The Unfortunately Forgotten Vernon X. Miller

Who was the first Marquette University law professor to have clerked for a justice on the United States Supreme Court?  (Hint: the answer is not current dean Joseph Kearney.)  Who was the first, and only, Marquette law professor ever elected president of the Association of American Law Schools?  Who was the only Marquette Law Professor to have studied at Yale Law School during the heyday of legal realism and to be described by legendary Yale law professor Myres McDougal as a “confirmed American legal realist”?  (Hint:  Not David Papke.)  Who was the second Marquette law professor to become dean of the law school at Catholic University in Washington, D.C.?  (Hint:  John McDill Fox was the first.)  And finally, who was the first Marquette law professor to have been widely recognized as a leading national figure in the field of torts? (Hint:  Jim Ghiardi was the second.)

The answer to all of these questions is, of course, Vernon X. Miller.

Miller was born in 1902 in St. Paul, Minnesota.  He attended college and law school at the University of Minnesota where he earned both a bachelor’s degree (1923) and a law degree (1925), as well as membership in Phi Beta Kappa and Order of the Coif.  He also served as editor-in-chief of the Minnesota Law Review.

After law school, Miller clerked for Minnesota-native (and fellow Roman Catholic) Pierce Butler of the United States Supreme Court.  After his clerkship, he returned to the Twin Cities where he worked for the Minnesota Crime Commission and taught as a law professor at St. Thomas College (1926-28).  He then spent a post-graduate year at Yale Law School during the heyday of the legal realism movement.  (At Yale, he overlapped as a fellow with the above-mentioned McDougal and they remained friends for the rest of their lives.)  As a graduate law student, he earned a perfect 4.0 grade point average and received a J. S. D. degree in 1929.

After receiving his Yale degree, Miller returned to teaching at St. Thomas for one year and then practiced law with the Minneapolis firm of Rockwood & Mitchell.  In 1930, he joined the faculty of the University of Oregon as an associate professor of law, but he remained at Oregon for only one year, leaving in the fall of 1931 to join the Marquette Law School faculty as a full professor.

At the time of his appointment, the Marquette Law School was led by Dean Clifton Williams, who had assumed the deanship in 1927, following the tragic death of his friend and law partner, Dean Max Shoetz.  The AALS Directory of Law Teachers for 1937 lists Miller as a member of a 15-man law faculty, although only a handful of the group taught law full-time.  Over the next seven years, Miller taught a wide array of courses, including Torts, Bills and Notes, Conflicts of Law, Agency, Personal Property, Real Property, Equity, Introduction to the Study of Law, Corporations, Damages, Insurance, Partnership, Common Law Pleading, Sales, Securities, Creditor’s Rights, and Corporate Reorganization.

Miller left Marquette after the 1937-1938 academic year to join the faculty at Loyola of New Orleans.  The reason for his departure does not appear to have been recorded.  He was replaced on the faculty by Otto Reis, a Harvard Law School graduate who had previous taught for a number of years at Creighton University.  (Miller’s departure was noted in the 1939 Hilltop, the university yearbook, a publication that normally did not provide much coverage of the law faculty.)  Whether or not his departure involved his relationship with new dean Francis Swietlik is not clear, although both major scholarly figures on the faculty, Miller and Carl Zollman, both departed at the end of the 1930’s, and issues with Swietlik seemed to have clearly affected Zollman’s decision to step down from the faculty.

Miller remained at Loyola-New Orleans for 13 years, serving as dean from 1945-1951.  Following his time at Loyola, he moved to the University of San Francisco, where he was dean of the law school from 1951-1954, and from San Francisco, he moved to Washington D.C.’s Catholic University Law School.  At Catholic, he served as Dean until 1968, and became widely recognized as a leading figure in American legal education.  He stepped down as dean in 1968, but he remained on the Catholic faculty until 1972.  His final year of full-time teaching was spent as a visiting professor at McGeorge Law School in California in 1972-1973. After his retirement, he continued to teach at Catholic as an emeritus professor until 1982.

Miller authored two books on Tort Law and many articles on topics related to law and legal education.  He was particularly prolific when it came to legal issues involving trains.  He was also an avid reader of lawyer related fiction and a great baseball fan.

In addition to serving on a wide array of public commissions, Miller served as Secretary-Treasurer of the Association of American Law Schools in 1962 and 1963, and in 1965, he was the president of that organization.  He was also a long-time member of the American Bar Association’s Committee on Legal Education and Admission to the Bar.

Miller died at age 83, at his home in Maryland in February, 1986, nearly a half century after his time at Marquette.  His papers currently reside at the University of Illinois, but they unfortunately contain virtually nothing about his Marquette years.

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What Has Become of All the Native American Law Students?

Between 1990 and 2000, slightly more than 2,600 self-identified Native Americans graduated from ABA-accredited law schools. As a consequence, one might have expected the number of Native-American lawyers in the United States would have increased by about 2000 or so by the end of that decade. (The increase would be less than 2,600, since some of the Native Americans practicing in 1990 would have died or left the profession.) Shockingly, according to the United States Census, the actual increase in the number of Indian and Native-Alaskan lawyers in the United States was only 228, from 1502 to 1730.

So what happened to most of the Native-American law school graduates in the 1990’s? Did they fail the bar examination? Did they decide not to practice law? Did they leave the country? Or, were they not really Native Americans after all?

The answer appears to be the latter. A large number of law students in the 1990’s, who were not actually Native American, reported themselves as Indians or Eskimos on their law school applications and in the materials they filed with the Law School Admission Council (LSAC).

Was this simply a case of students willing to lie about their identity in hopes of receiving special treatment by law school admissions committees, or is there another explanation?

Part of the problem is that many Americans think of Native American as an ethnic category, rather than a citizenship status. Furthermore, it is apparently understood to be an ethnic classification that still follows the “one drop rule,” so that any person with a Native-American ancestor is a Native American. While certain types of racial ancestry carried with them negative stigmas and were usually denied, if possible, most white Americans seem happy to boast about their Indian ancestry, especially if the ancestor was a grandparent, or some more distant ancestor.

As a legal matter, these assumptions are completely without foundation. In Morton v. Mancari, 417 U.S. 535 (1974), the United States Supreme Court confirmed that Native-American status was not a purely racial matter, but was derived from membership in a tribe recognized by the federal government. Moreover, at least since the Indian Reorganization Act of 1934, 48 Stat. 984 (now 25 U.S.C. §§ 461-79 (1983)), authority to determine tribal membership was vested exclusively in the federally-recognized tribes themselves.

In other words, the only people who are Native American are those whose status is recognized by their tribe. All members of recognized tribes have Tribal Identification Numbers (which are similar to Social Security Numbers and are sometimes referred to as registration numbers).

Native American status is, therefore, a concrete matter of tribal citizenship and not an amorphous racial classification. Consequently, a law student without a Tribal Identification Number is technically not a Native American, no matter what her or his ancestry may be.

The law school totals reported by the American Bar Association are based on self-reported ethnicity claims filed at the time of application to law school. The Census totals, in contrast, are based on a more rigorous definition of Native American.

Whether or not this same pattern was duplicated in the first decade of the 21st century is not yet clear, as the United States Census Bureau has not yet released its figures for the number of Native-American lawyers in 2010 (or, for that matter, for any racial, ethnic, or citizenship group). However, signs point to the continuation of the same phenomenon.

According to American Bar Association statistics, obtained from the Law School Admission Council and the law schools, there were 3332 Native-American third-year law students enrolled in ABA-accredited law schools between the 2000-01 and 2009-10 academic years. While a few of these students may have failed to graduate or failed to pass the bar examination, their numbers suggest that the number of Native-American lawyers in the United States should have at least doubled during the past decade, and there is little reason at this time to believe that actually happened.

Native-American lawyer groups have been aware of this discrepancy for some time, and they have expressed anger at what they believe has been the unwarranted assertion of Native-American status by law school applicants who have no basis for such a claim, and at what they see as an unjustified willingness of law schools to accept such claims at face value. Even today, only a handful of law schools—Harvard is one—ask students that claim Native-American status to name the tribe with which they claim affiliation.

(For reporting purposes the American Bar Association counts “Native Americans” as part of the category of “minority law students,” and for the past three or four decades all law schools have been under pressure to admit more minority students. To achieve a more diverse student body, most law schools will accept minority students with lower college grades or LSAT scores than normally expected of admitted students. Consequently, applicants who can claim to be a minority student have a strategic advantage when it comes to law school admissions.)

Concern that numbers inflated by the presence of pseudo-Native Americans were masking the fact that very few real Native Americans were attending law school in the United States, the leading Indian bar association finally decided to take action. On April 8, 2008, the National Native American Bar Association (NNABA) adopted a resolution denouncing the fraudulent self-identification of law school applicants as Native Americans.

The NNABA also expressed the belief that many of those who claimed to be Native Americans not only lacked a formal tribal affiliation but lacked any Native-American heritage whatsoever. As a solution, it called upon the LSAC to require law school applicants claiming Native-American status to list their tribal affiliation and Tribal Identification Number when they register with the LSAC as part of the application process.

After publicizing its claims in a number of different venues, in late 2010 and early 2011, the NNABA appealed directly to the American Bar Association’s House of Delegates and Committee on Legal Education and Admission to the Bar (of which the writer is a member) to endorse its proposals.

The efforts were successful, and on Monday, August 8, 2011, the ABA’s House of Delegates approved a resolution urging the Law School Admissions Council and ABA-approved law schools to require additional information from people who indicate on their registration for the Law School Admission Test and law school applications that they are Native American; specifically, they are to supply information about their tribal citizenship, tribal affiliation or their enrollment number. Applicants who don’t belong to a tribe recognized by the government but who wish to claim Native American status would have to provide a detailed “heritage statement.”

The ABA resolution has no binding effect, so it is still an open question as to how the LSAC and the law schools will respond to what NNABA president-elect Mary Smith refers to as “an issue of ethics and professional responsibility.”

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The 100th Anniversary of the Law School’s First Real Graduation

Although the fact went largely unnoticed, the May 2011 Law School Commencement marked the centennial anniversary of the first real law degrees awarded by Marquette University.  In June of 1911, nine students who had entered the initial full-time law program offered by Marquette University in the fall of 1908 received their bachelor of laws diplomas at the annual Marquette Commencement ceremony.

The subject of early Marquette law degrees is complicated by the decision of the University to award Marquette Law degrees to all the former students of the Milwaukee Law School (which Marquette acquired in 1908) who had passed the Wisconsin bar examination.  The decision was apparently made at the last minute, and few documents pertaining to the decision survive.  (It is, for example, hardly mentioned in the Trustee minutes.)  Apparently the decision was also intended to apply to former Milwaukee Law School students who were enrolled at the time of the “merger” and who continued on in the new night program at Marquette.

As a consequence, more than 80 law degrees were awarded in 1908, before the new law school actually began operations, and additional degrees to former Milwaukee Law School students were awarded at the next several commencements.  This decision later came back to haunt the law school, as critics (especially faculty members of the University of Wisconsin Law School) later accused the school of “selling diplomas.”  (Degrees were not automatically awarded to former Milwaukee Law School students who passed the bar examination; they first had to apply to Marquette for a degree and pay a $5 diploma fee.)  In response, the degrees awarded to the Milwaukee Law School students were soon re-labeled “honorary degrees.”

However, by the spring of 1911, there were students who had completed all of the requirements of the new full-time, day-only law program at Marquette.  A class picture of these students now hangs in the hallway of the Dean’s suite in Eckstein Hall.  (The composite photograph actually shows 11 members of the graduating class, when in fact only 9 actually graduated.  The photograph was apparently prepared before the end of the Spring 1911 semester and circumstances apparently kept two of the 11 from graduating.  Things like that do happen.)

The 1911 Commencement was held at 8 p.m. on the evening of June 21, 1911, in the Pabst Theater.  Music was provided by the Marquette University Orchestra and the Marquette University Mandolin Club, and the event was presided over by Marquette President James McCabe, S.J.

The 1911 Commencement had a distinctively “legal” flavor (in part because the Marquette Medical College and its affiliated programs held their own separate graduation ceremony).  The Commencement address was delivered by Patrick H. O’Donnell, a prominent Chicago lawyer and graduate of Georgetown law school who was instrumental in the creation of the law school at Loyola of Chicago the following year.

The only honorary doctorate awarded that day was a Doctorate of Laws degree awarded to the Rev. Antoine Ivan Rezek, the author of the recently published “The History of the Diocese of Sault Ste. Marie and Marquette.”  (Why Father Rezek was awarded a Doctor of Laws degree rather than a Doctor of Arts is not clear.)

Of the 29 actual degrees awarded, 18 were in the field of law.  Of the non-law students, Luis Rivera, a citizen of the Philippines, received a Master of Arts degree.  Nine students received the Bachelor of Arts degree while a tenth received the degree of Bachelor of Science.

As  mentioned above, nine graduates were awarded the Bachelor of Laws degree for work done in the day division, while an additional nine were awarded “the Honorary Degree of  Bachelor of Laws” for work done either at the Milwaukee Law School or in the Marquette evening program and for passing the Wisconsin bar examination.  Because the next administration of the bar examination was not until July, none of those students who had finished the night course in June of 1911 were eligible for degrees.

(In 1911, any person who had studied law for three years was eligible to take the Wisconsin bar examination regardless of whether or not they had a law degree, and the diploma privilege would not be extended to Marquette degree holders for another two decades.)

Only one of the first nine “true” graduates—Albert O’Melia—graduated with honors, but there was obviously a great honor simply in being a member of the inaugural graduating class.  A more detailed account of the law school experiences of the Class of 1911 can be found in my earlier blog post entitled “The First Joe Tierney’s Marquette Legal Education.”

[Update: a reference in the fourth paragraph was corrected to read “1911” instead of “2011.”]

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