Marquette’s First Basketball All-American Was a Marquette Law Student

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Boops MullenMarquette’s men’s basketball program has produced a long line of All-American basketball players. The ranks of this elite group include such notable hoopsters as George Thompson, Maurice Lucas, Dwayne Wade, Jim Chones, Dean Meminger, Earl Tatum, and Butch Lee.

However, the first Marquette basketball All-American was 6’2” guard Edward “Boops” Mullen who played for the Hilltoppers (as the team was then known) from 1931 to 1934. Mullen was named as a first team selection to the Converse All-American team following the conclusion of his final varsity season, during which he had been enrolled as a first year Marquette law student.

Mullen was also the first (and to date only) Marquette law student to have played in the NBA or one of its predecessor leagues after receiving his law degree.

Mullen, born in 1913 in Fon du Lac, Wisconsin, enrolled in Marquette as a college freshman in the fall of 1930. The 6’2” Mullen starred on the freshman team and joined the varsity as a starter during the 1931-32 academic year.

Mullen played guard in an era where the players who filed that position were in the lineup primarily to “guard” their team’s basket and to prevent the other team’s top offensive players from scoring.

At Marquette, “Boops” became renowned as a defensive specialist in an era of college basketball in which scores were much lower than they are today. During Mullen’s first year on the varsity, the average combined score in Marquette games was only 57 points, and in only one of the team’s 19 games did either Marquette or its opponent exceed 50 points (and then only scored 51).

Mullen was certainly no offensive standout. For his Marquette varsity career he averaged only 3 points per game, but it was on the defensive side of the game that he excelled. He always guarded the opposing team’s top scorer, and he usually held that player to well below his average number of points.

During Mullen’s first varsity season (1931-32), the Marquette Hilltoppers compiled a record of 11-8, under the leadership of captain and Marquette law student (and future National Basketball League head coach) Frank Zummach. The next year, the team added sophomore scoring sensation, Ray Morstadt, the first Marquette player to average in double figures in scoring for an entire season, and its record improved to 14 wins and 3 losses.

In the fall of 1933, following his junior year of college, Mullen enrolled in the law school as a law freshman. At that time, prospective law students at Marquette were required to have attended college for just two years, and it was not at all uncommon for students in the college who were interested in careers in law to switch to the law school after their sophomore years.

In fact, Mullen was somewhat unusual in waiting until after his junior year of college to start law school. His undergraduate classmate and fellow native of the Fox Valley, future United States Senator Joe McCarthy, followed the more common path of enrolling in the law school after his second year at Marquette.

Mullen’s decision may have the better one, as the law school shortly thereafter (in 1934) raised the entry prerequisite to three years of college.

Enrolling in law school in no way adversely affected Mullen’s play during his final year as a college basketball player. Named captain of the team by head coach Bill Chandler, Mullen and Morstadt led Marquette to its highest win total in more than a decade as the 1933-34 team won 15 games while losing only four. Included in the wins were victories over Big 10 teams Wisconsin, Michigan State, and Ohio State and a season ending 21-20 nail biter against Notre Dame.

At the end of the season, Mullen was named to the Converse Yearbook’s First Team All-American team because of his stellar defensive play, while his teammate Ray Morstadt was named to the Literary Digest’s All American Third Team.

During his second and third year of law school, Mullen was no long eligible to play varsity basketball—in that era, players were limited to one year on the freshman team and three years on the varsity, no matter what their status at their universities. So instead of playing, Mullen coached the Marquette freshman basketball team and assisted Chandler and new assistant coach Frank Zummach with the varsity.

During his second year as a coach and his third year of law school (1935-36), Mullen also began his professional basketball career by signing a contract with the Oshkosh All-Stars.

The All-Stars had been founded in 1929 by an Oshkosh seed distributor and salesman named Lon Darlling. Until 1935, the team had played as an independent professional team (in an era when such teams were common, especially in the Midwest), but that year the All-Stars joined the Midwest Basketball Conference, a league that stretched from Minnesota to Pennsylvania and which was recognized as one of the top professional leagues in the United States.

Presumably, the decision to sign Mullen was part of an effort to upgrade the caliber of the team in the face of more challenging competition.

Mullen became the All-Stars captain and a fixture in the team’s starting line-up. Conference games were irregularly scheduled and accounted for only a small percentage of the games that the team actually played. Playing games throughout Wisconsin and the Midwest and often scheduling games with non-Wisconsin teams in different cities in the Fox Valley and central Wisconsin, the All-Stars compiled a combined record of 54 wins and only 12 losses during the 1935-36 and 1936-37 seasons.

After graduating from the law school in June of 1936 (and securing admission to the Wisconsin bar under the diploma privilege which had been extended to Marquette graduates in 1934), Mullen moved to Oshkosh to play basketball and practice law. He soon entered in a law partnership with Charles A. Bernard, a former member of the Wisconsin legislature and a 1930 graduate of the Marquette Law School. He did not, however, plan to abandon his basketball career.

In 1937, the Midwest Conference changed its name to the National Basketball League as part an effort to upgrade its quality of play and to establish itself as the premier professional basketball league in the United States. In this it largely succeeded, and in 1949, it would merge with the more recently established Basketball Association of America to form the modern National Basketball Association.

In its initial form, the11-team NBL was still centered in the Midwest with teams located in large and medium sized cities (Pittsburgh, Indianapolis, Columbus, and Dayton) as well as in smaller communities like Oshkosh where basketball was extremely popular. (However, some of the small town teams were located on the periphery of major metropolitan areas, like Whiting, Indiana (Chicago) and Warren, Ohio (Cleveland).)

Many of the league’s franchises had begun as industry-sponsored teams, and several retained their original industrial sponsors, like the Ft. Wayne General Electrics and the two Akron teams, the Goodyear Wingfoots and the Firestone Non-Skids. Although the All-Stars were privately owned, the team was, like the Green Bay Packers of the National Football League, a community operation.

The All-Stars proved to be one of the rechristened league’s better teams. In 1937-38, Oshkosh recorded a league record of 12 wins and 2 losses, and an overall record of 62-12. (Higher salaries apparently dictated a significant larger number of games.) The team won the NBL’s Western Division title by a half game over the Whiting (Ind.) Ciesar All-Americans, and in the post-season playoffs, the All-Stars eliminated Whiting, two games to none, before losing the league title to the Akron Goodyear Wingfoots, two games to one.

Balancing a new law practice with such a heavy playing schedule was obviously a challenge for Mullen, but it appears that he did play in a significant number of the team’s games. He remained the team captain, and he managed to play in 9 of the team’s 14 regular season NBL games and in all 5 of its playoff tilts. As at Marquette, Mullen continued to specialize in playing shutdown defense, and his offensive contributions were minimal. In the 14 NBL regular season and playoff games in which he participated, he scored a total of only 24 points.

In the fall of 1938, Mullen married his Marquette girlfriend, Evangeline Gahn, Arts ’34, in Milwaukee, but the two began house-keeping in Oshkosh. The headline over the story in the Oshkosh newspaper announcing the couple’s engagement referred to Mullen as a “local lawyer” rather than as a professional basketball player (although the latter role was mentioned in the text of the story.)

During the 1938-39 season, the All-Stars again won the league’s Western Division championship, this time with a record of 17-11. Unfortunately, they also again lost the league championship to an Eastern Division team from Akron, this time the Firestone Non-Skids. In that year’s one-round of play-offs the All-Stars again fell just short, losing to the Non-Skids by a margin of three games to two.

In spite of a honeymoon that required him to miss some of the team’s early season non-league games, Mullen managed to play in 25 of the 28 regular season games, and actually boosted his scoring average in those games to 2.3 points per contest. In the play-offs, he again played in all five games, but managed only three free throws and no baskets in the entire series.

By the fall of 1939, the demands of his law practice and marriage were making it harder for Mullen to continue his basketball career. Moreover, as scores in professional basketball games began to rise, it may also have been the case that a 6’2” pure defensive specialist was not viewed as quite as valuable as before. In any event, Mullen began the 1939-40 season with the All-Stars but retired after playing in only seven league games.

Without Mullen, the All-Stars finished the season tied for first place in the Western Division with the Sheboygen Redskins, coached by Mullen’s former Marquette basketball teammate, fellow assistant coach, and fellow Marquette law student, Frank Zummach. In the first round of the play-offs Oshkosh defeated Sheboygan two games to one, but then lost in the finals for the second year in a row to Akron’s Firestone Non-Skids, again by three games to two, but this time after blowing a two games to none lead.

Mullen apparently planned to stay in Oshkosh to practice law, but with the outbreak of World War II, he entered the United States Navy, where he held the rank of Lt. j.g. After the war, instead of returning to Oshkosh, he relocated to Milwaukee where he practiced law and coached the Milwaukee Bright Spots, the city’s leading independent professional team.

When the National Basketball Association was created by merger of the NBL and the Basketball Association of America in 1949, there was much speculation that Mullen would return to the All-Stars as an assistant coach, but that issue was muted when the other NBA teams voted to drop Oshkosh from the list of teams in the new league.

Mullen also became increasingly involved in Marquette athletics after his return to Milwaukee. He became an active member of the M Club, an organization of former Marquette athletes created by the university to “provide support for Marquette athletics and to encourage camaraderie among its alumni letter winners.”

In 1950, Marquette president, Edward J. O’Donnell, S.J., appointed Mullen as the M Club representative on the Marquette Athletic Board, and from 1958 to 1960, Mullen served two one-year terms as the M Club’s president.

At some point, Mullen’s first marriage ended in divorce, and he later remarried. His second wife was Goldye Brossell, a native of Milwaukee and a graduate of the city’s now defunct Downer College. Mullen and his second wife moved to Washington, D.C., in 1964, apparently as a result of his taking a job with the Veterans Administration. While in D.C., the new Mrs. Mullen worked as a staff assistant in the social office of First Lady Lady Bird Johnson.

In 1968, the Mullens relocated to San Francisco where he continued to work for the Veterans Administration, and she became the food editor for the San Francisco Progress, a weekly newspaper. In 1979, she published a cookbook, The International Dessert Cookbook, which was widely reviewed.

In 1974, while living in San Francisco, Mullen was elected to Marquette Athletic Hall of Fame, and that same year, he was also selected by a unanimous vote as a member of Marquette’s all-time basketball team.

Mullen died on January 10, 1988, in San Francisco, where he is buried. Both of his wives lived into their mid-90. Evangeline Grah Mullen passed away in 2008, and Goldye Brossell Mullen died in 2009.


The Link Between the Kennedy Assassination and the Onset of Beatlemania

Posted on Categories Legal History, Public4 Comments on The Link Between the Kennedy Assassination and the Onset of Beatlemania

This past November, there were seemingly endless efforts to commemorate the 50th anniversary of the assassination of President John Kennedy.  Now (Feb. 9) we are in the midst of a similar celebration and reexamination of the 50th anniversary of arrival of the rock and roll band the Beatles in the United States and their initial appearance on the Ed Sullivan Show.

Both of these efforts reflect the boundless enthusiasm of the Baby Boom generation for the celebration of the cultural landmarks of its childhood and adolescence.

These two events, occurring about 2 ½ months apart, are more closely linked than most people appreciate.  Had it none been for the tragic events of November 22, 1963, Beatlemania would probably have arrived in the United States even earlier than it did.

Looking back on the story of the Beatles, it is remarkable how slow the United States was to catch on to the significance and the appeal of the Fab Four.  Although 1963 was a breakout year for the band in England and Europe—selling over one million records that year and dominating the British pop music charts and well as attracting hysterical fans from throughout northern Europe—as late as November 1963, very few Americans had ever heard of the Beatles, and even fewer had heard their music.

Remarkably, the individuals who ran Capital Records, the American arm of the record company EMI which produced the Beatles’ records in the UK, were convinced that despite their popularity in the UK and Europe the Beatles were not suitable for the American market (as the Capital brass put it).  As a result, Capital refused to produce any Beatles records at all in the United States before finally agreeing to produce a token number (5,000) of copies of the band’s song, “I Want to Hold Your Hand” in late December or early January.

Through the efforts of EMI, three of the group’s songs were released in the United States in 1963, but all appeared on minor labels, either the Chicago-based Vee-Jay (“Please, Please Me” and “From Me to You”) or Philadelphia’s Swan Records (“She Loves You”).  Although all three of these songs had been hit records in the UK and would become well known songs in the United States, none sold well in 1963, and none received more than a token amount of airplay on American radio.

However, for any American who was in Britain in 1963, it was apparent that the Beatles were no ordinary musical group, given their extraordinary popularity, especially with teenage girls.  American television impresario Ed Sullivan, whose “Ed Sullivan Show” on CBS-TV was a major American entertainment venue , happened to be in London in November when the Beatles were mobbed by throngs of young girls at Heathrow Airport following their return from a successful tour of Sweden.  Sullivan was stunned by the enthusiasm of the fans and later that month decided to book the unknown (in the U.S.) group on to his variety show in early February as a “novelty act.”

Of course, Ed Sullivan was not the only American who was aware of the Beatlemania phenomenon in the United Kingdom.  In its November 15, 1963 issue, Time Magazine profiled the new band and its legion of fans in a story entitled “The New Madness.”  Three days later, the nation’s highest rated network news program, NBC’s Huntley-Brinkley Report, closed out its half hour nightly news show with a four-minute story on the band and its fans.  The story was reported from the UK by veteran newsman, Edwin Newman, and while Newman’s report included brief snippets of the Beatles performing, its primary focus was on the seemingly hysterical reactions of their fans.  (The audio from Newman’s report, introduced by Chet Huntley, can be heard here.

At this point, most American news outlets realized that the Beatles and their fans were no ordinary story, even if it was still almost impossible to hear the band’s music in the United States.  Newsweek, Life Magazine, and the New York Times Sunday Magazine all rushed stories into print, and Jack Paar, host of NBC’s Tonight Show,  acquired the rights to a clip of the Beatles performing, which he planned to “show as a joke.”

CBS News, playing catch-up, prepared an extended story on the Beatles phenomenon by having London-based correspondent Alan Kendrick report on his first-hand analysis of the British fascination with this new musical combo.

Like NBC’s Newman, Kendrick was generally disparaging in regard to the band’s musical abilities and focused instead on the inexplicable zeal and compulsive screaming of the group’s teenage female fans.   (Today, Kendrick’s report seems more like a documentary on what it meant to be middle-aged and clueless in 1964.  It can be viewed here.

On Thursday, November 22, CBS used its morning shows to hype Kendrick’s report which was scheduled to air later that day on the Evening News with Walter Cronkite.  However, the tragic events in Dallas that afternoon led the network to drop plans for the Beatles story altogether.

In fact, just as the onslaught of publicity about the Beatles and Beatlemania was raising the curiosity of Americans, the president’s untimely death abruptly brought stories about the young band from Britain with the funny haircuts to a halt.  Presumably, had it not been for the assassination, the explosion in news coverage pertaining to the Beatles would have produced enough curiosity to encourage Capital Records to reverse course and start issuing Beatle records in the United States.

Thanks to the assassination, Capital Records had no reason to reconsider its policy toward the Beatles.  However, 18 days later, something remarkable happened.  On December 10, 1963, with no particular fanfare, CBS finally ran its Beatles story on the evening news.

One of the viewers who watched the news that night was 15 year old baby-boomer Marsha Albert (b. 1949), a high school student from Chevy Chase, Maryland.  Albert ignored the critical, dismissive tone of Kendrick’s report, but was enraptured by the musical clips it contained.

The next day, she called her favorite disc jockey,  Carroll James of WWDC-AM radio in the District of Columbia, and demanded that James start playing Beatle songs on his show.  Impressed by her passion, and aware of the popularity of the Beatles in Britain, James convinced a friend who was a British Airways flight attendant to purchase him a copy of the new Beatle record, “I Want to Hold Your Hand,” when she was next in the UK.  James acquired the record, and to help call attention to the song, announced that Beatle fan Marsha Albert would join him in the studio to introduce the record to his audience.

The rest, as they say, is history.

James first played the song on December 17, and then began playing it over and over once the switchboard lit up with calls demanding to hear the song again.  A week later, radio stations all over the United States were playing Beatle songs, if they could find them.  Capital Records pushed the release date of the American version of “I Want to Hold Your Hand” (with “I Saw Her Standing There” on the flip side) to the day after Christmas, and by December 29, over a quarter million copies of the two-sided record had been sold.

By mid-January, “I Want to Hold Your Hand” appeared on the Billboard Hot 100 chart that listed the supposedly most popular songs in the United States.  By the time that the band arrived in the United States on February 7, that song was at the top of the charts, followed closely by three other Beatle songs, “She Loves You,” “Please, Please Me,” and “I Saw Her Standing There.”

On the evening of February 9, Ed Sullivan looked like a genius by having snagged the world’s most popular band for his show for that night and the next two Sundays.  On New Year’s Day, most Americans had still not heard of the Beatles.  Forty days later, their presence on Sullivan’s show attracted an audience estimated to be in excess of 74 million people, the largest audience in television history.

The Beatles’ 1964 turned out to be the greatest year ever for a singer or musical group in the history of American music.  Nineteen Beatle songs made it into the Billboard top 100 singles list between January 1 and December 31.  All 19 reached #35 or higher, 13 made it into the top 12 and 11 in the top 10, while 6 songs (“I Want to Hold Your Hand,”  “She Loves You,” “Can’t Buy Me Love,” “Love Me Do,” “A Hard Day’s Night,” and “I Feel  Fine”) made it to #1.

Between February 1 and May 9, a Beatle song was ranked #1 on the chart every week.  On May 16, the top spot went to Louis Armstrong’s “Hello Dolly,” but the Beatles were back on top again by the end of May.  Although they were not as dominant in the second half of the year as they were in the first, the year ended with a Beatle song (“I Feel Fine”) at the top of the charts.

The number of the Beatles #1 hits would have been greater but for the fact that so many songs were released simultaneously with each other.  “Twist and Shout,” one of the band’s most successful songs and the rare Beatle song not written by the members of the band, peaked at #2 because it was released at the time when “I Want to Hold Your Hand” and “She Loves You” were still at the top of the chart.  “Please, Please Me” met a similar fate, peaking at #3.  In March of 1964, those four songs simultaneously occupied slots #1 to #4 on the Billboard Chart.

As someone who turned age 12 during the middle of 1964, I remember that listening to music on the radio seemed largely about listening to the Beatles hits with which we were already familiar being played over and over while waiting for the next new Beatle song to air.

On the album charts (in an era still dominated by the two-song “45’s”), the Beatles Capital Records album, “Meet the Beatles,” debuted on the charts on February 1; reached #3 a week later; and then jumped to #1 the following week, where it remained for 11 weeks.  Two weeks later, it was accompanied at #2 by the Vee-Jay album, “Introducing the Beatles.”  On May 2, both of these albums were surpassed by the group’s second Capital album, entitled “The Beatle’s Second Album” which remained at the top of the charts for five weeks.  For June and most of July albums by other performers topped the chart, but on July 31, the new Beatles album, “A Hard Day’s Night” returned to the #1 position and remained there for 14 weeks.

The Kennedy assassination clearly delayed the onset of Beatlemania in the United States, but neither that sad event, nor anything else, could have prevented John, Paul, George and Ringo from permanently transforming the popular music scene in the United States.

Marquette Law Professor and CAS Arbitrator Matt Mitten Helps Resolve First Legal Dispute at the Sochi Winter Olympics

Posted on Categories Arbitration, Marquette Law School, Public, Sports & Law2 Comments on Marquette Law Professor and CAS Arbitrator Matt Mitten Helps Resolve First Legal Dispute at the Sochi Winter Olympics


Professor Matt Mitten was one of three members of a Court of Arbitration for Sport panel that was called upon to resolve the first legal dispute to arise at the 2014 Winter Olympics. Along with fellow arbitrators Patrick Lafranchi of Switzerland and Robert Decary of Canada, Professor Mitten denied the claim of Austrian skier Daniela Bauer that she had been improperly excluded from the Austrian Olympic team.

The decision was handed down in Sochi. Bauer filed her claim on February 2, and the matter was heard by the Ad Hoc panel on the evening of February 3, with a final decision handed down at 1 p.m. (local time) on February 4.

A full account of the proceedings can be found here.

Iowa Supreme Court Contemplating Diploma Privilege

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Iowa Judicial Branch BuildingThe Iowa Supreme Court has recently announced that it is entertaining a proposal that would exempt graduates of the University of Iowa and Drake University law schools from the Hawkeye state’s bar examination.  If the rule is adopted, Iowa would join Wisconsin as the only state that grants the diploma privilege to graduates of American Bar Association accredited law schools within its boundaries.

The diploma privilege refers to the practice of admitting the graduates of certain law schools to a state bar without requiring them to take a bar examination.  Although the number of states recognizing some version of the diploma privilege at some point in their history is approximately 30, the use of this mechanism was denounced by the American Bar Association in the 1910s and 1920s and fell into disfavor in the second half of the 20th century.

However, as late as 1980, there were still five states that recognized the diploma privilege: Mississippi, Montana, South Dakota, Wisconsin, and West Virginia.

Except for Wisconsin, each of the states that retained the privilege were small, predominately rural states with a single ABA-accredited law school that was also operated by the state.  (Mississippi had a second, private, law school but at that time, the Mississippi College of Law was not ABA-accredited and thus did not qualify for the Mississippi diploma privilege.) Of the five states, only Wisconsin had two ABA-accredited law schools.

For a variety of reasons, the other four states abolished the diploma privilege during the 1980s.  After the elimination of the West Virginia diploma privilege in 1988, Wisconsin remained as the only state to offer this route to bar admission for all graduates of the state’s ABA-accredited law schools.

However, in 2005, the Supreme Court of New Hampshire recognized a “partial” diploma privilege for graduates of a new Daniel Webster Scholars program at the Franklin Pierce Law Center, the state’s only ABA-accredited law school.  Under the new program, 20 second-year Franklin Pierce law students were selected for an intensive two-year program that focused upon skills training and the law of New Hampshire and which substituted for the second and third years of law school.

Upon completion of the two-year Daniel Webster program, these students were admitted to the New Hampshire bar without further examination, so long as they met character and fitness requirements and passed the Multi-state Professional Responsibility Examination (MPRE).

In 2010, the Franklin Pierce Law Center became the University of New Hampshire Law School, and more recently the number of entering students was increased to 24.  However, even with the slight increase in numbers, only a minority of the law school’s students can avail themselves of this option.

In 2013-2014, UNH admitted a first-year law class of 77.  Barring a further increase in size of the Daniel Webster Scholars program, less than a third of these will have the option of pursuing the “partial” diploma privilege route.

Under the Iowa proposal mentioned above, Drake and University of Iowa graduates would still have to take a class on “Iowa law and procedure” while in law school, pass the Multi-state Professional Responsibility Examination, and satisfy a character and fitness evaluation, but they would otherwise be exempted from the Iowa bar examination.  As a result, if the proposal is accepted by the Supreme Court, graduates of the two law schools could, as is the case in Wisconsin, begin the practice of law immediately after graduation (at least if they had already taken and passed the MPRE examination, which can be taken while a law student).

The Iowa State Bar Association has already endorsed the diploma privilege proposal, and the state Supreme Court is expected to rule some time during the summer of 2014.  There seems to be little doubt that this move is prompted by concerns regarding the economic plight of recent law school graduates from the state’s two law schools.  The diploma privilege would free them from having to pay the costs of a bar review course and would allow them to begin work as lawyers several months earlier than is currently the case.

In recent years, Iowa has had one of the highest bar examination pass rates in the United States.  In 2012, for example, its overall passage rate of 88% was the third highest in the United States, trailing only Missouri (89%) and Montana (91%).  Its July examination passage rate — which is when most law school graduates take the examination — of 90% was exceeded only by Missouri’s 91%.  Moreover, according to the state bar association, over the past five years 62% of those who did fail the Iowa examination passed it on their second try.

It will be interesting to see if the Iowa Supreme Court accepts this recommendation.  If it does, it will then be interesting to see if other states — especially those with high passage rates — also move to embrace (or re-embrace) the diploma privilege.

Redskins and Hog Rinds–Trademark Denied

Posted on Categories Intellectual Property Law, Public, Race & Law, Sports & Law3 Comments on Redskins and Hog Rinds–Trademark Denied

Pork RindsThe United States Patent and Trademark has recently refused to register the trademark “Redskins Hog Rinds” for a California food company on the grounds that the mark is “disparaging” and therefore prohibited by Section 2(a) of the Lanham Act, the federal trademark statute.

The ruling, handed down on December 29 by an attorney-examiner, can be appealed. The decision concluded that there was no reason to deny registration of the mark except for the fact that it was disparaging to Native Americans. The examiner reached this conclusion on the basis of dictionary definitions that identified the term as disparaging and by the opposition to the continuing usage of the term “Redskins” by a number of Native American groups, including the National Congress of American Indians and the Oneida Nation, as well as articles about Indian activist opposition to the term that appeared in the Washington Post and the magazine, Indian Country Today.

This is not the first time that the term “Redskins” has been ruled disparaging. In recent years the Washington Redskins football team has unsuccessfully attempted to register variations on its famous mark.

Presumably, if the applicant in this case had attempted to register the mark “Indian Pork Rinds,” it might have succeeded (if no one else had previously registered that mark).

Why is the term “redskins” deemed to be so much more offensive than other names for Native Americans? How did it become the R-word?

There is little doubt that many people today believe that the word “redskin” is a racial slur that has no place in public speech. However, while the historical treatment of Native Americans in culture was admittedly degrading in most respects, there is little evidence that the word “redskins” was perceived as an inherently offensive term for Native American before the late 1970’s or early 1980’s.

Traditionally, the word “redskin” was viewed as a synonym for Indian, and its usage did not carry the negative connotations that have long attached to ethnic and racial slurs like “chink,” “wetback,” “kike,” or “nigger.” Until the 1970’s, sportswriters covering teams with any type of Indian nickname used the terms “Indians,” “Braves,” and “Redskins” interchangeably without any apparent awareness that the third was more offensive than the first two.

As the Smithsonian’s Ives Goddard has demonstrated, prior to the twentieth century, Native Americans frequently used the adjective “red” in reference to themselves. In fact, the term “redskin” appears to have originated as a translation of a Native American term used to differentiate Indians from other Americans.

English language dictionaries in use as recently as the 1950’s and 1960’s reflect no acknowledgement that the term “redskin” was understood as disparaging to Native Americans. For example, the 1952 edition of the Universal Dictionary of the English Language, described “redskin” as a “Native American Indian, a Red Man” (p. 981), but makes no reference to the word being offensive. The American College Dictionary (1956 ed., p. 1016); The Grosset Webster Dictionary (1957 ed., p. 1016); and Webster’s New International Dictionary, Unabridged 2nd Edition (1957 ed., p. 2088) all define “redskin” as a “North American Indian,” again, with no indication that the term was considered offensive.

In The American Heritage Dictionary of the American Language (1969 ed., p. 1092), produced more than a decade later, the same definition is given, but with the qualification only that the term was “informal.”

In fact, the Merriam-Webster Company, the country’s leading publisher of “serious” dictionaries, did not indicate that the term was objectionable until 1983, when it added the cautionary phrase “usually taken to be offensive” to its previous definition, “A North American Indian.” (This definition appeared in the 1983 editions of Webster’s Third International Dictionary and Collegiate Dictionary, 9th Edition.)

In contrast, the same dictionaries from the 1950’s and 1960’s clearly indicate that the word “nigger” is understood to be offensive and derogatory. The comments so indicating range from “colloquial, contemptuous” (Universal Dictionary, p. 774) and “offensive” (American College Dictionary p. 820) to “substandard, now chiefly contemptuously” (Webster’s New International, p. 1651) and “vulgar” (American Heritage Dictionary p. 887). The Grosset-Webster Dictionary omitted the word altogether, presumably because it was in such bad taste.

Today, of course, the understanding is quite different. Contemporary dictionaries clearly identify the term “redskin” as disparaging. The Online Oxford Dictionary describes it as “dated and offensive.” Similarly, Merriam-Webster’s online dictionary identifies it as “usually offensive,” while the online Thefreedictionary defines it as “used as a disparaging term for a Native American,” and further classifies the term as “offensive slang.” Moreover, the word has almost completely disappeared from everyday usage, except in reference to sports teams with the “Redskins” nickname.

So, how did the word “redskin” become so offensive so relatively recently? First of all, there is nothing remarkable about a word’s meaning changing over time, especially when it has racial or ethnic connotations. In the 1950’s, it was widely believed that African-Americans preferred to be called “colored” and “Negro,” and at the same time considered the label “black” insulting. By the end of the 1960’s, the situation had definitely been reversed, with only those who were insensitive to racial issues continuing to use the traditional terms.

Moreover, beginning in the late 1960’s, the American Indian civil rights movement campaigned to convince other Americans that most of the images of Native Americans in American popular culture were wildly inaccurate and insulting. No image was more stereotypical than the image of the Plains Indian “on the warpath,” which was a staple of film and television westerns.

Because “redskins” was often the western movie’s term of choice for Native Americans and because westerns usually depicted Native Americans an “uncivilized savages” (even if heroic), the term redskin took on a secondary meaning as “savage Indians.” At least for those Americans who came to regret the traditional depictions of Native Americans, “redskin” became an unpleasant term and a reminder of the dominant culture’s insensitivity to the feelings of its aboriginal counterparts.

A second explanation comes from the fact that the word “redskin” obviously uses a color to describe a racial group. While “black” and “white” became acceptable terms in the 1960’s (and are still widely used), during the same era the practice of referring to Asians as “yellow” fell into disfavor and came to be viewed as an expression of anti-Asian racism. Social pressure to avoid “yellow” references in regard to Asians may have had an impact on public attitudes toward defining Native Americans as “red.”

In addition, there has always been something slightly disparaging about the “skins” component of the word “redskins.” “Skins” can connote images of animal pelts cut away from the body by fur hunters. While there is absolutely no basis to the frequently (and irresponsibly) repeated claim that the term “Redskins” once referred to the hides of Native Americans which could be exchanged for a bounty, there is something a little unpleasant about the similarity between “coonskin” and “deerskin” on the one hand, and “redskin” on the other.

Although the California applicant in the Redskins Pork Rinds case seems to believe that the term has market value, it seems unlikely that any newly created sports team in the 21st century will take the name “Redskins.” Pork rinds and other rural consumption items notwithstanding, the primary issue is whether or not sports teams with the name “Redskins” whose use dates back to a time when the term was not perceived as offensive should be allowed to continue.

One could argue, however, that the real issue with the Redskins is not whether or not the name is especially offensive. When George Preston Marshall named his football team the Braves in 1933 and then changed it to Redskins the following year because of a switch in stadiums, he had in mind a plan to exploit the linkage between the team and Native Americans.

However, his plan had nothing to do with intentionally insulting Native-Americans by choosing a degrading name; the plan was to exploit the Native American as a symbol of patriotism and ferocity in battle. For similar reasons, many non-Indian U.S. military units in World Wars I and II adorned their helmets with Native American symbols.

It seems to me that the focus on “disparagement” missing the real issue with Native American team names, since it is hard to argue that “Indians,” “Tribe,” “Braves,” or “Chiefs” are inherently disparaging names. The real question, at least as I see it, is whether the appropriation of Native American symbols, even with good intentions, is an inappropriate usage of someone else’s cultural property.

The NCAA has framed the issue in this way by recognizing a de facto property interest in tribal names that can be “licensed” to sports teams (like the Florida State Seminoles), if the tribe wishes to do so. Since no one can “own” generic terms like Redmen, Indians, Chiefs, and Braves, those names are off-limits to colleges.

Special thanks to Marquette University Law School alum Daniel Friedman for calling the Pork Rinds ruling to my attention.

Wisconsin Adopts the Uniform Trust Act

Posted on Categories Public, Wisconsin Law & Legal System1 Comment on Wisconsin Adopts the Uniform Trust Act

On December 14, following the signature of Governor Scott Walker, Wisconsin trust law took on a dramatically new look when 2013 Wisconsin Act 92 took effect.  This act adopted the Uniform Trust Code, with minor modifications, as the law of the Badger state.

Introduced into the legislature on November 4, after almost a decade of study, the proposed revision of the state’s trusts laws sailed through both the Senate and the Assembly with very little opposition.

The Uniform Trust Code (UTC) was promulgated by the National Conference of Commissioners on Uniform State Laws in 2000 with the intention of being a vehicle that would both update and standardize the law of trusts in the United States.  It was subsequently modified in relatively minor ways in 2001, 2003, 2004, and 2005.

The model code was enthusiastically received by many in the legal community, and it was quickly endorsed by the American Bar Association, the ABA Section on Property, Probate and Trust Law, and the American Association of Retired Persons (AARP).  Wisconsin’s adoption now raises to 27 the number of jurisdictions that have enacted the model statute since 2000 (26 states and the District of Columbia).

Many states have made their own modifications to the model act, and while this is true for Wisconsin, the Wisconsin changes appear to be relatively minor, especially compared to a state like Virginia which made significant modifications.

In regard to Wisconsin’s neighbors, the UTC has been adopted in Michigan, but not in Minnesota, Iowa, or Illinois.

Although the sudden adoption of the UTC by the Wisconsin legislature in December caught many observers, including this writer, by surprise, there has long been wide-spread agreement that the Wisconsin law of trusts, which was last significantly modified in 1971, was particularly thin and somewhat out of date.

The primary effect of the new statute will be to modify the “default rules” that apply when trust instruments fail to provide a complete answer to the question of what rules govern the trust.  In that regard, the new code makes it easier to modify or terminate trusts and to replace trustees.  It also creates greater flexibility in regard to issues of trust management, including the transfer of assets from one trust to another.

The new act also devotes an entire article to revocable trusts, the use of which has skyrocketed in recent years.  It does not appear to affect the application of Wisconsin’s unique Rule against Perpetuities.

It will, of course, likely be several years before the full range of effects of the new code will be appreciated.

The Use of Native American Logos in Czech Ice Hockey

Posted on Categories Public, Race & Law, Sports & Law3 Comments on The Use of Native American Logos in Czech Ice Hockey

HC PlzenI was generally aware of the Czech fascination with American Indians, but I was caught by surprise when I encountered a trio of Native American musicians and dancers performing in resplendent tribal costumes on a street corner in downtown Prague during my first day in the city this past December. (See below.)

I was even more surprised to discover that the players of HC Skoda Pilsen (Plzen, in Czech), the reigning champion of the Czech Extraliga (the country’s highest Hockey League), wear an Indian head patch on their uniforms and are nicknamed the Pilsen Indians.

In addition to the logo, the Pilsen club also has a live mascot (presumably a Czech) who dresses liked a Plains Indian. Moreover, at the beginning of each season, an individual in the garb of an Indian shaman comes on to the ice in the club’s home arena and performs a good luck ritual on behalf of the team. The mascot and shaman can be seen here.

HC Skoda Pilsen is currently owned by former National Hockey League star (and Czech native) Martin Straka, who at age 40 also doubles as the team’s captain and star player. In Game 7 of last year’s Czech counterpart to the Stanley Cup playoffs, Pilsen defeated HC Kiln on a series-winning goal by Straka, allowing the club to claim its first ever Extraliga championship.

The team’s official video illustrates the seriousness with which the club takes its association with Native American imagery and the inspiration that it derives from what the team refers to as the” heroism” of the “Last Mohican” (a reference to the famous James Fennimore Cooper novel).

The Czech fascination with Native Americans dates back to the late 19th century when the Czech Republic was part of the Austro-Hungarian Empire. Much of this fascination can be traced to the novels of German adventure writer Carl May (1842-1912).

Several of May’s novels were set in the American West, and these works were extremely popular throughout the entire German-speaking world. Inspired by James Fennimore Cooper and American painter George Catlin, May’s novels treat Native Americans much more sympathetically than the typical Hollywood or television western of the first half of the twentieth century.

May’s Indians were typically portrayed as noble savages who valiantly resisted the greed and rapaciousness of English-speaking settlers. The white protagonists in his novels were usually Americans of German descent who typically felt a kind of spiritual kinship to the Native Americans, a la Cooper’s Natty Bumpoo.

May was widely imitated by other German and Czech writers, and many of his novels were later made into films, which also incorporated the positive depiction of Native Americans. This tradition continued after the beginning of the Communist era, with the East German film industry in particular turning out dozen of “Osterns” (literally, “easterns”) which were set in the American west of the 19th century and depict Native Americans as the innocent victims of white racist capitalism.

These films were widely distributed behind the “Iron Curtain” and appear to have been especially popular in Czechoslovakia. A shortage of Native American actors in Eastern Europe led to the casting of swarthy Yugoslavs as the Indians, with one particularly popular actor, Gojko Mitic, eventually being made an honorary Sioux Indian after his films were shown to Native American audiences in the 1980’s and 1990’s.

The formal linkage of the Native American image with Pilsen ice hockey team in the Czech Republic is of recent vintage and dates only from 2010, but the city’s association with Native Americans dates back to the early 20th century. Indian head symbols have been associated with goods produced in Pilsen since at least 1915.

Their usage has been especially prominent in regard to the brewing of beer (the term pilsner is derived from Pilsen) and the production of Skoda automobiles. The current Skoda logo can be easily recognized as an adaptation of the profile of an Indian chief.

In fact, in 2010, the year that HC Skoda Pilsen adopted the Indian symbol and team name, the American Center of the United States Embassy in Prague featured an exhibit entitled, “The Story of the American Indian in Pilsen.” That exhibit focused upon the fascination with Native Americans on the part of the city’s residents and on the history of the attachment of the American Indian image with products produced in the city.

Moreover, Pilsen’s more recent history makes it especially inclined toward American symbols. According to Czech hockey fan and blogger (and Pilsen native), Lubos Motl, Pilsen considers itself the most “American” city in the Czech Republic, and the adoption of the insignia was intended to be, at least in part, a tribute to the United States.

According to Motl, the Pilsen insignia (pictured above) is a modified version of insignia of the United States Third Army’s 2nd Infantry Division, which liberated Pilsen and other parts of western Bohemia at the end of World War II.

Unlike the rest of Czechoslovakia, which was liberated by the Russian Army, West Bohemia remained under United States control for most of 1945. After the Communist takeover in 1948, Pilsen’s ties to the United States were officially forgotten, but they have been enthusiastically revived since the Czech “Velvet Revolution” of 1988 ended Communist rule.

(One example of this revival of connections to the United States is the study-abroad program in Pilsen operated by Marquette Business School in conjunction with the University of West Bohemia.)

Finally, the similarity between the HC Skoda symbol and that of the Chicago Black Hawks is probably not coincidental. Although he never played for the Chicago team, HC Svoda owner Martin Straka’s 15-year career in the National Hockey League undoubtedly made him aware of the popularity of the Black Hawks Indian head logo and the sweater on which it is embossed. Furthermore, legendary goaltender Dominic Hasek, a Czech national hero, began his NHL career with the Black Hawks.

Finally, there is at least one other prominent European ice hockey team that uses a Native American logo — Frolunda HC of Gothenburg, Sweden. The Frolunda Indians play in the Swedish (Elite) Hockey League where they have three-time winners of the Le Mat trophy, which represents the championship of Swedish Hockey. Frolunda is also, year in and year out, the Swedish leader in live attendance. Their Native American logo can be seen here.

The Native American street performers mentioned in the opening paragraph are pictured below (photograph by Monica Walker):

Monica Walker Photo



Postcard from Prague – Part Two: Describing the Czech Legal Profession

Posted on Categories International Law & Diplomacy, Legal Profession, PublicLeave a comment» on Postcard from Prague – Part Two: Describing the Czech Legal Profession

PragueUnlike the situation in the United States, where we basically have a unified legal profession with a single type of lawyer, the Czech legal profession contains several different categories of legal professionals. While most Czech legal professionals have a common university education in law (see the previous post), they are classified by different categories which are determined by the role they play, and, to a lesser extent, by the nature of the three years apprenticeship that the individual law student completes following law school.

Czech educated lawyers are divided into three basic categories: advocates (or lawyers), public prosecutors, or judges. While there is some movement between these categories, most members of the legal profession spend their careers in one category or another. In addition to these three categories, some lawyers also serve as public notaries. Czech notaries are a sort of public official who provides important services related to inheritance and the drafting of legal documents. Notaries are appointed and their numbers are limited by statute. Importantly, notaries are viewed as neutral public figures who provide necessary services, but who do not represent their clients in the same way that advocates do.

In addition to lawyers who have been educated in the Czech Republic and licensed to practice law, lawyers may provide legal services if they fall into one of the following categories:

  1. Lawyers who have been educated in other countries but who can pass an examination in Czech or Slovak that tests their familiarity with Czech Law and rules of professional conduct.
  2. Lawyers from other countries who already reside in the Czech Republic who can establish that they have successfully practiced law for three years in the country, or who can convince a commission of the Czech Bar Association that they have the necessary knowledge of Czech Law and rules of professional conduct.
  3. Citizens of a member country of the European Union who have been admitted to practice law in their own country (or in any other EU country) who have registered with the Czech Bar Association. In regard to certain areas of law, EU lawyers may be required to consult with a member of the Czech bar while representing Czech clients. (This appears to be similar to our pro hac vice notion.)
  4. Lawyers from any other country, so long as they limit their practices to the law of their home countries and international law.

The years between the Velvet Revolution of 1998, which led to the collapse of the Czech Communist government, and the country’s entry into the European Union in 2004 were a period of transition for the Czech legal profession, and even more than a decade later a process of “sorting out” the boundaries of the legal profession is still ongoing.

Under the statutes currently regulating the practice of law, lawyers may practice as solo practitioners, in office-sharing relationships, and in firms. Once rare, increasingly larger law firms are beginning to dominate the practice of law in the Czech Republic, especially in the larger cities. A substantial number of firms based in other countries, including the United States, have established branch offices in Prague.


Postcard from Prague – Part One: Comparing the U.S. and Czech Experiences in Legal Education

Posted on Categories International Law & Diplomacy, Legal Education, Public2 Comments on Postcard from Prague – Part One: Comparing the U.S. and Czech Experiences in Legal Education

Prague Legal education in the Czech Republic is similar to that in the United States in some regards, but it departs from the U.S. model in a number of ways.

First of all, the choices of where to study law are clearly more limited in the Czech Republic.  There are only four universities in the Czech Republic that are authorized to award law degrees:  Charles University (Prague); Masaryk University (Brno); the University of Western Bohemia (Pilsen); and Palacky University (Olomouc).

The most noticeable difference is that Czech students study law as undergraduates, as is the case in most countries of the world.  (The United States and Canada are outliers in that regard.)  Would-be lawyers typically enter the university as law students and remain law students the entire time they are enrolled.

At Charles University, where I am visiting, students are selected into the law department on the basis of criteria that include an SAT-like component, as well as other, more distinctively Czech forms of evaluation.  Charles University (founded in 1348) is the most selective of the four Czech state law schools, and it accepts only about 10% of applications it receives.  Law is a popular major in the Czech Republic, and, in spite of its selectivity, Charles University enrolls approximately 600 new law students each year.  Although he had little direct impact on the Czech legal system, the most famous alumnus of the Charles Law School is Franz Kafka ’06.

The Czech law course, which is essentially the same at all four of the country’s law schools, consists of five years of classes.  The first year is designed to introduce new students (who typically are 17, 18, or 19 years old) to the study of law and legal methods.  The remaining four years are devoted to a general survey of Czech law, public, private, and constitutional.

As in the United States, legal education is a mixture of practical and theoretical elements.  Unlike the United States, the Czech Republic is a civil law country, so a substantial amount of time is devoted to mastering the Czech Civil Code.  Clinical education is not emphasized as much at Charles University as it is in many American law schools, although the law school at Palacky University places a much greater emphasis on that aspect of legal education.

In addition, between a quarter and a third of Charles University law students spend at least one semester studying at a foreign university.  While this is becoming more common in the United States — witness Marquette’s programs with law schools in Denmark, France, and Spain — only a tiny percentage of American law students take advantage of such an opportunity during their three years of law school.

At the completion of the five-year law course, students must pass a final law school examination.  Those who complete the course and pass the examination are awarded the degree of Magister (Masters) in Law.

Roughly half of the students who enter the Charles University law program complete the degree in five years.  Those who have not compiled the requisite number of credits at the end of five years are permitted to remain in the program for an additional year or more, and those who have completed the course but have failed the final examination are permitted to retake it up to two more times.  Eventually, about two-thirds of the university’s entering law students complete the law degree.

Some Czech law students decide to work simultaneously on an additional degree, often in a closely related field like business or political science.  While this appears to extend the time at a university in some cases, there are students who complete the dual degrees in the usual five year period.  In addition to law, Kafka studied literature and art history, when he studied there in the early years of the 20th century. (Over the past two decades a number of Marquette students have completed either an additional M.B.A degree or an M.A. in Political Science.  While this has usually extended the period of time the student is in law school to four years, a few students have completed both degrees in three years.)

Once they have completed their law degrees, Czech students who choose to pursue a career as a lawyer must undertake a three-year apprenticeship, either with a practicing lawyer, a prosecutor, or a judge.  Those who choose the first path prepare themselves to be advocates (usually called lawyers in English); in the second track, they prepare to become public prosecutors, and in the third, judges.

The apprenticeships are paid positions, but the level of compensation is left up to the employers and not every student is guaranteed an apprenticeship.  Consequently, compensation remains low, although students with proficiencies in foreign languages are often fairly well-paid by the larger Prague and Brno firms that have extensive international practices.

At the end of the third year of the apprenticeship, the student takes either the advocate’s, the prosecutor’s, or the judge’s exam.   While the assumption is that a student will enter into the branch of the legal profession for which he has trained, the separate examinations are viewed as equivalent, so it is possible that a lawyer admitted under one professional examination could later join another branch of the profession without having to take additional examinations.  As the number of judicial positions in the country is not large, many recent graduates from the judicial track find themselves without a position and end up practicing law for at least part of their career.

There is also a fourth branch of the Czech legal profession, public notaries, who have a highly specialized, quasi-public function in the Czech Republic, relating to the authentication and drafting of certain documents and the succession (inheritance) process.  The number of notaries in the country is small and is restricted by statute. At the same time, the positions are viewed as highly lucrative.  Most, if not all, notaries have legal educations.

Obviously, this aspect of legal training is quite different in the United States.  Not only are apprenticeship requirements quite rare (though they may become more common), but American law schools are also committed to a view of legal education where they train their students for what has traditionally been called a “unitary” profession.  In the American bar there is only one category of lawyer, and a lawyer is presumed to be capable of performing a variety of professional functions in both the private and public sectors.

Not every law school graduate in the Czech Republic becomes a licensed lawyer.  Law school graduates often end up as government administrators or in law-related (but non-lawyer) positions like those of accountants and tax advisers.  In that sense, Czech employment patterns resemble those in the United States, where a surprisingly high percentage of law school graduates never practice law per se, or else they abandon the practice of law at some point in their career.

Although Charles University and the other Czech law schools award graduate LLM degrees, those programs are primarily designed for non-Czech citizens who already have a first law degree and then subsequently enroll in a Czech law school for additional training.

For Czech law students seeking more training, the next degree is a Ph.D. in law, which, unlike the case in the United States, is widely viewed as a “practical” degree.  While some of the 60 students currently enrolled in the Charles University Ph.D. in Law program are primarily interested in law as an academic subject, a larger number are using the program to establish a specialization that will enhance their marketability in the contemporary world of law practice. Given the forces of globalization and the ever-increasing economic integration of the European Union (of which the Czech Republic is a member),  Ph.D. degrees in International Law, International Business Transactions, and International Intellectual Property are particularly attractive.  (A “lesser” doctoral degree, the iuris utrisque doctor, abbreviated JUDr., is still occasionally awarded, but is considered to be of much less value than the Ph.D.)

A comparable expansion of graduate legal education has not occurred in the United States.  While American LLM programs have proliferated, in many cases they are primarily targeted at foreign students.  Where they do exist for American law graduates, they are usually only certificate programs that signal a minimal competence in, rather than a mastery of, a legal subject. Only Yale University awards a Ph.D. in Law, although a small number of universities still award the S.J.D. award, which is a somewhat old-fashioned legal counterpart to the Ph.D.  In the United States, most lawyers who pursue such degrees (as well as Ph.D.’s in fields like History, Sociology, Political Science, Economics, and American Studies) do so primarily because they are interested in careers in teaching and scholarship, and not for the purpose of developing a new practice specialty.

One area in which Czech and American law students differ greatly is in regard to student debt.  In the Czech Republic, public law schools do not charge their students tuition (and there are no private law schools entitled to award law degrees).  The only times that a law student is charged tuition is when he or she enrolls in a course taught in English (rather than Czech, which normally means that the course is taught be a visiting professor from another country), or when the student enrolls for a sixth or seventh years in law school.

Consequently, while Czech law students have very little income during the eight years (5 years of school + 3 years of apprenticeship) they spend preparing for a career in law, they do not begin their professional careers significantly in debt, as is the case in the United States.  However, Czech universities have experienced budget cuts in recent years, and some tuition charges may be on the horizon.  A previously announced plan to impose a $500 per semester tuition fee that would only come due once the student was done with college and employed was withdrawn last year.

Wisconsin and the Repeal of Prohibition

Posted on Categories Constitutional Law, Legal History, Milwaukee, Political Processes & Rhetoric, Public, Wisconsin Law & Legal System2 Comments on Wisconsin and the Repeal of Prohibition

prohibition_ends_at_lastThis past December 5 marked the 80th anniversary of the repeal of Prohibition, America’s experiment in the creation of an alcohol-free society.

Prohibition officially ended in 1933 with the ratification of the 21st Amendment to the United States Constitution. The new Amendment repealed the earlier 18th Amendment, which had made the sale and consumption of alcoholic beverages illegal in the United States.

The repeal of Prohibition is an event that has been celebrated daily in Wisconsin for the past eight decades.

Somewhat remarkably, Wisconsin, long associated with the production of alcoholic spirits, did actually vote for Prohibition. On January 17, 1919, in the wake of intense anti-German sentiment throughout the United States and in the aftermath of World War I, in which the U.S. government had used its war powers to sharply curtail the production of alcoholic beverages, the Wisconsin legislature approved the 18th Amendment by a majority vote. However, in “defense” of the legislature, Wisconsin’s approval did not come until after the Prohibition Amendment had already been ratified by the requisite number of states to bring it into law.

At the time of the Wisconsin vote, 39 other states had already ratified the proposed Amendment, three more than necessary. North Carolina, Utah, Nebraska, Missouri, and Wyoming had all ratified the Amendment the previous day (January 16), bringing the number of ratifying states to 38. (The 39th state, Minnesota, ratified the Amendment earlier the same day that Wisconsin voted for it.) That the Amendment was already set to take effect was known in Wisconsin at the time of the vote.

But having approved of Prohibition in 1919, the enthusiasm of Wisconsin residents for the “Noble Experiment” quickly waned, even though 45% of the state had actually enacted local option prohibition laws prior to the passage of the 18th Amendment.

Even the state’s highest ranking officials began to express their reservations. Republican Governor John James Blaine (of Wingfield, Wisconsin) began to publically question the wisdom of Prohibition as early as 1923, and by the middle of the decade state (as opposed to federal) enforcement of the anti-alcohol laws had come to a halt.

In 1926, advocates of repeal managed to get a measure on that year’s state ballot asking voters if they thought the 18th Amendment should be repealed or drastically modified, and just under 72% of participants voted “yes.” The following year the legislature adopted a statute legalizing beer, which was vetoed by new governor Fred Zimmerman (R. Milwaukee), but only on the grounds that it was clearly unconstitutional.

In 1928, Wisconsin went so far as to repeal all of its state laws enforcing Prohibition, and by 1932, the party platforms of both Republicans and Democrats openly called for repeal of the 18th Amendment.

Wisconsin eventually took the lead of the repeal movement when, on December 6, 1932, former Governor Blaine, now a United States Senator, introduced the original draft of the 21st Amendment into Congress. (Blaine himself was a lame duck senator at the time, having been defeated in the Republican primary in 1932, while running for a second term.) Although Blaine is largely forgotten today, he was once widely known among drinking Americans as the “Father of the 21st Amendment.”

Unlike other Constitutional Amendments, the terms of the 21st Amendment required that it be ratified by state constitutional conventions, rather than by the state legislatures. After the amendment was approved by both houses of Congress by the requisite 2/3 majorities, the Wisconsin legislature quickly scheduled an election of delegates to a state convention.

Not surprisingly, every seat in the April convention was won by an advocate of repeal. On April 25, 1933, the delegates assembled and voted unanimously to support the 21st Amendment. By doing so, they made Wisconsin the second state to ratify the Amendment. Michigan had beaten Wisconsin to the punch, but only by a mere ten days.

Within a week, a bill legalizing alcoholic beverages had been introduced into the Wisconsin legislature in anticipation of the Amendment’s impending passage. As it turned out, there was more resistance to repeal than some had anticipated (especially in rural areas and in the South), and ratification did not occur for another 7 ½ months. However, the new Amendment officially took effect on December 5, 1933, when Utah became the 36th state to ratify.

According to contemporary accounts, large crowds took to the streets in Milwaukee that day to celebrate the return of alcoholic beverages and the revival of the Brew City’s beer and liquor industries.


Why Is the Word “Redskin” so Offensive?

Posted on Categories Public, Sports & Law13 Comments on Why Is the Word “Redskin” so Offensive?

The debate over the appropriateness of Native American team names rages on. Whatever the propriety of generic Native American team names like Indians, Chiefs, Braves, or Warriors, or tribal names like Utes, Chippewas, or Seminoles, there seems to be a widespread belief that the term “Redskins” is especially offensive and insulting to Native Americans. How this perception came about is somewhat puzzling, as it appears to be of relatively recent origin.

There is little evidence that the perception of “redskin” as an inherently offensive term for Native American existed before the late 1970’s or early 1980’s. Traditionally, the word “redskin” was viewed as a synonym for Indian or Native American and did not carry the sort of negative connotations that have long attached to ethnic slurs like “chink,” “wetback,” “kike,” or “nigger.” Sportswriters covering teams with Indians nicknames during the first three quarters of the twentieth century routinely substituted “Redskins” for “Indians” or “Braves” in search of variety, and they apparently did so without being aware that this alternative word choice was more offensive than the original.

Although the name “Redskins” was earlier used by the Muskogee, Oklahoma, minor league baseball team and the Miami University of Ohio football team, the Redskins name is today primarily associated with the Washington team in the National Football League.

The team we now know as the Washington Redskins began its existence in 1932 as the Boston Braves. The name was changed to “Redskins” the following year. The new name was chosen in conjunction with the team’s relocation from Braves Park (named after Boston’s National League baseball team) to Fenway Park.

The name change was also consistent with team owner George Preston Marshall’s plan to market the team as one playing in the tradition of “Indian football.” (In the early 20th century, Native Americans were widely believed to be especially talented when it came to football, as borne out by the success of Indian college teams like Carlisle and Haskell and the Oorang Indians, an all-Indian NFL team from 1922 and 1923 which, like Carlisle a decade earlier, featured the great Indian athlete Jim Thorpe on its roster.)

Marshall’s plan for Indian football included hiring an “Indian” coach and several Native American Players, as well as adopting an Indian head logo and adorning all the players with war paint during games. This goal, of course, could have been accomplished just as easily had the team retained the name “Braves.” Moreover, there is absolutely no reason to believe that Marshall chose the name “Redskins” because he thought it was pejorative.

(It is not at all clear why anyone would name a team using a non-ironic ethnic slur, since to do so would be to impute supposedly unfavorable characteristics to one’s own players.)

Most likely, the name Redskins was chosen because it fit with Marshall’s plan to revive Indian football and because of the name’s similarity to Red Sox, in whose park the team was now playing. (The name “Indians” was apparently reserved for the NFL’s on again-off again Cleveland team.)

While one could argue that Marshall’s planned use of Native American imagery was a misappropriation of Native American cultural property, such an argument would apply whether the team was called the Braves or Redskins.

The historical record, in fact, shows that before the 20th century Native Americans frequently used the adjective “red” in reference to themselves and that the term “redskin” may have originated as a literal translation of a Native American term used to differentiate Indians from other Americans.

Moreover, widely used English language dictionaries in use as recently as the 1950’s and 1960’s reflect no acknowledgement that the term “redskin” was understood as disparaging to Native Americans.

For example, the 1952 edition of the Universal Dictionary of the English Language, described “redskin” as a “Native American Indian, a Red Man” (p. 981), but makes no reference to the word being offensive. The American College Dictionary (1956 ed., p. 1016); The Grosset Webster Dictionary (1957 ed., p. 1016); and Webster’s New International Dictionary, Unabridged 2nd Edition (1957 ed., p. 2088) all define “redskin” as a “North American Indian,” again, with no indication that the term was considered offensive. In The American Heritage Dictionary of the American Language (1969 ed., p. 1092), produced more than a decade later, the same definition is given, but with the qualification that the term is “informal” (which may be a recognition that “redskin” was passing out of everyday usage by the end of the 1960’s).

In fact, it was not until the 1983 editions of Webster’s Third International Dictionary and Collegiate Dictionary, 9th Edition that the Miriam Webster Company, the country’s leading publisher of “serious” dictionaries, added the cautionary phrase “usually taken to be offensive,” to its previous definition of “redskin,” which was simply “A North American Indian.”

In contrast, the same dictionaries from the 1950’s and 1960’s clearly indicate that the word “nigger” is understood to be offensive and derogatory. The comments so indicating range from “colloquial, contemptuous” (Universal Dictionary, p. 774) and “offensive” (American College Dictionary p. 820) to “substandard, now chiefly contemptuously” (Webster’s New International, p. 1651) and “vulgar” (American Heritage Dictionary p. 887). The Grosset-Webster Dictionary omitted the word altogether, presumably because it was in such bad taste.

While it is, of course, easy to find examples of pre-1980’s writings that disparage Native Americans while referring to them as Redskins (like Earl Emmons’ 1915 Redskin Rimes), it is even easier to find similar examples from the same era that use the word Indian while making derogatory comments (most famously, Gen. Philip Sheridan’s much repeated observation that “The only good Indian is a dead Indian”). Before the 1970’s, if not the 1980’s, there was a clear consensus that the word “redskin” was simply a synonym for “North American Indian” and was not widely recognized as a particularly offensive label.

In contrast, more recent dictionaries clearly identify the term “redskin” as disparaging. The Online Oxford Dictionary describes it as “dated and offensive.” Similarly, Merriam-Webster’s online dictionary identifies it as “usually offensive,” while the online Thefreedictionary defines it as “used as a disparaging term for a Native American,” and further classifies the term as “offensive slang.”

So what caused the meaning of the word Redskin to change when it did? Why did it become clearly offensive in the late 1970’s and the early 1980’s, when it has not been perceived in that way earlier in the century?

First of all, the meanings of descriptive adjectives, especially those with racial or ethnic connotations, do change over time. In my childhood, spent in the rural South during the final years of the Jim Crow era, we were taught that African-Americans preferred to be called “colored” or “Negroes,” and that to refer to such a person as “black” to his or her face would be insulting. I think this belief was generally held throughout the United States in the late 1950’s, and accurately expressed the views of most African-Americans as well (re: Negro College Fund and National Association for the Advancement of Colored People).

However, a decade later “black” had become the descriptor of choice for African-Americans, while “colored” and “Negro” had been cast into a linguistic dustbin. What was proper in 1959 had become awkward and unacceptable by 1969.

Moreover, beginning in the late 1960’s, the American Indian Movement and other Native American organizations began what turned out to be a largely successful campaign to convince other Americans that most of the stereotypical images of Native Americans in American popular culture were wildly inaccurate and insulting.

No art form contained more insulting images than the traditional American western. The 1970’s came at the end of an era in which the “Western” had been one of the dominant genres of American film, television, and popular literature. In westerns, the term “redskins” was regularly used in reference to nomadic plains Indians who were usually portrayed as “on the warpath.”

This repeated association of “redskins” with Indians of the American west in the post-Civil War era probably helped create an impression that a “redskin” was not just any Indian, but one that was particularly “savage.” As the notion that Native Americans were “savages” became increasingly untenable in the 1979’s and 1980’s, the word “redskin,” now increasing associated with the Indians portrayed in Westerns, may have lost its original generic qualities.

A second explanation comes from the fact the word “redskin” obviously uses a color to describe an ethnic group. While “black” and “white” became, somewhat ironically, the terms of choice identifying Negroes and Caucasians in the 1960’s, in the same era the practice of referring to Asians as “yellow” became verboten. Presumably, this stemmed from a belief that the use of the “yellow” label (as in “yellow peril”) was a manifestation of anti-Asian racism. Social pressure to drop “yellow” references did not affect the use of the terms “black” and “white,” but it may have had some impact on public attitudes toward defining Native Americans as “red.”

Finally, there is something slightly disparaging about the “skins” component of the word “redskins.” “Skins” can connote images of animal skins cut away from the body by fur hunters. While there is absolutely no basis to the frequently (and irresponsibly) repeated claim that the term “Redskins” once referred to the hides of Native Americans which could be exchanged for a bounty, there is something a little unpleasant about the similarity between “coonskin,” “deerskin” and “redskin.”

Also, in contemporary slang at least, “skins” has a number of negative connotations. The term refers to cigarette wrapping papers and, through an extension of image, it also refers to aimless teens that smoke, use drugs, and are sexually promiscuous. This secondary meaning may also give the word “redskin” unpleasant associations in our own time.

So, while it is difficult to pinpoint exactly when the meaning of “redskin” moved from innocuous to offensive, there is little reason to doubt that the general meaning of the term has changed (although polling data suggests that Native Americans are divided as to whether the use of the name Redskins by the Washington team is offensive). Moreover, the question of whether a business should be required to change its long-standing name because the meaning of one of the component terms has changed is a complicated question.

(A growing sensitivity to the representation of African-Americans in popular culture may have led to the cancellation of the Amos ‘n Andy television show, but Uncle Ben’s Rice and Aunt Jemima Pancake Mix are still on the market and still using versions of their traditional symbols.)

However, notwithstanding the changing meaning of the word “redskin,” there are other reasons to criticize the use of Native American imagery by George Preston Marshall’s football team. The real issue is not the choice of an “offensive” team name; the real issue is one regarding the boundaries of the right to appropriate someone else’s cultural property.

Before Marshall, teams that used Native-American team names rarely made much of an effort to exploit the Indian connection, unless the team was made up of Native American players. For Marshall, choosing a Native American name was only a start.

Even though the experiment with the war paint, the Indian players, the Indian coach (who, unbeknownst to Marshall, turned out not to be a real Native American) lasted only a couple of years, Marshall eventually realized that it wasn’t necessary to have real Indians to capitalize on the Native American connection. He retained the Indian imagery and expanded it to include a marching band wearing Indian headdresses, cheerleaders decked out in Indian princess costumes, and a fight song that was originally written in pidgin English and set to what were supposedly Indian rhythms.

No sports team had ever before attempted to exploit the use of Indian imagery on such a scale, but, after Marshall’s Redskins became popular, such features were widely imitated. Once he moved the team to Washington in 1937, the neo-Confederate Marshall further complicated the imagery by declaring the Redskins to be Dixie’s team. (In Marshall’s mind, the two groups, Indians and Confederates, were linked. His home town, Romney, West Virginia, is the location of an ancient burial mound that was turned into a Confederate cemetery during the Civil War.)

The real question regarding the Washington Redskins is whether or not non-Indian sports teams should have the right to exploit the cultural symbols of Native Americans. If they do not, then the Washington Redskins should become should change their name and imagery.

Of course, cultural property is notoriously difficult to define, and it not clear what the consequences would be were we to recognize even an informal proprietary on the parts of groups to their own cultural property. But that is the real issue involved in the Redskins controversy, not the meaning of the word “Redskin.”


Remembering a Classic Work of Constitutional History

Posted on Categories Constitutional Law, Legal History, Public3 Comments on Remembering a Classic Work of Constitutional History

November 2013 marks the centennial of Charles Beard’s An Economic Interpretation of the Constitution of the United States, arguably the most important book written on the United States Constitution other than the Federalist Papers. Few works of historical scholarship have ever so dramatically transformed the scholarly (if not the public) debate over the meaning of a major American event.

At the time of the publication of An Economic Interpretation, the Indiana-born Beard was a 39-year-old Associate Professor of Political Science at Columbia University, the school from which he had received his Ph.D. in 1904. As his title suggested, his new book argued that the framers of the United States Constitution of 1787 had been motivated, not exclusively by nationalistic or democratic concerns, but by the desire to protect the property rights of wealthy Americans, especially those (including themselves) who had invested in federal bonds and had speculated in western lands.

Prior to Beard’s work, most accounts of the drafting of the 1789 Constitution were highly celebratory, and the framers were almost universally lauded for their ability to put the public interest ahead of their personal priorities. Democratic political theory, rather than self-interest, was the animating force behind the document.

Beard’s book turned this argument on its head. As a result of his research, he concluded that the Constitution had been drafted by men who at best identified the national interest with their own economic interests. As he put it in the concluding chapter, “The members of the Philadelphia Convention which drafted the Constitution were, with few exceptions, immediately, directly, and personally interested in, and derived economic advantages from, the establishment of the new system. The Constitution was essentially an economic document based on the concept that the fundamental private rights of property are anterior to government and morally beyond the reach of popular majorities.” (p. 324)

The implications of this conclusion were apparent. The Constitution was a conservative, property-oriented document that was designed, not to expand democratic power, but to contain it. It was the democratic “excesses” of the period 1776-1787 that required a new constitution, not the deficiencies of the Articles of Confederation.

As Beard wrote in the book’s concluding paragraph, “The Constitution was not created by ‘the whole people,’ as the jurists have said; neither was it created by ‘the states,’ as southern nullifiers long contended; but it was the work of a consolidated group whose interests knew no state boundaries and were truly national in their scope.”

Most controversial of all was his claim, allegedly justified by the records of the United States Department of the Treasury, that a significant majority of the framers had invested in United States bonds during the Confederation period and thus had a personal reason to want to establish a strong federal government intent on establishing the security of such bonds. While many wealthy Americans opposed the ratification of the new constitution, their wealth, according to Beard, was concentrated in real, rather than personal, property and they were not heavily invested in the speculation of western lands.

Beard’s belief that the Constitution was the product of a clash between competing economic interest groups was an extension of the ideas advanced shortly after the turn of the century by University of Wisconsin historians Frederick Jackson Turner and Carl Becker. Although Turner’s published work focused primarily on the role of the “west” in American history, he encouraged has students to critically reexamine the founding period. Becker, in his History of Political Parties in the Province of New York, 1760-1776 (1909), argued that the American Revolution had been as much about who would rule at home as it was about home rule. In that sense, Beard’s work was a logical extension of Becker’s theory into the post-Revolutionary War era.

In his later books, especially An Economic Interpretation of Jeffersonian Democracy (1915) and The Rise of American Civilization (1927), Beard expanded this interpretation to the whole of pre-World War I American history.

The view of Beard and Becker and other like-minded historians that the history of the United States was primarily a story of class conflict came to be known as the progressive interpretation of American history. While this view never gained widespread acceptance among lawyers and the American public (which continued to prefer a more heroic account), it dominated the work of academic historians in the United States from the mid-1910’s until the end of the Second World War.

Beard’s interpretation of the Constitution was always controversial. The book was roundly denounced upon its publication by a wide array of public figures, including former U. S. President and future Chief Justice of the Supreme Court William Howard Taft. Moreover, not every academic student of the Constitution was convinced. Edward S. Corwin of Princeton University, the foremost constitutional scholar of the early twentieth century found Beard’s work excessively dominated by the theme of economic conflict and not sufficiently appreciative of the power of ideas. Many other critics labelled him a Marxist.

An Economic Interpretation’s influence began to wane after the Second World War. Beard himself had damaged his personal reputation a great deal by opposing United States entry into the war, even after the attack on Pearl Harbor. Moreover, in the Cold War era, the focus of academic writing in the field of American history shifted away from themes of class conflict to themes of consensus, and the progressive interpretation began to lose force. Moreover, a later group of historians, reviewing the records examined by Beard as well as other sources not available to him, argued persuasively that Beard had exaggerated the extent to which the investment in government bonds and land speculation differentiated those who supported the Constitution of 1787 from those who opposed it.

To many of his modern critics, Beard’s work seemed too narrowly ideological and insufficiently sensitive to the nuances of the past.

However, Beard’s larger argument–that the Constitution was a conservative document designed to rein in the more radical governmental ideas of the Confederation Period–was not necessarily contingent on proving the existence of naked self-interest on the part of the framers. Nor did one have to be some sort of Marxist or socialist to accept that premise. Moreover, in the preface to the 1935 republication of An Economic History (at a time when the progressive interpretation was in its heyday), Beard himself insisted that his primary purpose had been to emphasize that economic considerations were an important part of the backdrop to the drafting and ratification of the Constitution, a fact that had been ignored by previous constitutional historians, but is one that few contemporary historians would deny.

Although An Economic Interpretation is still in print, it is rarely read today. Graduate students in history departments and law schools learn about Charles Beard, but they do not read his classic works. (If they ever did. In 1935, Beard mused that his book might well be the most criticized and least read book on any aspect of American history.) Nevertheless, students of the constitutional history of the United States would disagree that the critical examination of our constitutional traditions is much more likely to advance the cause of constitutional government than to hinder it.

In the 21st century, most Americans continue to revere the drafting and ratification of the United States Constitution as though it were an event of religious significance. The character and motives of the Founders are accepted as noble and almost beyond critique, even while though we acknowledge that our government today is largely influenced by the lobbyist agents of the vested interests of the present. However, if you wince, or mentally insert quotation marks, when you hear someone talk about the Founding Fathers,you are keeping alive the tradition of Charles Beard and An Economic Interpretation of the Constitution.

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