Remembering the 1912 Law School Commencement

As the members of the Class of 2012 make their way into the legal profession, and memories of this past May’s Commencement ceremony begin to fade, it is an interesting historical exercise to look back at the Law School’s 4th Commencement in June of 1912.

In 1912, there were two commencement ceremonies at Marquette University: one for the Colleges of Arts & Sciences, Engineering, Law, Music, and Economics and the other for Medicine, Dentistry, Pharmacy, and Nursing. (In 1913, the two ceremonies would be combined into a single event held at the Milwaukee Auditorium.)

The 1912 Commencement for the College of Law was held on Friday evening, June 21, at the Pabst Theatre [sic].

Music was supplied by the Marquette University Orchestra, which performed Franz Von Suppe’s overture “Poet and Peasant,” as well as selections from Aida and the Mikado, and then closed the ceremony with John Philip Sousa’s “Manhattan Beach March” (which was also played at the 2012 Commencement).

A total of 48 degrees and diplomas were awarded that evening. The College of Arts and Sciences awarded 18 degrees, including 5 Master of Arts degrees; the Law School awarded 15 Bachelor of Laws degrees; the College of Engineering presented nine Bachelor of Science degrees in civil, electrical, and mechanical engineering; the Business School awarded one Bachelor’s Degree in Economics and two Diplomas in Business Administration, while the Music School awarded a single Bachelor’s Degree. In addition, two students received Diplomas in Journalism.

All the degree recipients were male, although there were likely a number of female graduates at the “medical” commencement. (In 1913, for example, women received degrees from all four of the “medical” colleges.)

Candidates for the Bachelor of Laws degree were presented by the dean of the law school, retired United States Circuit Court Judge James G. Jenkins. All were listed as Wisconsin residents except for David Haley, who was from Hibbing, Minnesota. The degrees were formally awarded by Rev. Joseph Grimmelsman, S.J., the university president. The sole Commencement speaker was the Hon. Paul D. Carpenter, who was the Assistant United States Attorney in Milwaukee as well as a former Milwaukee County Judge and a former Lecturer at the College of Law. (He was also the son of the noted Wisconsin United States Senator, Matthew Hale Carpenter.)

Fourteen of the 15 recipients of the Bachelor of Laws degrees received regular degrees, but one received what was designated an “Honorary Degree, Bachelor of Laws.” This was a carryover from a decision made in 1908 in conjunction with the takeover of the independent Milwaukee Law School. The Milwaukee Law School never bothered to apply for degree granting authority (presumably because all that Wisconsin required as a prerequisite for taking the bar examination was three years of law study). In taking control of the law school, Marquette agreed to award Marquette University Bachelor of Laws degrees to any former student of the Milwaukee Law School who had passed the Wisconsin bar examination.

While this created an instant pool of law alumni, the decision turned out to be ill-advised, and by 1912 the university was being criticized, probably unfairly, for selling law degrees. (There was a $10 graduation fee that had to be paid by anyone seeking a degree.) By 1910, the title of the degree had been changed to “Honorary Degree,” and by 1911, the number of such degrees awarded was only nine. The university clearly discouraged any suggestion that current night students could be awarded degrees under the original agreement, and in 1912, 1913, and 1914, only one honorary degree was awarded at each commencement. In 1915, there were none.

The 14 recipients of the regular Bachelor of Laws degree were the winners in a war of attrition. Thirty-three students had begun as full-time students in the College of Law’s day division in the fall of 1909. Their number declined to 26 the following fall, and to 24 in the fall of 1911. Although the class picture, which hangs outside the #253 Faculty Office Complex in Eckstein Hall, shows 24 class members, only 14 met the requirements for graduation in the spring of 1912. To graduate, students were required to pass 72 semester credit hours with a grade of at least 70 (on a 100 point scale) in each course.

However, the rules of the College of Law allowed students to continue in the law course, even if they had no realistic chance of graduating, so long as they met certain minimal standards. All a student had to do to remain eligible to continue was to pass half of his (or her) courses each semester. In theory, at least, one could make it to the end of the three-year law course with barely half the credits necessary to graduate.

While this seems oddly lax by modern standards, it made sense because graduation from law school was not a prerequisite for admission to the bar in Wisconsin (or any other state) in 1912. Whether or not a student passed, or even took, law school examinations was irrelevant for bar examination eligibility, so long as he or she had devoted the requisite amount of time to law study (which in 1912 Wisconsin was three years.) Moreover, since the Wisconsin diploma privilege was not extended to Marquette Law School graduates until 1934, those who received the law degree had to take the same examination as those who did not.

Actual receipt of the law degree may have conveyed a measure of prestige upon the recipient but it did not confer any formal benefit in regard to bar admission. Nor is there any evidence in 1912 that the lack of a degree was a substantial impediment to a successful career as a lawyer, so long as the student could pass the bar examination.

Few of those who did complete the degree actually excelled on their examinations. Of the 14 law graduates in 1912, only two, Leo W. Bruemmer of Kewaunee, Wisconsin, and Oliver L. O’Boyle of Milwaukee, achieved a cumulative average of over 90, which was required to graduate cum laude. O’Boyle, who would later serve as Corporation Counsel for Milwaukee County from 1931 to 1956, was clearly the star of the 1912 Commencement. Not only was he one of two students to receive his law degree with honors, he also simultaneously received a degree of Master of Arts, an accomplishment achieved by only four other students.

Also receiving the degree of Master of Arts that day was Milwaukee native and first-year law student, Francis X. Swietlik. Swietlik had begun work on the Master of Arts degree after receiving his B.A. degree from Marquette in 1910, and he apparently finished the requirements during his first year of law school.

Swietlik, of course, later became an important leader of the American Polish community, and was closely connected to the Law School for more than 50 years. He became a part-time faculty member in 1916, joined the permanent faculty in the 1920’s, served as dean from 1934 to 1952, and then continued to teach at the law school while serving as a Milwaukee Circuit Court judge until his retirement in the 1960’s.

More on Swietlik’s Marquette career can be found here.

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Still Waiting for the Great Baby Boomer Lawyer Novel

The Baby Boom generation (those born between 1946 and 1964) transformed the practice of law in the United States. Through the sheer numbers alone, the legal profession was dramatically altered by the influx of members of this generation.

In 1968, the year when the first Baby Boomers enrolled in law school, total law school enrollment in ABA-accredited law schools was 62,779 students; by 1987, when the first post-Baby Boomer students entered law school, the number had increased to 123,198. In the spring of 1968, there were 14,738 law school graduates; in the spring of 1987, the number was 36,121.

The impact of the surge of Baby Boomer law students on the size of the American Bar was extraordinary. In 1970, there were approximately 250,000 lawyers in the United States; by 1990, the number had more than tripled, to over 800,000.

The way in which law was practiced also changed during the era in which members of the generation flooded into law schools.

When Baby Boomers were in elementary school, 60% of American attorneys were in solo practice; by 1990, that number had dropped to less than a third, as the modern corporate law firm came to dominate the professional landscape. Accordingly, the number of lawyers who were associates in law firms nearly tripled between 1950 and 1990.

Baby Boomers also made the legal profession dramatically more diverse, and ended the 300 year tradition of the bar as a white-male bastion. In 1968, 4.3% of law students were women. By 1986, the percentage had grown to 38.9%. In regard to racial minorities, the impact was even greater. In 1970, there were fewer than 4000 black lawyers in the United States; by 1990, there were more than 26,000.

Harder to measure is the cultural impact of a generation of lawyers who grew up in relative affluence but under the cloud of the threat of a devastating nuclear war. As the generation that gave rise to the phrases, “peace and love,” “sex, drugs, and rock and roll,” and “Don’t trust anyone over 30,” it seems likely that at least the residue of such attitudes affected the way that Baby Boomer lawyers thought about their profession and the way they practiced law.

For the past quarter-century, at least, Baby Boomers have also dominated legal education—for an example, just look at the profiles of the Marquette faculty. Contemporary law school education is in many ways a Baby Boomer recrafting of traditional instructional methods.

Such material seems ripe for fictional exploration, but the world still awaits the first great “Baby Boomer Lawyer Novel.”  Although it (or at least the film version) was a major artifact for Baby Boomer law students, I don’t think that John Jay Osborn’s The Paper Chase (1970) quite qualifies for this title since it was published at the outset of the Baby Boom experience with law school and deals only with legal education. (Technically Osborn, who was born August 5, 1945, missed the Baby Boomer cut-off by the being born five-months too early.) I also don’t think that his later novel about law practice, The Associates (1982), meets the “greatness” standard.

John Grisham (born 1955) has sold almost 300 million books about lawyers, but none of his books attempt to capture the generational experience of lawyers of his generation, although I suppose a case could be made for The Summons (2002), which is, interestingly, one of his less well-known novels.

Consequently, I was quite intrigued when I read the review of Kurt Andersen’s new novel, True Believers, in the July 8th New York Times Sunday Book Review. Andersen’s novel is the story of Karen Hollander, born 1949, who grows up in a Chicago suburb, becomes radicalized by the Vietnam War, goes to Harvard and then Yale Law School, and then embarks on a career in law which takes her through a series of successful stints as a legal aid lawyer, a corporate litigator, a Justice Department attorney, and as a professor at Yale Law School. In the novel’s present (2014), she is the Dean of the UCLA Law School and is under consideration for an appointment to the United States Supreme Court.

Over the course of four decades, Hollander traverses wide swathes of the law practice terrain and ultimately approaches the pinnacle of the profession, the Supreme Court. For good measure, she does all of this as a woman.

However, there is more to Hollander’s story than just a track record of success. Throughout her career, Hollander has kept secret her involvement in a violent antiwar protest during her college years. While the details of this event are concealed until the end of the novel, this reader early on began to think of Hollander as a cross between Hilary Clinton and Bernadine Dohrn, the former member of the SDS Weatherman faction who ended up as a law professor in Chicago.

(I do realize that Dohrn’s birth year of 1942 places her with the preceding generation, which included those born during the Great Depression and the Second World War. Clinton, on the other hand, is a card-carrying Baby Boomer and actually briefly appears in the novel as one of Hollander’s fellow students at Yale Law School.)

Unfortunately, the novel pays almost no attention to the protagonist’s legal career/careers, other than repeated references to the fact that she is an extraordinarily successful and widely admired lawyer. The bulk of the novel is a series of flashbacks that help explain Hollander’s gradual movement from teen-age James Bond aficionado to erstwhile 60’s radical. The details stop at the end of her freshman year at Harvard which is when the long-kept-secret incident occurred. After that the narrative returns to the present (which is, technically, the near future).

Very little is made of the fact that the Hollander’s was on the cutting edge of the movement to carve out places for women in what has historically been an all-male profession. Nor is there any discussion regarding how the practice of law changed, or did not change, during her post-law school years.

Consequently, I am obligated to report that we are still waiting for the Great American Baby Boomer Lawyer novel.

Even so, I have to admit that there were parts of True Believers that I found fascinating for purely personal reasons. The novel goes to great length to recreate physical and cultural landscape of Karen Hollander’s adolescence. Because I am only three years younger than the protagonist, the general historical and cultural references were all quite familiar.

Moreover, like the narrator, I went through an intense “James Bond” phase in my early teen years—but the Bond that was the object of our obsession was not the cartoonesque James Bond of the movies, but the grittier secret agent of the Ian Fleming novels which were, amazingly, in my high school library.

Even more coincidental is that in spite of my rural Southern origins, I have travelled much of the same geographic territory as the narrator. Karen Hollander grew up in the Chicago suburb of Wilmette, Illinois, in the 1960’s. While the character in the novel was long gone by the time I arrived in 1987, I lived in Wilmette from nearly a decade while teaching in Chicago.

Anderson, the author, clearly went to great lengths to ensure that the movements of the characters around the village matched the actual geographic landscape, and it was fun to appreciate this while reading the novel. Ironically, both the narrator and I lived on Schiller Street, a four-block long lane in the middle of Wilmette which is just south of Lake Avenue.

I had a similar sense of déjà vu when the story shifts to Cambridge, Massachusetts, where I arrived as a graduate student only eight years after the character’s departure. Again, I recognized the settings for most of described events, including the eatery, “Tommy’s Lunch,” a legendary Mt. Auburn St. diner that is sadly no longer with us.

For what it is worth, in the intersecting worlds of fact and fiction, the fictional Karen Hollander would have been a classmate of my colleague David Papke at both Harvard College and Yale Law School. On the other hand, at least so far as I can tell, David does not appear in the story.

For anyone who is interested, Kurt Anderson, the author of True Believers is a genuine Baby Boomer (b. 1954) and Harvard graduate (Class of 1976 and one of the editors of the Harvard Lampoon). However, he was from Omaha, so his detailed knowledge of Wilmette geography must be a labor of love. Also, it appears that he never attended law school (nor, for that matter, has he ever been a woman). He was the co-founder of the late Spy magazine (one of my all-time favorite publications) and is the author of a fantastic historical novel about the California Gold Rush called Heyday (2007).

I am no expert on contemporary fiction, so if someone out there has a suggestion for a good novel that tackles the experiences of the Baby Boom generation with the legal profession, I would love to hear about it.

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Punishing Paterno, Part II

I appreciate Gary Werkheiser’s comments on my earlier blog post, “Punishing Paterno.” Mr. Werkheiser’s observations can be found here. He is concerned that I too uncritically accepted the conclusions of the Freeh Report, the result of the investigation conducted by former FBI Director and federal judge Louis Freeh at the request of the Pennsylvania State University Board of Trustees.

There is no doubt that the NCAA penalty stage of the Sandusky-Paterno-Penn State affair developed with remarkable speed. It was that very fact that prompted me to publish the original blog post and to offer a similar recommendation on the SportsLaw Blog. I thought it was important to point out that punishments directed only at future football players and coaches would not adequately penalize those who were most responsible for the Penn State disaster. Nothing that Mr. Werkheiser mentions in his comment provides a reason to alter my original judgment regarding the culpability of Penn State Head Coach Joe Paterno.

Mr. Werkheiser, incidentally, is not just an ordinary Penn State alumnus, but is a leader of the Los Angeles Penn State alumni chapter and has been actively involved in fund-raising on behalf of Penn State and its Alumni Association. He earned a degree in accounting from Penn State in 1981, and, on his LinkedIn page, he describes himself as a “successful real estate professional, investment advisor and event producer.”

Mr. Werkheiser’s argument can be divided into three parts.

First, he insists that the Freeh Report contains no evidence that Joe Paterno was aware in 1998 of his friend Sandusky’s inappropriate conduct with young boys, and that the emails cited as evidence in the Freeh Report only contain references to “coach,” which Mr. Werkheiser suggests may refer to someone other than Joe Paterno.

Had Mr. Werkheiser read the Freeh Report more carefully, he would have noticed that the key May 5, 1998, email from Penn State Athletic Director Tim Curley to University Vice President Gary Schultz and University President Grant Spanier had as its subject, “JOE PATERNO.”

This email, which involved an incident in which a mother had complained about Sandusky’s inappropriate physical contact with her son in the Penn State locker room showers, contained the statement, “I have touched base with the coach. Keep us [emphasis added] posted.” (Freeh Report, p. 48) To suggest that “coach” might be a reference to an assistant coach for the Penn State woman’s volleyball team, or some other Penn State coach rather than Paterno, whose name appears on the email subject line, is simply silly.

Moreover, in a May 13, 1998, email from Curley to Schultz entitled “JERRY,” Curley wrote, “Anything new in this department? Coach is anxious to know where it stands.” (Freeh Report, p. 49) I suppose it is possible that by “Coach,” Curley was referring to the coach of the Penn State club bowling team, but I don’t think he was.

So, unless Curry was for some bizarre reason lying about having discussed the matter with Paterno, the two May emails indicate that Paterno had been informed of Sandusky’s alleged transgressions before May 5, 1998.

Secondly, Mr. Werkheiser also points out, correctly, that no criminal charges were filed against Sandusky as a result of the 1998 incident. Apparently, the state officials who investigated the complaint concluded that the lack of evidence that Sandusky, while cavorting in the nude with the 11 year-old boy, had touched the boy’s genitals made it unlikely that a criminal conviction could be obtained. (Freeh Report, pages 47-50.)

Whether or not this conclusion on the part of public officials was legitimate, or whether it was part of a widespread public effort to protect the reputation of the Penn State football program is still an unanswered question. However, the decision not to prosecute in no way relieved Joe Paterno of his moral and ethical duty to ensure that his coaches were not exploiting their connections to Penn State to the detriment of minors.

Even if Mr. Werkheiser’s arguments that the Freeh Report does not establish that Paterno had knowledge of the 1998 incident were correct, that fact would only push the date of Paterno’s culpability forward to 2001, when he clearly failed to take meaningful action upon evidence of continued abuses of young boys by Sandusky.

Finally, Mr. Werkheiser takes Judge Freeh to task for failing to interview Joe Paterno, Tim Curley, Gary Schultz, assistant coach Mike McQueary, Penn State Police Chief Harmon, and the Centre County district attorney. Again, had Mr. Werkheiser read the Freeh Report more carefully, he would have realized that Freeh’s investigators actually attempted to interview all of these individuals, except for the district attorney from 1998, who was already dead at the time the investigation began. (Freeh Report, p. 46.)

Paterno initially declined the interview request of the investigators, although he agreed to speak with them at a later time. Of course, his subsequent death made that impossible. (Freeh Report, p. 12.)

Both Curley and Schultz, who were under indictment for criminal offenses related to the Sandusky cover-up, refused to speak to the investigators, citing advice of counsel. (Sandusky himself refused to be interviewed for similar reasons.) McQueary and Police Chief Harmon were not interviewed, but only because of the Pennsylvania Attorney General’s request that the two not be questioned because of the possibility that criminal charges might be filed against them as well. (Freeh Report, p. 12.)

Given the Fifth Amendment and the priority of state criminal proceedings over administrative investigations, Freeh and his team had no opportunity to interview the individuals cited by Mr. Werkheiser. Consequently, Mr. Werkheiser’s criticism of Judge Freeh on these grounds is either uninformed or disingenuous.

I understand that Mr. Werkheiser bleeds Penn State blue and that it can be emotionally wrenching to learn that a man that you have idolized all your life was capable of serious transgressions. However, even the most resolute Penn State fan should know that ad hominem attacks and misstatements of fact are not going to clear the name of Joe Paterno.

I do not believe that Joe Paterno was an evil man, although I think the proclamations of his saintliness in his lifetime were a bit exaggerated. (After all, how many actual saints earned millions of dollars on their way to canonization?) In a very human way, Paterno fell victim to the worship of an idol of his own creation—the Penn State football program and his vaunted “Joe Pa” image. Somewhere along the way, he unfortunately chose the protection of the reputation of his program and his image over his Christian obligation to care for those who could not protect themselves.

The Freeh Report can be found here.

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