Remembering Year 2 in Sensenbrenner Hall

As we settle into the second year of Eckstein Hall, it is interesting to look back and try to imagine what it would have been like to have been a student in Sensenbrenner Hall in its second year, 1925-1926.

First of all, the Sensenbrenner Hall of 1925 was quite different from the building that the law school vacated in July of 2010. The original building, known only as the Law Building until the 1950’s and constructed for the princely sum of $200,000, contained 5540 square feet of space (not counting the basement). The building ran for 100 feet along Wisconsin Avenue and for 60 feet along Eleventh Street, but a 10′ by 46′ indention at its southwest corner kept it from being perfectly symmetrical.

Not only was the then-new law building just the front part of current structure, but its interior was also arranged quite differently from the way that we remember it. Its principal components were three classrooms, two courtrooms, a palatial reading room, the library stacks, and a variety of offices.

As one entered the building from W. Wisconsin Avenue, the room on the first floor to one’s immediate right was a lecture hall.

On the left hand side of the hallway were an office and a faculty room/lounge. Beyond the lounge and the northeast lecture hall were four more offices, two on each side, and another lecture hall on the west side of the building.

The east side of the second floor was the moot court room, in which mock cases were tried before “Judge” Dean Schoetz each Thursday during the school year. Opposite it were another office and a jury room. The western half of the floor was divided between a classroom in the northwest corner and the appellate courtroom opposite it on the southwest side of the building.

On the east side of the third floor was found the luxuriously appointed Grimmelsman Memorial Reading Room, which had been funded by a separate gift of $50,000 from the Cramer family in honor of one of the University’s earlier presidents. (The Cramers were apparently promised that the name of the room would never be changed.) On the opposite side of the floor were the stacks that constituted the school’s library. In addition to a center hallway, the third floor also included two offices.

In the basement, one could find a smoking room in the west third of the building with the rest of the space divided between the janitor’s room, a locker room, and an “unassigned” room.

The two biggest academic changes between 1924 and 1925 came from the law school’s decision to eliminate its night division and to require all first year students to have completed two years of college before enrolling in the law school..

For the first time in the school’s 17-year history all first-year students in 1925 were full-time students. Moreover, full-time students now had to present evidence of two years of college work, not just one as had been the case in 1924.

Although currently enrolled night students were allowed to finish their course of study in the evening, these two changes caused the school’s overall enrollment to drop sharply from 325 students in the fall of 1924 to 235 in the fall of 1925. First year enrollment, not surprisingly, was down significantly, as only 39 new freshmen law students enrolled under the more rigorous entrance requirements.

Enrollment would drop even further to 203 students in 1926. (By way of comparison, total enrollment at the University of Wisconsin Law School in 1924-25 was 240 students.) The elimination of the night program did make Marquette eligible for ABA accreditation, which it received in 1925, two years after the American Bar Association began to accredit law schools.

While most of the law students were male, there were a handful of female students, including Lois Kunzli, who sat on the board of directors of the Coed Club, the leading campus women’s organization.

The faculty was made up of 17 professors, five of whom — Dean Max Schoetz, John McDill Fox, Willis Lang, A.C. Umbreit, and Carl Zollman — were full-time teachers. The part-time instructors included Wisconsin Supreme Court Justice Franz Eschweiler, Municipal Judges A.C. Backus and Otto Briedenbach, and Thomas Lyons, the former chairman of the Wisconsin Tax Commission.

Students in 1925 paid $85 per semester in tuition, plus a $3 health service fee each semester. Books were projected to cost $40 in the first year, $25 in the second, and $30 in the third. Students were advised that “Good board can be secured near the Law School at $5.50 to $7.50 per week. Students who club together can board for less.” Legal education, it seems safe to say, was less expensive in the old building.

Marquette graduates in 1925 and 1926 were still required to take the Wisconsin bar examination, but that was okay with Dean Max Schoetz who was an outspoken opponent of the diploma privilege and who supported efforts to have it abolished in Wisconsin.

In summing up the second year of student life in the new law building, the Hilltop, the Marquette yearbook, noted, “Under the direction of Dean Max Schoetz, Jr., the school of law has become one of the most active and enthusiastic departments in the university. During the past year the students in the law school were represented in almost every phase of student life. The lawyers began their year’s activity by winning the Homecoming Trophy for the best float in the parade. On the athletic field, Lavern Dilweg, junior barrister, won recognition for the school of law by being place on Walter Eckersall’s All-American team [for college football].” (Dilweg, an end, went on to star for the Green Bay Packers and later was elected to Congress.)

The law school’s basketball team, also starring Dilweg, won the university intramural championship, and two members of the varsity golf team, including captain Leonard Fons, were law students. A debate team, composed entirely of law students, defeated the team from Cambridge University during its American tour.

A picture of the new law building with an inset of the chandelier and stained glass window from Grimmelsman Reading Room were set out on page 19 of the yearbook. The annual law dance, held in the Knights of Columbus ballroom on January 22, 1926, was reported on page 108. The Law Review, in its sixth year of operation was led by editor-in-chief John M. O’Brien.

With a brand new law building, a day-only student body, new entrance requirements that were exceeded by only a handful of American law schools, and a full-time faculty that included Carl Zollman, one of the best known legal scholars in the United States, AALS membership, and ABA accreditation, the Marquette Law School was well-positioned to take a place among the leading law schools of the 1920’s.

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Do We Need an Anti-Siphoning Act in the United States?

The remarkable Milwaukee Brewers have now reached the second round of the Major League Baseball play-offs, but many Brewers fans have yet to have the opportunity to stay at home and watch the team play post-season games on television. The reason, of course, is that this year all first round play-off games as well as the second round of National League play-offs are shown only on cable television. Those who don’t subscribe to cable are shut out of watching the Brewers on television, unless they can make their way to Long Wong’s Sports Bar on Blue Mound Avenue, or some other similar establishment.

This was, of course, not always the case. Until 1996, all Major League Baseball post-season play-off games were on free television. That year, ESPN won the right to broadcast any first round play-off games not aired by NBC or FOX, then Major League Baseball’s primary broadcast partners. Since that time, the number of play-off games on pay television has been steadily creeping upward.

In Australia and in many European countries, the local equivalent of Major League Baseball’s playoff games would be required by law to be broadcast on free television. Called anti-siphoning statutes, these laws dictate that certain sporting events must be made available for broadcast on free, open-air stations, if they are broadcast at all.

In Australia, for example, every regular season and play-off match played in both the Australian Football League Premiership (Australian Rules Football) and the National Rugby League—the country’s two most popular sports leagues—are on the anti-siphoning list. On the list as well are a host of other sporting events, many of which take place outside of Australia, ranging from the FIFA World Cup to the U.S. Masters Golf Tournament to all test matches played by Australia’s senior representative cricket team.

In the European Union, the 2007 Audiovisual Media Services Directive encourages individual members to adopt similar protected lists, and guarantees legal immunity from any other EU rule or regulation that might arguably apply. Such guarantees exist in a variety of European countries, including Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Italy, and the United Kingdom.

The failure of Arab countries to adopt such statutes meant that the vast majority of Arab citizens were not able to watch, at least legally, the 2006 World Cup, because the exclusive broadcast rights were sold to a single satellite broadcaster that charged exorbitant rates for its signal. (I have written about this issue in some detail in an article entitled “The Over-Protection of Intellectual Property Rights in Sport in the United States and Elsewhere” that appeared in the Winter 2011 issue of the Journal of the Legal Aspects of Sport.)

Almost twenty years ago the United States Congress expressed concern about the migration of high profile sporting events to pay television when it adopted the Cable Television Consumer Protection and Competition Act of 1992, which authorized the FCC to study the issue. To date, most of the major sporting events in the United States—the World Series, the NCAA Final Four, the NBA Finals, and the Super Bowl—remain on free television, but that may soon change.

In recent years, a variety of popular sporting events have been shifted to pay television, including most of the races constituting NASCAR’s Chase series, early round play-off games in the NBA and NHL, as well as Major League Baseball, two of the four tennis majors, and one of golf’s four majors. Moreover, last year the BCS championship game was, for the first time, broadcast exclusively on cable television (ESPN), and will be for the foreseeable future.

That there has not been more uproar over the recent shifts may reflect that fact that an estimated 75% of the United States population now has access to basic cable or satellite television, placing those of us who do not in a distinctively minority position.

Furthermore, whether an American anti-siphoning law could withstand First Amendment scrutiny is an interesting question. Early on in the history of cable television in the United States, the FCC issued a draconian guideline that essentially prohibited cable television broadcasters from airing any live sporting events at all (as well as prohibiting original programming not first shown on free television). This rule was struck down by the D.C. Circuit Court of Appeals in Home Box Office v. FCC, 567 F.2d 9 (D.C. Cir. 1977), but that directive was far more restrictive than any modern anti-siphoning statute, all of which permit the simultaneous broadcasting of events on free and pay television. However, given the solicitude shown for commercial speech by the current United States Supreme Court, the fate of such legislation is hard to predict.

As a baseball fan, I feel aggrieved by not being able to watch the Brewers games on free television. However, so far I do not feel aggrieved enough to subscribe to cable television or, for that matter, to complain to my Congressman. For the time being, I will just have to root for the Brewers to make it to the World Series, which, thankfully, is still on regular television.

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Al Davis, R.I.P.

The late Al Davis, the mercurial owner and general manager of the Oakland Raiders football team, arguably had a greater impact on American sports law than any member of his generation.

Davis reached the pinnacle of American sport even though he possessed neither great athletic ability nor access to financial resources. Born in Brocton, Massachusetts, Davis spent his childhood and adolescence in Brooklyn, and his voice never lost its New York edges. After finishing Erasmus High School in Brooklyn shortly after the end of the Second World War, Davis entered Syracuse University hoping to play either football or baseball. His lack of success on the playing fields prompted him to transfer to Wittenberg University in Springfield, Ohio, but after a year there, he transferred back to Syracuse where he played on the junior varsity football team and sought unsuccessfully to land some sort of coaching or managerial position with the varsity.

After graduating from Syracuse with a degree in English in 1950, Davis relied on New York connections to land a job as an assistant football coach at Adelphi University on Long Island, and for the rest of the 1950’s, he travelled from one assistant coaching job to another, putting in time at Adelphi, the U.S. Army base at Ft. Belvoir, the Citadel, and at the University of Southern California where he helped coach the offensive line.

His big break came in 1960 when former Los Angeles Rams head coach (and fellow Jew) Sid Gillman tabbed Davis to be part of his staff with the Los Angeles Chargers of the newly organized American Football League. Davis stayed with the Chargers when they moved to San Diego the following year, but he left the team in 1963 to assume the position of head coach and general manager of the league’s hapless Oakland Raiders.

Only 33 years old and a head coach for the first time in his career, Davis led the Raiders to their first winning season ever and was named the AFL’s Coach of the Year.

In April, 1966, the AFL league owners chose Davis as the league new commissioner, following the resignation of original commissioner, Joe Foss. Immediately upon assuming office, Davis launched a raid on the rosters of the rival National Football League, and signed a number of the senior league’s star players to future contracts with the AFL. (Included among those signing AFL contracts in 1966 were seven of the fifteen starting quarterbacks in the NFL and Chicago Bears star tight end, Mike Ditka.) Davis’ aggressive policies helped prompt the NFL owners to propose a merger of the two leagues, an offer that the AFL owners willingly accepted.

After the merger agreement was signed, Davis stepped down as commissioner (after a term of only four months), and returned to the Oakland Raiders. In addition to reassuming his duties as General Manager, he also purchased a 10% ownership share in the team, making him one of three owners. In 1972, he cleverly ousted managing partner F. Wayne Valley (who had originally hired Davis as coach and general manager after the 1962 season) and took over control of the team. He remained the team’s managing partner for the rest of his life, even though he did not become the majority owner until 2005.

During his tenure, the Raiders had the best overall record in professional football. His team played in five Super Bowls, winning three times (1976, 1980, 1983), and losing twice (1967 and 2002). For his accomplishments with the Raiders, Davis was inducted into the NFL Hall of Fame in 1992.

Davis’ greatest contribution to “sports law” came in 1980, when he filed an antitrust lawsuit against his fellow NFL owners when they refused to permit him to relocate his team from Oakland to Los Angeles. Davis prevailed, and while he eventually returned the team to Oakland, he helped establish that the NFL was not a single entity for antitrust purposes (a holding confirmed by the Supreme Court in its recent American Needle decision).

The Raiders lawsuit also made it clear that the internal rules of a professional sports league could be challenged on antitrust grounds by a dissenting team owner, even if they were adopted by procedures agreed to by the disgruntled owner at the time that the team was acquired.

Since the Raiders case, all professional sports leagues in the United States (except for the antitrust-exempt Major League Baseball) have had to operate with the specter of antitrust litigation hanging over their heads when they deal with non-cooperative owners.

An even greater contribution might have been the one that Davis tried unsuccessfully to advance in 1966 when he was the AFL Commissioner.

It has been a fact of life in the history of American teams sports that there are almost never competitor major leagues in the same sport. Although there have been many efforts to establish competitor major leagues, the upstart leagues either fold—like 19th century Union Association and Players League, the Federal League, the first three American Football Leagues, the World Football League, the United States Football League, the XFL, the National Basketball League, the American Basketball Association, and the World Hockey League—or else they merge with the existing league—as in the case of the 19th century American Association, the American League, the All America Football Conference, and the National Basketball League.

The one league that seemed capable of continuing on an independent course was Davis’ American Football League. By 1966, the league was approaching parity with the NFL on the playing field and with a television contract with NBC providing the league with financial security, it could have continued to operate as an independent entity. This was Davis’ intention when he took the reins as commissioner, and he resigned when he learned that the league’s owners had negotiated a merger agreement (and an antitrust exemption from Congress) behind his back.

Had Davis’ had his way in 1966, the major North American sports leagues might not have developed into the monopolies that dominate the sports landscape in the present day.

Davis was also completely indifferent on matters of race, ethnicity, and religion. He was one of the first general managers to draft large number s of players from historically black colleges, and he was the first general manager in the modern era to hire an African-American head coach (Art Shell, 1989) and the first to hire an Hispanic for that position (Tom Flores, 1979).

Wherever Davis has ended up in the hereafter, it is a good bet that he is still using the motto, “Just win, baby” and that he is still scheming for ways to improve the fortunes of his beloved “Raiduhs.”

For what it is worth, the team did win its first game in his absence, a 25-20 triumph over the Houston Texans.

 

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