists, who had been recruited by merchants to travel to the new land.         

 The passengers were in an “uproar” when they heard that the Mayflower was heading to New England.  Some Strangers said that “’when they came ashore they would use their own liberty, for none had power to command them.’”  The future settlement was “in serious peril,” according to Philbrick.  The Strangers “had little holding them together except, in some cases, a growing reluctance to live in a community dominated by religious radicals.”  The Leideners were a tight group, sharing a common faith and background from having lived together in Holland.  Some of the Strangers and the Leideners realized that the only way to secure the settlement was to “sign a formal and binding agreement of some sort.” 

In the Mayflower Compact, the Strangers and the Leideners agreed “to submit to the laws drawn up by their duly elected officials.”  Philbrick writes that this “civil covenant would provide the basis for a secular government in America.”  All men who were healthy enough to set foot on land had to sign the Mayflower Compact and must do so before leaving the ship.  Forty-one men signed the Mayflower Compact on November 11.

 The passengers who drafted the Mayflower Compact had tremendous foresight.  The compact guided the actions of the two very different groups of people who came together to form the Plymouth settlement, especially in light of the hardship they endured in the coming months as they tried to survive the winter and establish their new home in the wilderness. 

Happy Thanksgiving.

The United States Supreme Court rarely addresses issues directly involving the law of wills and trusts.  Like most legal questions involving the transfer of private property between private citizens, such matters have usually been left to state courts.  Federal courts have even adopted special rules, like the so-called “probate exception to federal jurisdiction,” to keep wills- and trusts-related matters out of federal courts.  (This principle, described by Judge Richard Posner as “one of the most mysterious and esoteric branches of the law” prohibits federal courts from entertaining a suit that encroaches on the jurisdiction of state probate courts.)

Occasionally, a trusts and estates case reaches the Supreme Court because it involves an issue of an unconstitutionally discriminatory category or a question of federal preemption.  In ­­­­­­­­­­­Trimble v. Gordon, 430 U.S. 762 (1977), the Court declared invalid Illinois’ blanket ban on the fraternal inheritance rights of illegitimate children on equal protection grounds.  In the more recent case of Eglehoff v. Eglehoff, 532 U.S. 141 (2001), the Court ruled that on the question of the rights of a former spouse to her former husband’s ERISA-regulated pension plan, state laws automatically terminating the rights of the ex-spouse upon divorce were preempted by ERISA, which had no such provision.

However, most decisions of this sort have had very little practical impact on the operation of the rules that govern intergenerational wealth transfers.  Trimble had relatively little impact on inheritance law generally, other than to expand one category of “heir.”  Siimilarly, Eglehoff has actually led to surprisingly little pre-emption, as lower federal courts have been regularly “discovering federal common law principles” that allow ERISA provisions to be interpreted in ways that line up perfectly with the state laws they supposedly supersede.

Cases involving the regulation of Native American property rights have raised the abstract question of whether the United States Constitution recognizes a citizen’s constitutional right to dispose of his or her property at death.  Although the Supreme Court reversed its earlier pronouncements and recognized such a right in Hodel v. Irving, 481 U.S. 704 (1987), the decision had no effect whatsoever on anyone other than the Native Americans subject to the Indian Land Consolidation Act of 1983 (which was at issue in the Hodel case).

To find a Supreme Court decision that significantly altered the course of the development of the law of trusts and estates, one arguably has to go back to 1875 and the case of Nichols v. Eaton, 91 U.S. 716 (1875).  That case recognized the legitimacy of the spendthrift trust and paved the way for its widespread acceptance as a legal means of protecting one’s beneficiaries from the meritorious claims of their creditors.

Under a spendthrift trust, the creator of the trust, the settlor, restricts the ability of the beneficiary of the trust to alienate his or her interest, either voluntarily or involuntarily.  This means that an impatient beneficiary cannot transfer his or her interest in the trust, which was likely to amount to a source of annual income, in exchange for a lump sum payment.  More importantly, it keeps the beneficiary’s creditors from attaching the income stream from the trust, as they could with wages under typical garnishment laws.

The idea that the beneficial interest of a trust could be made inalienable was a controversial suggestion in mid-19^th century legal circles.  British courts categorically rejected the idea on public policy grounds.  (And they still do.)  John Chipman Gray, the great 19^th-century Harvard law professor and treatise writer on property related topics, considered such an idea to be an injustice, and possibly an abomination.  In fact, Gray wrote his famous treatise on Restraints upon Alienation (1883) specifically to denounce the idea of the spendthrift trust.  Although a few states like New Jersey provided some limited spendthrift protections by statute, when such trusts began to appear after the Civil War, only the courts of Pennsylvania and Massachusetts were initially receptive to the general idea that they served a socially useful function.  Even in Massachusetts, the matter remained hotly contested until 1882, when the state’s Supreme Judicial Court issued its opinion in Broadway National Bank v. Adams.

However, in 1875, the United States Supreme Court weighed in favorably on the spendthrift trust in Nichols v. Eaton.  In a Rhode Island case that was in the federal system because of the diversity of citizenship of the parties, the court was required to interpret the legitimacy of a specially designed testamentary trust.  The trust in question provided a lifetime interest for the testator’s children but also provided limitations on the ability of creditors to reach the life interest.  In an opinion for a unanimous court, Justice Samuel Miller refused to invalidate the “sprendthrift” provisions.  While acknowledging that such a restraint would not be recognized by British courts, Miller was not persuaded that public policy dictated against such provisions.

Miller wrote, “[T]he doctrine that the owner of property, in the free exercise of his will in disposing of it, cannot so dispose of it, but that the object of his bounty, who parts with nothing in return, must hold it subject to the debts due his creditors, though that may soon deprive him of all the benefits sought to be conferred by the testator’s affection or generosity, is one which we are not prepared to announce as the doctrine of this Court.”

Although the use of the spendthrift trust did not increase dramatically in the immediate aftermath of Nichols v. Eaton, the decision proved to be a great source of legitimacy for the concept.  Over the course of the next twenty years more and more trusts were established with spendthrift clauses, and more and more state courts sanctioned their use.  By the 1890’s, even John Chipman Gray had to concede that the spendthrift trust was an accepted part of the legal landscape.  As he admitted in the second edition of Restraints upon Alienation in 1895, “State after State has given its adhesion to the new doctrine.”

The creditor-protection features of the spendthrift trust became a central feature of estate planning in the twentieth and twenty-first centuries.  Long ago, the debate over spendthrift trusts shifted away from their legitimacy to questions like whether there ought to be an exception to the spendthrift principle for claims of child support or compensation for personal injury.

Although the original rule was that a trust could be a spendthrift trust only if it contained express language to that effect, many states have now reversed that presumption.  In New York, for example, all trusts are presumed to be spendthrifts, unless the language creating them contains an expression to the contrary.  This approach appears to be will on its way to becoming the new majority rule, and reflects the triumph of Justice Miller’s views expressed in Nichols v. Eaton.

The Supreme Court of the United States did not create the idea of the spendthrift trust in 1875, but it did, for better or for worse, greatly facilitate its development.

Charles Evans Hughes (1862-1948) was one of the great luminaries of American Law.  He is the only individual to have served two separate stints on the Supreme Court (1911-1916 and 1930-1941, the latter as Chief Justice).  He also served as Secretary of State in the Harding and Coolidge administrations, and he and William Howard Taft are the only two men in American history to have both served on the Supreme Court and have been a major party nominee for president of the United States.  However, unlike Taft, who was elected president  in 1908, Hughes lost the presidential election of 1916 to incumbent Woodrow Wilson, although in terms of electoral votes, it was one of the closest elections in American History.  (Wilson won by an electoral vote margin of 277-254.  Had less than 2,000 Californians switched their votes from Wilson to Hughes, Hughes would have become the 29^th president of the United States.)

Hughes’ connection to Marquette came shortly after the 1916 election.  Although Woodrow Wilson ran for re-election with the slogan “He kept us out of war”[World War I], barely a month after the beginning of his second term, the U.S. declared war against Germany and the other Axis powers.  The declaration of war led to a mobilization of the American economy under the direction of the national government that was without precedent in American history, and at least some observers questioned the constitutionality of the actions of the Wilson Administration and Congress.

By the summer of 1917, Hughes had returned to the private practice of law in New York City, but he quickly came to the defense of the policies of his former rival.  In an address entitled “War Powers under the Constitution,” delivered to the American Bar Association at its annual meeting on September 5, 1917, Hughes endorsed the broad interpretation of presidential power embraced by President Wilson.  The address was widely hailed by those who supported the American war effort and thousands of copies of the address were distributed to newspapers and other groups by the ABA.

The address was also published as the lead article in Volume 2, Issue 1 of the Marquette Law Review, which appeared only a few months after the address was first delivered. The law review had been founded only the year before, and the journal received a major boost in credibility and visibility with the presence of Hughes already famous address in what was only its third issue.

As the Law Review itself noted at the opening of the issue, “The Marquette Law Review starts its second year as a legal publication with a great deal more confidence than it did the previous year.”  Being able to attract contributors of the stature of Charles Evans Hughes was indeed a reason to feel confident.

How it was that the Marquette Law Review acquired the rights to be the only law review to publish Hughes’ address is not clear.  The Review itself revealed no such information, although in an editorial it did thank Hughes for granting it permission to publish the address.  None of Hughes’ biographers make any reference to a Marquette connection; however, one is tempted to speculate that the connection came through faculty member Carl Rix, who was the law review’s faculty adviser in 1917, and who was an active member (and a future president) of the American Bar Association.

While Rix may be the connection, he did not attend the 1917 ABA meeting which was held in Saratoga Springs, New York.  In fact, that year only two lawyers from Milwaukee, Edward Fairchild and W. A. Hayes, attended the annual meeting , and neither had any connection to the Marquette Law School.

It may simply have been that some enterprising member of the law review staff came up with the idea of contacting Hughes and offering to publish his address.

In any event, its publication brought the law review a great deal of attention, and forever established a linkage between Marquette and Charles Evans Hughes.

O’Brien was born in Wisconsin on May 5, 1889.  His parents, John O’Brien and Julia Cruden O’Brien, operated a farm near Randolph, Wisconsin, on the border of Columbia and Dodge Counties.  Both parent were of Irish descent.  His father was a native of Ireland, while his Wisconsin-born mother was the daughter of Irish immigrants.   O’Brien was apparently named in honor of St. Pamphilius, a now somewhat obscure Christian martyr in the early fourth century. 

O’Brien appears to have rarely used his unusual first name, which was somewhat difficult to pronounce, and he was generally known as Pam or P.J.  (Early Marquette bulletins list him as Pam J. O’Brien.)

At some point in his early life, O’Brien moved to North Dakota, where he attended Valley City Normal College, a teacher training institute.  He enrolled in the Marquette Law School in the fall of 1912, at age twenty-three. 

As a student at Marquette, O’Brien joined the recently founded Nu Nu chapter of the Theta Nu Epsilon fraternity, a fraternal organization that admitted students at the end of their first year of college.  In the early twentieth century, fraternities were major institutions at most American colleges, and Marquette was no exception.  Theta Nu Epsilon was not a legal fraternity, but in the 1910’s there was no formal differentiation between law students and undergraduate students when it came to fraternity membership.

O’Brien’s involvement with Theta Nu Epsilon reminds us that the lines between law and college students were not nearly so sharp in that era as they are today. Initially, Marquette required only a high school diploma for admission to the day division of the law school.  Then, for more than a decade it required law students to have only a year of college, and that year could be taken in combination with the law course.  As a consequence, there was often very little difference in age between students in the college and their full-time counterparts in the law department.

O’Brien was extensively involved with Theta Nu Epsilon, and his involvement continued after he received his law degree in the spring of 1915.  Later that year he was elected as a trustee of the national fraternity, and the following year he became one of its national officers.

After graduation from Marquette, O’Brien remained in Milwaukee to practice law.  He later married a woman named Hazil Underhill, and at some point the O’Briens moved to California.  Pamphilius O’Brien died in Alameda, California, in 1951, shortly before his sixty-first birthday, and just after the thirty-fifth anniversary of his graduation from Marquette.

At Public Discourse, Rob Vischer considers the Supreme Court’s recent decision in Christian Legal Society v. Martinez upholding a requirement at Hastings Law School that recognized student organizations may not exclude students based upon their refusal to accept the organization’s objectives or beliefs. Rob concludes:

The next challenge is clear: we must think seriously about how to help deepen our public discourse about discrimination and diversity to include recognition that associational diversity is a key component of religious and moral liberty, and that even if a university now has the right to make all groups accept everyone, it is a right best left unexercised.

At Ballkinization, Jack Balkin expresses concern over a decision Thursday by a district judge in Massachusetts v. HHS finding that the Defense of Marriage Act violates the Tenth Amendment. 

Jack supports same sex marriage and opposes DOMA, but the view of the Tenth Amendment adopted by Judge Tauro would, in his view, severely restrict the authority of Congress and “undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.” He writes:

The modern state depends heavily on the federal government’s taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA’s direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable– and unconstitutional– to the extent they interfere with state policies regarding family formation as well. Put differently, Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel.

I should note that Judge Tauro issued another decision on Thursday striking DOMA on equal protection grounds.

At the Volokh Conspiracy, Randy Barnett comments on Tom Wood’s recent book, Nullification. The book argues that states have the power to nullify laws that Congress lacks the authority to enact. Professor Barnett is unsympathetic, observing that “[p]olitical activists should not waste their precious energies on sketchy constitutional theories such as the assertion of a state power to nullify unconstitutional laws . . . .”

An interesting aspect of Woods book, at least for us here in Wisconsin, is its discussion of the Wisconsin Supreme Court’s refusal to acknowledge the validity of the Fugitive Slave Act and the decision of the United States Supreme Court in Ableman v. Booth, 62 U.S. 506 (1859). The case grew out of the incarceration in Milwaukee of a fugitive slave named Joshua Glover in 1854. Sherman Booth, who was then editor of the  Milwaukee Free Democrat (later to become the Waukesha Freeman), rode through the streets of the city, announcing ”Freemen! To the rescue! Slave catchers are in our midst! Be at the courthouse at two o’clock!”" A group of citizens answered the call and forcibly removed Glover from the  jail in the Milwaukee County courthouse, then located on what is now Cathedral Square. Glover was spirited away to Canada. The incident is memorialized today by a mural on the McKinley Avenue underpass.

Booth was prosecuted by federal authorities  for violation of the Act, but the Wisconsin Supreme Court twice orderd his release. Although the United States Supreme Court reversed these orders, the Wisconsin Supreme Court ultimately declined to accept the mandate.  The Wisconsin Court, which then sat three, split one to one with one recusal (Booth’s lawyer, Byron Paine, had rode abolitionist sentiment to  seat on the court). Thus, deadlock and impasse has a long history here.  The  state legislature promulgated a “Declaration of Defiance” stating that the United States Supreme Court’s decision was void, without authority and of no effect.

Nevertheless, Booth was ultimately rearrested by federal authorities and, like Joshua Glover, forcibly removed from custody by a group of supporters. He was ultimately recaptured but then pardoned by President James Buchanan shortly before the inauguration of Abraham Lincoln.  He was later involved in the case of Gillespie v. Palmer, which held — sixteen years after the fact — that a referendum conducted shortly after statehood granted the vote to African-American males.

But Booth may not have been quite the saint he might seem to be. As his conviction for violation of the Fugitive Slave Act was being considered by the United States Supreme Court, he was tried for the seduction of a fourteen-year-old girl, Caroline Cook. The trial ended in a hung jury.  Booth died in Chicago just before his 92nd birthday but is buried here at the Forest Home Cemetery.