Time for the NHL to Consider Contraction

With the National Hockey League lockout now well into its second 100 days, and with chances of there being a 2012-13 season looking more and more remote, some NHL owners are apparently thinking about expanding the number of teams in the league from 30 to 32. The most frequently mentioned locations for new teams are Seattle and Quebec.

Apparently, the idea is that the labor dispute will be settled eventually, and that current owners could make up for some of their losses by dividing up sizeable expansion fees from the two new teams.

In reality, the best thing for the NHL would be to contract back to 21 teams, the number it had between 1979 and 1991, which is increasingly looking like the league’s golden age.

In 1979, the then 17-team NHL agreed to add four teams from its former competitor, the World Hockey Association. For the next twelve seasons, the league played with three 5-team and one 6-team divisions. The growing popularity of NHL hockey in the early 1990’s led the league to somewhat ambitiously add nine teams between 1991 and 2000. In retrospect, this decision to expand the league into new markets in the southern half of the United States is a major source of the league’s current financial problems.

The league simply has too many teams and too many teams in markets that will not support major league hockey.

How would one decide which nine teams to jettison and which 21 to keep? The goal could be reached by simply eliminating the nine post-1991 expansion teams, but that would overlook the fact that a few of the expansion teams—the San Jose Sharks, the Ottawa Senators, and the Minnesota Wild—are among the league’s more financially successful teams.

Fortunately, the recent Forbes Magazine franchise value evaluations provide the data that makes such a determination fairly simple.

According to Forbes, there are currently 20 NHL franchises with valuations of more than US $200 million, ranging from the Toronto Maple Leafs (worth an estimated $1b) to the Winnipeg Jets (worth $200m). Similarly, there were 20 franchises that had revenues during the 2011-12 season in excess of $95 million, ranging from Toronto ($200m) to Buffalo ($95m).

A total of 21 teams appear on these two lists. Nineteen are on both, with only Colorado (21st in terms of revenue) and Buffalo (22nd in terms of estimated value) appearing on one list but not the other. The nine franchises that appear on neither of these lists are the logical ones to eliminate.

The nine “to be folded” franchises are, in descending order of value according to the Forbes estimates: Anaheim Ducks, Tampa Bay Lightning, Florida Panthers, Nashville Predators, Carolina Hurricane, New York Islanders, Columbus Blue Jackets, Phoenix Roadrunners, and St. Louis Blues.

Six of the nine are post-1991 expansions teams, and Phoenix is a transformed beyond recognition version of the original Winnipeg Jets, since restored to Winnipeg in the form of the transferred Atlanta Thrashers. The other two teams, the New York Islanders and the St. Louis Blues, have been around for a much longer time.

The Islanders were founded in 1970, and a decade later began one of the greatest runs in North American sports history. The team won four consecutive Stanley Cups from 1980 to 1983, and almost won a fifth title, before losing in the Cup finals to Wayne Gretzky’s Edmonton Oilers in the 1984. However, for the past 20 years, the Isles have been one of the Sad Sacks of the NHL, qualifying for only 6 of the last 21 Stanley Cup play-offs and only one of the past seven.

Attendance has also tumbled as it has become clear that New York is not a good enough hockey town to support three NHL teams. The Islanders ranked dead last in the NHL in revenue last year with a total that was less than 80% of that garnered by the 29th ranked team (Phoenix).

The St. Louis Blues date back to 1967, when they were part of a decision to increase the size of the league from six teams to twelve. Thanks to a decision to put all of the expansion teams in their own division, the Blues played in the Stanley Cup finals their first three seasons in the NHL (1968 to 1970), but have not been back to the finals since. In most years, they have made the post-season, but they have usually exited early on. In the past 25 years, they have won only two division titles, and have a post-season series record of 12-19.

Losing the St. Louis franchise would be disappointing for me personally. I was a Blues season ticket holder from 1991 to 1993, and I have followed the team ever since. However, it is hard to deny the facts: the Blues are the least valuable franchise in the NHL, and their value has been declining rapidly. To flourish, the NHL needs to get rid of franchises like the Blues, and St. Louis will do fine without the team.

What would be left if these nine teams were eliminated? Simply an NHL on a much sounder financial footing with a much higher caliber of play (as only 70% of current players would still be in the league, with their less talented teammates returned to the minor leagues or to Europe).

Imagine the following divisional line-ups.

Northern Division: Montreal Canadiens, Boston Bruins, Ottawa Senators, Toronto Maple Leafs, Buffalo Sabers.

Eastern Division: New York Rangers, Pittsburgh Penguins, Philadelphia Flyers, Washington Capitals, New Jersey Devils

Midwest Division: Detroit Red Wings, Chicago Black Hawks, Dallas Stars, Minnesota Wild, Winnipeg Jets, Colorado Avalanche

Western Division: Vancouver Canucks, Los Angeles Kings, Calgary Flames, Edmonton Oilers, San Jose Sharks

With one-third of the teams in Canada and only three “warm weather” cities (LA, San Jose, and Washington), the league’s “old-time hockey” feel would be restored.

Dramatic contractions have occurred before in American sports history. In 1890, there were three major league baseball leagues with 24 teams. Multiple teams in single cities were the norm. After a negotiated settlement, the total was reduced to two leagues and 16 cities in 1891. In 1892, it was further reduced to one league and 12 teams, and in1900, to eight teams.

Similarly, between 1926 and 1927, the number of teams in the National Football League was reduced from 22 to 12. In 1950, the NFL and the competing All America Football Conference combined, and in doing so reduced the total number of teams from 18 in 1948 to 13 in 1950, and 12, in 1951. The National Basketball Association began play with 17 teams in 1949, but reduced the number of teams to 11 the following year and to eight in 1953-54.

In each case, teams were eliminated to insure the economic profitability of the remaining clubs.

Obviously, it would not be an easy task to buy out the nine NHL franchises identified for contraction. According to the Forbes estimates the combined value of the nine franchises is $1.43 billion. On the other hand, it is telling that the combined value of the nine weakest franchises is significantly less than the value of the Maple Leafs and Rangers ($1.75 billion), the two most valuable franchises.

Continue ReadingTime for the NHL to Consider Contraction

Before There Were “Red” and “Blue” States, There Were “Free” States and “Slave” States

In recent years, commentators have talked incessantly about the United States being divided between “red” states and “blue” states.  However, as Professor Idleman’s recent post on Alabama’s 1819 admission to the Union noted, an even more fundamental distinction in pre-Civil War America was the divide between “slave” states and “free” states.  Ultimately, the fear on the part of the white population of the slave states that the free states were no longer committed to the preservation of their “peculiar institution” led to the dismemberment of the Union and a bloody four-year war to reassemble it.

For the first portion of the antebellum period, the free-state versus slave-state description was more general than precise, as African slavery was initially a continental phenomenon.  In 1776, slavery existed in all of the thirteen colonies (though apparently not in Vermont, which was then officially part of New York).

In 1780, Pennsylvania became the first state to abolish slavery when it adopted a statute that provided for the freedom of every slave born after its enactment (once that individual reached the age of majority).  Massachusetts was the first to abolish slavery outright, doing so by judicial decree in 1783.  The remaining New England states–New Hampshire, Connecticut, and Rhode Island–adopted gradual emancipation schemes modeled on Pennsylvania’s statute in the mid-1780s, and the United States Congress abolished slavery in future states north of the Ohio River in the Northwest Ordinance of 1787.

Gradual emancipation came to New Jersey in 1804 and to New York in 1817, albeit with an operational date of July 4, 1827.  In 1828, New York abolished slavery outright, as did Pennsylvania in 1847 (an act that liberated the state’s fewer than 100 remaining slaves).  Somewhat unusually, New Hampshire appears to have formally abolished slavery in 1857 (apparently more than a decade after the death or manumission of the last New Hampshire slave).

Between 1840 and 1850, the last slaves in Connecticut, New Hampshire, and Rhode Island either died or were emancipated, and, as a result, the only northern state where slavery continued to exist after 1850 was New Jersey, where it was limited to slaves born before 1805.  Technically, slavery had still not died out in New Jersey by the time of the Civil War.  The United States Census recorded 236 slaves in the Garden State in 1850, and 18 in 1860 (though by 1860, the 18 individuals were classified not as “slaves,” but as individuals “indentured for life”).

Even though gradual emancipation statutes left a handful of individuals in bondage down to the time of the Civil War, from 1817 onward, every state in the northern and western United States had committed itself to a future without slavery.

However, no such developments were forthcoming in the South.  Although an effort to adopt a very gradual emancipation plan almost passed in Virginia in 1832, by 1861, slavery had not been abolished in any Southern state.  Even in Delaware, where the number of slaves had dwindled to less than 2000 by 1860, the institution remained legally alive.  And while a vigorous two-party competition had characterized Southern politics for much of the ante-bellum period, support for the institution of slavery created a cohesive Southern regional identity.

One of the central constitutional questions in pre-Civil War America was the extent to which the national government could regulate slavery.  (As Virginian John Marshall observed in a different context, “The power to regulate is the power to destroy.”)  Obviously, the greater the involvement of Southerners in national affairs and the greater their control of the institutions of governance, the greater their capacity to protect the institution of African slavery.

Southern control and influence was weakest in the legislative branch.  From the beginning, Southerners were a distinct minority in the House of Representatives. (By Southern, I am referring to any state south of the Mason-Dixon Line or the Ohio River, plus the Southwestern states of Louisiana, Missouri, Arkansas, and Texas.)

In the First Congress (1789-1791), for which the size of Congressional delegations was specified in Article I, Section 2 of the Constitution, Southern delegations accounted for 30 of 65 members of the House of Representatives, or 46% of the total.  In 1799, when there were sixteen states and the House had been reapportioned based upon the First United States Census in 1790, the eight Southern delegations still accounted for 46% of the members of the House of Representatives.

By 1809, the number of states, with the addition of Ohio, had grown to seventeen, but the Southern percentage in the House of Representatives remained at 46%.  By 1819, the number of states had grown to 21, with the addition of Louisiana, Indiana, Mississippi, and Illinois, and the Southern percentage had declined slightly to 44%.  By 1824, following the admission of Alabama, Maine, and Missouri, and the 1820 United States Census, the percentage dropped again to 42%.

In other words, between 1789 and the early 1830s, when representation was reapportioned on the basis of the 1830 United States Census, Southern representation in the House of Representatives varied only from 42% to 46%.  The number continued to erode slowly after 1830, and after the 1850 Census representatives of the 15 slave states accounted for 38% of the House membership.  Had the Civil War not intervened, the Southern percentage would have further declined to 36% in 1862.

Unlike the situation in the House, for most of the antebellum period, the Senate was essentially equally divided between North and South.  For a three year period (1845-1848), Southerners actually held a majority of the seats in the Senate, but after 1850 slave state senators became a permanent minority in Congress’ upper chamber as well.

By the end of the first session of the First Congress there were 12 Northern and 12 Southern senators.  However, when Rhode Island finally ratified the Constitution in 1790, Northerners gained a two seat margin, which increased to four with the admission of Vermont in 1791.  Parity returned in the mid-1790s, with the admission of Kentucky (1792) and Tennessee (1796).

The Northern majority returned in 1803 with the admission of Ohio, where slavery was banned by the Northwest Ordinance, and remained until the admission of Louisiana in 1812.  The admission of Indiana, Mississippi, Illinois, and Alabama between 1816 and 1819 kept the Senate balanced, as did the paired admission of Maine and Missouri under the terms of the Missouri compromise in 1820 and 1821.

The Senate actually gained a Southern majority for the first time in June of 1836 with the admission of Arkansas, but this was countered by the admission of Michigan seven months later.  The admission of Florida in March 1845, followed by the annexation of Texas later the same year, gave the South a four seat majority in the Senate, but this was countered by the admission of Iowa in 1846 and Wisconsin in 1848 (originally scheduled for 1846, but delayed by the failure of its proposed constitution in a statewide referendum).

The return of the northern majority to the United States Senate came in 1850 with the admission of California as a free state.  (The organization of New Mexico and Utah Territories without regard to the status of slavery as part of the Compromise of 1850—which opened them to slavery– may have been motivated by a desire to facilitate the creation of future slave states.)

This two-vote free-state edge continued throughout the 1850s until 1858, when Minnesota was admitted to the Union, over the objections of most, but not all, Southern congressmen.  (The Minnesota Enabling Act of 1857 was, for example, opposed by 22 of 30 Southern senators.)

The violent controversy over the status of slavery in Kansas Territory may have been motivated, in part, by a concern that the free-state majority in the Senate not grow too large.  However, the 1859 admission of Oregon (whose state constitution prohibited both slavery and settlement by free African-Americans) and the adoption of an anti-slavery constitution by the Kansas Territory in 1859, created an even larger free state majority in the Senate.

By 1860, it was clear that if Congressional voting on issues of slavery were to occur on sectional lines, neither the House nor the Senate would support the South’s position.

On the other hand, the South was much more successful in controlling the executive and judicial branches of the government, especially the offices of President and Supreme Court justice.  Southerners accounted for a majority of United States presidents and Supreme Court justices during the antebellum period.  Thirteen of the first 16 presidential elections were won by Southerners,* and the two subsequent winners (Franklin Pierce and James Buchanan) were famously “Northern men of Southern principles.”

Southerners who were also well represented in presidential cabinets, as 13 of 21 Secretaries of State between 1790 and 1860 were Southerners, as were 12 of 24 Secretaries of War, 13 of 23 Secretaries of the Navy, 14 of 23 Attorneys General and 6 of 12 Postmasters General. (On the other hand only 8 of the first 22 Secretaries of Treasury were from the South.)

Southerner dominance on the Supreme Court was even more pronounced, as 19 of the 33 justices who served on the Court before 1861 were from Southern States, even though the early justices were selected by a formula designed to ensure geographic balance.   The pattern continued throughout the antebellum period as the Court possessed a Southern majority from 1801 to 1830, and from 1837 to 1861.

However, by the end of the 1850s, Southerners appeared to be on the verge of losing control of these institutions as well.  In the fall of 1860, the South lost the presidency to a Republican who, though Southern-born, was adamantly opposed to the expansion of slavery.  The Supreme Court, which had a five-man Southern majority at the outset of 1860, along with three Northern justices identified with the pro-slavery wing of the Democratic Party, may still have been in Southern hands, but the prospects of it remaining so were uncertain following the election of Lincoln.

In 1858, a coalition of Republicans and anti-slavery Northerners in the Senate had nearly been able to block James Buchanan’s appointment of the pro-slavery Democrat Nathan Clifford of Maine to the Court.  Following the May 1860 death of the militantly pro-slavery Justice Peter Daniel of Virginia, Buchanan had been unable to (or unwilling) to nominate another Southerner to take his place.  With six members of the Court ranging in age from 66 to 83, it seemed likely that by the end of Lincoln’s presidency the Court would lose both its Southern majority and its pro-slavery orientation.

By the winter of 1860-61, it had become apparent that the Slave South was in the position of a permanent minority in the United States with little likelihood of controlling any of the national governmental institutions.  At that point, for many Southerners secession appeared to be the only option.  The rest, as they say, is history.

* I am counting the winner of the 1840 election as a Southerner.  The actual winner, William Henry Harrison, was born in Virginia and did not move to Indiana/Ohio until he was 18.  However one characterizes Harrison geographically, he was president for only 31 days, and the rest of his term was served by John Tyler, a dyed-in-the-wool Virginian.

Continue ReadingBefore There Were “Red” and “Blue” States, There Were “Free” States and “Slave” States

The Founding of the Marquette Law Review Was a Significant Event in the Law School’s History

The following essay is based on remarks delivered at the April 2011 Marquette Law Review banquet that marked the 95th anniversary of the journal.

In December of 1916, Volume 1, Issue # 1 of the Marquette Law Review rolled off the presses. The new publication announced itself as “A Journal Published Quarterly during the School Year by the Marquette Law Students.” The cover price was 35-cents per number, but an entire year’s subscription could be had for one dollar.

(By way of comparison, tuition and fees for students in 1916 were $60 for day students and $40 for those enrolled in the evening division. Relative to today’s tuition rates, that would be equivalent of $200 for an individual issue and about $600 for a year’s subscription. As current students have probably noticed, the cost of law school has gone up a good bit since 1916.)

Why Did the Marquette Law Review Appear in 1916?

The first two decades of the twentieth century was the time in which law school-based law reviews went from being anomalies to becoming an expected component of legal education at the most prominent law schools. Before 1900, there were six such law reviews: University of Pennsylvania Law Review (1852); the Harvard Law Review (1887); the Iowa Law Review (1891); the Yale Law Journal (1891); the West Virginia Law Quarterly (1894); and the Dickenson Law Review (1897). However, as the following list indicates, the number of law reviews had already grown dramatically between 1900 and 1916, as 20 law schools established law reviews between 1900 and 1920.

Columbia Law Review (1901)

Michigan Law Review (1902)

Oregon Law School Journal (1902, folded 1917)

Illinois Law Review (1906, the law review of Northwestern University)

Maine Law Review (1906, folded 1920)

California Law Review (1912)

Georgetown Law Review (1912)

Kentucky Law Journal (1912)

Virginia Law Review (1913)

Fordham Law Review (1914, closed 1917)

Cornell Law Quarterly (1915)

New Jersey Law Review (1915, closed 1916)

St. Louis Law Review (1915, law review of Washington University)

MARQUETTE LAW REVIEW (1916)

Tulane Law Review (1916)

Law Review of the University of Detroit (1916, folded 1931)

Southwestern Law Review (1916, folded 1918)

University of Illinois Law Review (1917)

Minnesota Law Review (1917)

Wisconsin Law Review (1920)

Another 27 were founded between 1921 and 1930, including, in the Midwest, Chicago-Kent and Nebraska (1922), Indiana and Notre Dame (1925), and Cincinnati (1927).

But the growing popularity of law reviews in the United States in the early 20th century doesn’t explain why Marquette started a law review in 1916, rather than 1908 or 1928, or any other year. Given that there were only two Roman Catholic law schools with law reviews at the start of 1916 (and one of those, Fordham, folded its law review the next year after an unsuccessful three year experiment), and that no midwestern Catholic School had created one, one might have thought that a law review would not have been high on the school’s agenda.

The reasons that Marquette established a law review in 1916 appear to be closely tied to a series of crises that Marquette experienced between 1913 and 1916 which raised questions regarding its worthiness of being included among the nation’s best law schools. While there are few records documenting its founding, it seems clear that the law review was one of a number of innovations adopted by the law school during the deanship of Max Schoetz (1916-1927) that were designed to demonstrate that Marquette belonged in the ranks of the nation’s top law schools.

The Marquette Law School was founded in 1908, when Marquette University, as part of its plan to convert itself from a small college into a university, acquired the 16-year old private Milwaukee Law School and the recently established Milwaukee University Law School (which despite its ambitious name was a stand-alone law school with one professor and only 10 students).

Marquette combined the two schools into a single night division, and in the fall of 1908, a new full-time day division was added as well. James G. Jenkins, a retired federal judge, was named as the first dean. The faculty, all of whom taught part-time, was recruited from the ranks of prominent Milwaukee lawyers and from the lawyers who had taught at the two predecessor schools. Two years later, the school added a second full-time faculty member (in addition to the dean) in the person of University of Chicago law graduate Arthur Richter, who doubled as faculty secretary.

No one connected with Marquette’s new law school appears to have given any thought to the idea of a law review in 1908.

From the beginning, Marquette wanted to have a have a highly regarded, and nationally known, law school. To that end, it applied for membership in the elite Association of American Law Schools in 1911. Although it was passed over for membership the first year, it was admitted in 1912, when the AALS met in conjunction with the ABA in Milwaukee. At the time only 45 of the nearly 200 American law schools were AALS members.

The two primary requirements of the AALS in 1912 was that all members offer a three year law course (which Marquette did, and had to because of the requirements for the Wisconsin bar exam), and they had to admit as degree candidates only students with a high school diploma or the equivalent (which Marquette did, sort of). In addition, member schools were required to maintain a law library of a certain size. Marquette did not meet the library requirement in 1912, but it was admitted based on its promise to remedy this situation as quickly as possible.

In spite of its promising beginning, the law school suffered a series of major setbacks beginning in 1913. Many at Marquette thought that its AALS membership would prompt the Wisconsin legislature to extend the diploma privilege to the new law school. University of Wisconsin graduates had been exempted from the Wisconsin bar exam since 1870, but Marquette graduates had to take it. Unfortunately, a Marquette-backed proposal to extend the privilege to the Milwaukee school was rejected by the Assembly. Crucial to the failure was the unwillingness of the justices of the Wisconsin Supreme Court to support the proposal.

A war of words then broke out in the pages of the American Law School Review between Marquette’s Professor Richter and Professor Howard Smith of the University of Wisconsin Law School. Richter accused the Madison school of hiding its deficiencies with the diploma privilege, which had already been denounced by the American Bar Association. Smith , in turn, noted the hypocrisy of Marquette’s opposition to the diploma privilege only after its efforts to obtain its benefits had been rejected by the state. Both articles relied upon intemperate language, and Marquette threatened to sue for libel, a decision that did not put the school in a particularly good light.

Then, in May of 1916, Marquette was hit by an unannounced inspection by the AALS, prompted, many believed, by allegations by the University of Wisconsin that Marquette was not compliant with AALS regulations. (Wisconsin, in 1911 and 1912, had opposed Marquette’s admission to the organization on the grounds that it was not really a AALS-type law school.) If nothing else, the investigation showed that record-keeping under Dean Jenkins had been chaotic, at best.

Fearing expulsion from the AALS, Marquette moved to make a number of changes. The 82-year-old Jenkins stepped down as dean in August, and University of Wisconsin graduate Max Schoetz was appointed acting dean. Schoetz, a Milwaukee lawyer since 1908, had joined the Marquette faculty in September 1914 as director of the practice court, and in February 1916 he replaced the recently fired Arthur Richter as Faculty Secretary.

In October, Marquette was charged with non-compliance of AALS regulations. (The was part of a broader crackdown by the AALS on member schools that were allegedly not honoring AALS standards, and the same charged was leveled the same year against six other laws Schools: Dickinson, Drake, Hastings, Pittsburgh, Tennessee and Trinity (Duke).

The establishment of the law review was in all likelihood part of Marquette’s effort to prove that it was in fact a law school worthy of AALS membership. On December 27, in the same month that the Marquette Law Review first appeared, Acting Dean Schoetz, Marquette President H. C. Noonan, S.J., Wisconsin Supreme Court member and Marquette faculty member Franz Eschweiler, and law professor Albert Houghton attended the AALS meeting in Chicago prepared to defend the law school and its practices. (It is probably significant that neither Jenkins nor any of the early Associate Deans or secretaries were asked to attend.)

At the meeting Marquette was acquitted of all of the charges against it and was found to be making appropriate progress toward meeting the library requirement. The following August, Schoetz’ “acting” title was dropped, and he was appointed the second dean of the law school at the uncommonly young age of 32.

During his tenure as Dean, Schoetz oversaw a number of additional changes that helped “modernize” the Marquette Law School. The appointment of full-time faculty, the use of the case method as the primary means of instruction, the requiring of first one and then two years of prior college coursework for degree candidates, an emphasis on the secular nature of the law school, the securing of ABA accreditation, and, somewhat reluctantly, the elimination of the night program were all products of Schoetz’ deanship.

Once the crisis passed, one could point to the Marquette Law Review as evidence that Marquette was in fact becoming what Dean Schoetz called the Midwest’s most progressive law school. While the rival University of Wisconsin created its law review four years later, it would always be the case that Marquette had the first law review in the state of Wisconsin.

Who Were the Members of the Original Marquette Law Review Staff?

The original law review staff in the fall of 1916 consisted of 15 students, eight of whom were in their final year of law school. Six were underclassmen, and one was a member of the recently graduated Class of 1916. According to the Law School Bulletin, there were 102 students enrolled that year in the day program and 98 in the evening division.

Although there were seven women in the law school that year, all 15 of the members of the law review were male. Twelve were enrolled in the day division and three in the evening. All were from Wisconsin, but only five hailed from Milwaukee. The communities of Tomah, Marinette, Green Bay, Cuba City, Sheboygan, Appleton, Glenbeulah, Fond du Lac, and Bradley, Wisconsin, were all represented on the original staff.

How the original law review staff was chosen is not known. Law Bulletin descriptions of the law review, which began in 1918, made no reference to the way that staff members were chosen until 1941 when it stated that “the editorial staff is chosen from second- and third-year students on the basis of scholarship.” One suspects, however, that the original staff was made up of volunteers.

Only ten of the 15 original law review staffers eventually graduated from the law school, although it should be remembered that only three years of law study, not graduation from law school, was a prerequisite for eligibility to take the Wisconsin bar exam, and the diploma privilege had not yet been extended to Marquette graduates. (That would not happen until 1934.) None of the three evening students graduated, and one, Joseph R. Fitzsimmons, appears to have dropped out of law school after one semester of working with the law review.

The editor-in-chief was James D. Moran, a senior law student from Tomah, Wisconsin. The only other named positions were business manager, held by Russell M. Frawley, a junior student from Marinette, and Secretary/Treasurer, filled by junior Edward H. Clemens from Green Bay. Notable among the remaining staff members was future Marquette law professor Francis A. Darnieder. By the time issue number 2 hit the streets several months later, the journal had added a circulation manager and three new staff members (although it had also lost two members).

The original faculty adviser was Professor Clifton Williams, who taught Code Pleading, Code Practice I and II, and Conveyancing, and also worked as the Milwaukee City Attorney. (In 1916, all Marquette faculty members were still part-time teachers.) Not coincidentally, he was also the law partner of Dean Max Schoetz, who had brought his friend on to the faculty. (Eleven years later Williams would succeed Schoetz as the dean of the law school following his Schoetz’ tragic death in an automobile accident on the way to the 1927 Marquette Commencement.)

What Was Published in Volume 1, Number 1?

Volume 1 began with a foreword written by Milwaukee lawyer William A. Hayes, then vice-president of both the American Bar Association and the Wisconsin State Bar Association. Hayes praised the student staff for undertaking “a most commendable work” that would help the law school “expand and fulfill its mission.” He also noted that the Marquette students involved in the production of the law review “have shown a spirit of which older and more pretentious colleges—presumably a reference to the University of Wisconsin—might well be proud.” He also called upon every member of the Wisconsin bar to the support the venture.

The editors themselves then proclaimed that their primary intention was “to furnish an attractive bond between the Marquette Law students and the Alumni and secondarily, to acquaint each and every lawyer in the state with the fact that the Cream City is the locus in quo of the most progressive law school in the middle west. Furthermore, we purpose to devote the REVIEW exclusively to a resume of Wisconsin law and to a discussion and exposition of matters which we may deem of special, practical value to the Wisconsin bar.”

The introduction also promised the future appearance of a humor column written by Dr. I. M. Clear. This did appear in Issue #2, but “fortunately” this feature had been discontinued by the time Volume 2 appeared.

The substantive content of Volume 1, Issue 1, established a pattern that the Review would follow for many years. It sought out articles from leading legal figures in Wisconsin, but it also served as a mouthpiece for the Marquette Law School faculty and its students.

The inaugural law review article was written by Chief Justice John B. Winslow of the Wisconsin Supreme Court and was entitled, “The Property Rights of Married Women under Modern Laws.” Footnote number one in the history of the Marquette Law Review appeared on page 11 and concisely cited to Montague Lush in “A Century of Law Reform” (1901), p. 342. Of Winslow’s remaining ten footnotes in the first part of his article—the conclusion was carried over to Issue 2—seven were to decisions of the Wisconsin Supreme Court and the remaining three were to Blackstone’s Commentaries. The second half of the article had only four additional footnotes.

Following Winslow’s article was an essay by Marquette professor A. C. Umbreit. Umbreit was an original faculty member at Marquette Law School and had been the dean and sole faculty member of the Milwaukee University Law School that Marquette had acquired in the summer of 1908. In 1919, he would become one of the school’s first full-time faculty members. Umbreit’s subject was “The Common Law of Wisconsin,” which he insisted was a different topic than the “common law in Wisconsin.”

Following Umbreit’s article, the law review introduced one of its more imaginative innovations—a section entitled: Legislative Suggestions. Designed to help implement the image of Marquette as “the most progressive law school in the Midwest” this feature was designed to point out areas of Wisconsin law that were in need of reform.

The first such article was contributed by Marquette professor and future American Bar Association president Carl B. Rix. Rix’s contribution, cleverly entitled, “Needed Property Legislation in Wisconsin,” actually dealt with Rix’s view that the Rule Against Perpetuities in Wisconsin needed to be reformed so that it applied to personal property as well as interests in land. (That the Rule applied only to interests in land was a distinctively Wisconsin position which was eventually reversed by the type of legislation that Rix called for in his contribution.)

The second contribution, written by editor-in-chief James Moran (who would end up practicing law in Tampa, Florida), called for an end to the practice of Wisconsin judges signing statements of findings of fact submitted to them by attorney. That was followed by an entry from W. C. McGeever, the recent graduate on the staff, entitled “Tenancies at Will and Notice to Quit,” and one from senior law student Francis Darnieder, “The Right to Try the Title of a De Facto Officer by Injunction.” The latter topic grew out of an incident a few years earlier when partisan strife in Madison had created a controversy as to who was entitled to hold the office of Wisconsin Insurance Commissioner.

Issue #2

The law review’s second issue followed a similar pattern. Chief Justice Winslow’s article was concluded. Milwaukee City Attorney Garfield S. Canright contributed an article on “Testimony as to Transactions or Communications with Deceased Persons.”

In the Legislative Suggestions section, Milwaukee lawyer John F. Woodmansee argued that Wisconsin should scrap nearly one hundred years of history and replace the existing land registration system with the Torrens System. Prof. Rix contributed another article, this time one arguing for a change in the sections of the corporation law of Wisconsin dealing with “watered” stock.

Student articles in Issue 2 included an extremely prescient article by junior law student, C. Stanley Perry, calling for the abolition of the privity doctrine in products liability law so that injured bystanders could more easily sue the manufacturers of defective products that had injured them. (Perry appears to have left the law school without ever actually graduating, but went on to a successful career as a lawyer in Wisconsin and published another article in the Marquette Law Review 28 years later.)

The second student comment was by Irving Rosenheimer and dealt with the use of physicians as expert witnesses. Both Perry and Rosenheimer joined the Law Review for the issue that included their articles. The second issue ended with Dr. M. I. Clear’s humorous take on the subject of judicial notice.

In March of 1917, half-way through the first volume, the Marquette Law Review revamped its staff, replacing editor-in-chief Moran with former Business Manager Russell Frawley. The goal, as the editor’s statement made clear, was to guarantee continuity from the 1916-1917 academic year to the next. As it turned out, the rude intrusion of World War I did disrupt the law review that year anyway, as business manager John W. Kelly ended up as Lieutenant John W. Kelly in the U.S. Field Artillery in France. For good measure, Prof. Carl Rix also ended up replacing Clayton Williams as Faculty Advisor.

Nevertheless, the pattern that the Marquette Law Review would follow for many years was now set. Although its focus was on the law and politics of Wisconsin, it purpose was to establish beyond doubt that the Marquette Law School was a significant and progressive institution whose students and faculty did not hesitate to involve themselves in the significant legal issues of their time.

Of course, over time articles in the law review got longer and longer and footnotes got more and more numerous. Poor Chief Justice Winslow would today likely be laughed out of Eckstein Hall if he submitted an article with only 15 footnotes. While the focus of its content became more and more national in scope, the journal has never forgotten its commitment to the analysis and reform of the legal system of Wisconsin.

Today’s version of the law review has more than fulfilled the dreams and ambitions of those who created the journal 95 years ago.

 

Continue ReadingThe Founding of the Marquette Law Review Was a Significant Event in the Law School’s History