I was happy to be asked by Michael O’Hear to be the Alum Blogger for March. I hope to avoid “Beware the Ides of March,” but will be happy with “March Madness,” especially if Marquette does well in the Big East tournament and beyond.
I graduated from the Law School in 1967, a tumultuous time for our society that did not exempt the Law School. I had a chance to look back at that period when Gordon Hylton asked me to participate in the Centennial Celebration at the Law School last semester. That caused me to reflect some more on the role of Robert Boden as Dean of the Law School. On one hand, Bob Boden has come to be a generally revered figure by members of the Law School community — students, alumni, faculty and staff. On the other, I, and I think many of my classmates, have viewed him differently, quite negatively. Can these two views be squared?
Why the negativity? Boden came in as Dean and was part of what appeared to be a campaign to sweep clean the School of what we would now call its progressive elements. Some of my class’s favorite professors, for example, Bob O’Connell, appeared to have been forced to leave. Further, Boden announced that no one in the Law School, including students, could participate in local civil rights activities — a boycott of the public schools — aimed at challenging school segregation. He deemed participation to be unprofessional. Finally, the new direction of the Law School appeared to be intended to drop the school beneath the radar of national legal education. Where at one time Archibald Cox, Justice Douglas, Father Robert Drinan, and even Governor George Wallace came to the Law School, little was heard of it for a good long time.
My notion is that it took until the publication of the dreaded U.S. News rankings to treat the local emphasis of the Law School as evidence that the School was near the bottom of all law schools, and that got the attention of the central university administration. It is one thing to be beneath the radar; it is quite another thing when the radar spots you out in a national ranking system. Beginning with Howard Eisenberg and continuing today under Joseph Kearney, the Law School has made tremendous progress on all fronts to be viewed as an excellent law school. Moving into Eckstein Hall will complete the transformation. It is such good news that the Law School is back and no doubt better than ever.
So why is Bob Boden revered? I have been given to understand that, looking back at some distance, he would have liked to have been able to revisit some of his decisions made early in his time as Dean. Further, I have come to learn that he was a very positive force in the lives of many students. Basically, he had quite the personal touch that helped many students academically, professionally, and personally. That deserves respect. And I see a fuller picture of his contributions to the Law School.
In this new era of fierce competition among law schools, the qualities of caring that students learn, that they develop as competent professionals, and that they need to stay true to their basic human values seem sometimes at risk. I may be hopelessly old school, but I hope that excellent teaching and a focus on students never take second fiddle to any of the other activities, especially faculty scholarship, necessary for a law school to excel.
I am delighted that Michael Zimmer is our “alum blogger of the month.” Prof. Zimmer’s first post is at once provocative and thoughtful (a too infrequent pairing). I did not know Dean Boden, who died 25 years ago this past month while still dean (Feb. 3, 1984), although I have a sense of him from alumni, including various members of the current faculty who were his students or colleagues or both. Thus, whether he later repented of some of his earlier positions I cannot say. Yet among the things clear to me (and which Prof. Zimmer seems not to doubt) is that there was much in Bob Boden’s professional life for me as one of his successors as dean or for my faculty colleagues – or for our current students – to emulate. Partly this is the sort of cura personalis to which Prof. Zimmer alludes and about which I continue to hear, unprompted, in my conversations with alumni. It is as well Dean Boden’s service to the legal profession that speaks to me. Whether it was bar work or law reform efforts (insofar as consistent with his views, to be sure), my sense is that the legal community knew that it could turn to Dean Boden for insight and leadership. Indeed, at graduation each year, I invoke the late Dean Boden as for me embodying the principle that the law is a learned profession, just as I invoke the late Dean Howard Eisenberg as for me embodying the principle that the law is a helping profession. All of this is in the context of remarking that I hope that, on our faculty or in the speakers whom we bring to the Law School, we have given the graduating students some folks whom they can themselves recall as examples – and perhaps even seek to emulate – in the years to come. For surely this is a purpose of “formal” legal education. – JDK
I also never met Dean Boden but in working on the Centennial Symposium held this past fall, I had the occasion to read extensively in his writings, many of which, unfortunately, were not published.
I see Boden as a major player in the debates over content and future of American legal education that occurred during the 1960’s and 1970’s. Unfortunately, he was on the “losing” side of almost every issue, a fact that did little, as Mike Zimmer points out, to enhance the reputation of the Law School.
Bob Boden was clearly convinced that American legal educators in the 1960’s had lost their pedagogical compasses and were wandering into unproductive territory. The incorporation of social scientific techniques and other interdisciplinary perspectives into the law school curriculum was something that Boden vigorously resisted, as was any suggestion that one of the purposes of legal education was the training of social activists.
Boden was also convinced that a law school had to be a great local law school before it could be a great national law school, and the local focus of the institution was enhanced during his tenure as dean. During his tenure a majority of new faculty were hired from the ranks of the Law School’s alumni.
The University of Wisconsin, which Boden viewed as the arch-enemy of Marquette in his unplublished historical writings, drew his particular ire, and a number of Wisconsin’s luminaries, like Stewart MacCaulay, went out of their way to disparage the “backward” Dean Boden.
So profound was Boden’s loss of faith in his fellow legal educators that by the 1960’s he largely abandoned any effort to influence the legal academy and instead began to focus his efforts on the organized bar, encouraging it to use its power to set bar admissions standards as a way of reining in the interdisciplinary impulses of the law schools. His effort to convince the Wisconsin Supreme Court to require the diploma privilege courses of all applicants, not just those admitted under the diploma privilege, nearly succeeded. However, in this effort, he largely failed, although Marquette long remained a institution constructed on his principles and the current course requirements associated with the Wisconsin diploma privilege are a product of his influence.
Although Bob Boden regularly emphasized that the purpose of legal education was to train lawyers, and he proudly proclaimed Marquette a lawyers’ law school, his vision of legal education was surprisingly Langdellian. While he celebrated the proletarian (and Catholic) origins of the Law School in his historical writing and contrasted it favorably with that Harvard wannabe, the University of Wisconsin, his own Law School operated pretty much like the Harvard Law School of the pre-World War II era: doctrinal course after doctrinal course taught by the socratic method.
Although Marquette, like most law schools, made small efforts in the movement toward clinical education in the 1960’s and 70’s, legal education for Boden (or at least for Marquette in his era) largely consisted of doctrinal courses. The number of required courses actually increased under his direction, undoing many of the more liberal curricular innovations of his predecessor Reynods Seitz. Relatively little attention was paid to what we today call “skills” training. Furthermore, while Boden spoke regularly about legal ethics and their importance, the Marquette curriculum paid no special attention to the topic (although professional values may have been inculcated in students through more informal mechanisms).
All American law schools became much more selective in the 1960’s and 1970’s as the number of applicants (fueled in part by the large numbers of women and more modest numbers of racial minorities that join the applicant pool for the first time) skyrocketed. When the dust settled, Marquette was in the middle of the pack in terms of selectivity, and it remains there today.
One is tempted to say that the pedagogical and political arch-conservatism of Marquette in the Boden era made it less attractive than it might have been to potential students, particularly those from outside Wisconsin. Of course, there is no way to know what would have happened to the Law School if it had adopted a more mainstream approach in the Boden era. Boden’s presence certainly made Marquette a distinctive law school in the 1970’s, even if it was not a particularly popular one.
On a couple of points in particular, I would question some of Gordon’s conclusions about Bob Boden. Gordon writes that “by the 1960’s he largely abandoned any effort to influence the legal academy.” My perception is that Bob remained both active and influential, serving in the 1970’s on the Council of the Section of Legal Education of the American Bar Association, actively engaging with other religiously-affiliated law schools on matters of common interest, and regularly participating at AALS meetings and in decanal conclaves associated with the two annual meetings of the ABA.
Gordon also states that “while Boden spoke regularly about legal ethics and their importance, the Marquette curriculum paid no special attention to the topic.” My own first year orientation as a beginning Marquette law student in August of 1972 included a one-credit course on the legal profession that emphasized the central role that legal ethics should play throughout our study of the law. Note that this was 1972, the year of the Watergate burglary and a couple of years before the national legal academy’s recognition of the need for greater attention to legal ethics instruction in the wake of the Watergate investigation.
Bob Boden had a distinctive vision of the legal profession and legal education. That his vision did not become the national model might, I suppose, justify its characterization as the “losing side.” But his consistent curricular theme was that legal education must take as its core mission the preparation of students for the practice of law, and in this respect, the serial national curricular reforms such as the MacCrate and Carnegie reports continue to echo his theme.