Not Sleepless, Just Basketball-Less, in Seattle

After forty-one years of playing in Seattle as the Supersonics, the owners of the franchise this season relocated the team, with NBA approval, to Oklahoma City, where it is currently playing as the Oklahoma City Thunder.  Although the city of Seattle is left without an NBA team, public uproar over the move seems to be at a minimum.

In fact, it is now clear, if it weren’t already, that football and baseball occupy a different place in the sports landscape than basketball and hockey.  Nowhere is this more apparent than in the arena of franchise relocation.  When an NFL or MLB team relocates, a movement begins among the representatives of the area losing its team to convince Congress to take away the ability of the teams and leagues to control the location of their franchises.  Sympathetic fans in unaffected cities rally to the cause and Congressional intervention suddenly seems a real possibility.  This happened in the 1960’s and early 1970’s when Milwaukee, Kansas City, Seattle, and Washington, D.C., lost their major league baseball franchises, and it happened in the 1980’s and 90’s when NFL teams in Oakland, Baltimore, Arizona, Cleveland, and Houston moved to new cities offering more lucrative places to play.

In each case, Major League Baseball and the NFL dodged a regulatory bullet, but only because they permitted or arranged for new teams to replace the ones that had abandoned their home cities.  Thus, Milwaukee lost the Braves and got the Brewers; Kansas City lost the Athletics but got the Royals; Seattle lost the Pilots but got the Mariners; Oakland lost the Raiders and then got them back; Baltimore lost the Colts but got the Ravens; St. Louis lost the Cardinals but got the Rams; Cleveland lost the Browns but got the new Browns; and Houston lost the Oilers but got the Texans.  Had the leagues not moved relatively expeditiously to replace the moving franchises, direct Congressional regulation of franchise shifts could well have become a reality.

In contrast, there have been numerous franchise shifts in the NBA and the NHL since 1960’s.

In the NBA, Philadelphia moved to San Francisco; Rochester moved to Philadelphia; St. Louis moved to Atlanta; Buffalo moved to San Diego, which moved to Los Angeles; Cincinnati moved to Kansas City, which moved to Omaha, which moved to Sacramento; San Diego moved to Houston; Charlotte moved to New Orleans; Vancouver moved to Memphis; and now Seattle has moved to Oklahoma City, and no one cares enough to start the ball rolling on congressional hearings, not even the representatives of the cities losing teams.  Why bother?  In the NHL, congressional indifference has been even more profound, as Denver moved to New Jersey; Hartford moved to Raleigh; Quebec to Denver: Winnipeg to Phoenix; and Minneapolis to Dallas.  Some of the abandoned cities in the two leagues got new teams, but that was because it made economic sense to replace them, and not because of any sustained public uproar.

Football and baseball are sports in which American fans are heavily invested, both financially and psychologically.  The same cannot be said for basketball and hockey, even though NBA basketball at least seems to rival the two main sports in overall popularity.  However, fans clearly do not attach themselves to NBA teams (particularly when they do not live in the city in which the team is located) as they do to Major League Baseball and NFL teams.

There are a couple of caveats.  For some reason the strong reaction against relocation does not happen when an NFL teams leaves Los Angeles.  The nation’s second city lost both the Raiders and the Rams, but the protest both in Los Angeles and elsewhere was minimal.  Apparently LA doesn’t need the NFL, although it does serve a useful purpose for current NFL owners, who can always threaten to move their teams to Los Angeles if their current hosts don’t come up with a sufficiently lucrative stadium deal.  To lesser extent, the same phenomenon was true for baseball in Washington.  Washington lost its traditional team in 1960 to the Twin Cities, but it immediately got a replacement team, which the city lost to Dallas eleven years later.  In the early 70’s a number of Members of Congress threatened to revoke Major League Baseball’s antitrust exemption if a team were not returned to Washington.  Although there was an abortive effort to transfer the San Diego Padres to Washington in 1974, that plan fell through, and when nothing else was done, the furor subsided, largely because no one in Washington was going to games anyway.

The other caveat is that really no one cares when the team that moves is a Canadian team.  Canadians may care, but Canadians have especially little influence over the U.S. Congress.  In recent years, Canada has lost two of its eight NHL teams; one of its two NBA teams; and one of its two Major League Baseball teams.  Neither the U.S. government nor, for that matter, the Canadian government has done anything to try to reverse the flow of teams to the South.

But just wait until Mark Attanasio decides to move the Brewers to Sacramento or Las Vegas. That is when we will see Congress spring back into action.  The Brewers may be a poor team, but there are those who love them.

Continue ReadingNot Sleepless, Just Basketball-Less, in Seattle

The View From the Middle

Students and faculty of the Marquette Law School in the early years of the twenty-first century have the benefit of an affiliation with an institution that most outside observers seem to feel is right smack dab in the middle of the law school pool.  Our US News & World Report overall rating is almost exactly in the middle of the pack, and the American Bar Association reports that we are the 90th most selective of the 184 ABA-approved law schools in the United States. Our current median LSAT score (157) is exactly the median LSAT score for all students enrolled in ABA-accredited law schools, and our median GPA is almost exactly the national median as well. In the peer ratings collected by the US News survey, our score (2.3) is exactly the median for all schools, as is our ranking by judges and lawyers (2.8). (Although our judge and lawyer ranking is higher, it is, like our ranking by law professors, exactly at the median. Apparently, lawyers and judges generally think more highly of law schools than do law professors.)

While no one really likes being exactly in the middle — I also think we are “underrated” — it does offer an interesting perspective on contemporary legal education, particularly in regard to who is studying law and who is teaching law at this point in the history of American legal education. Figuratively speaking, half of the schools are above us and half below us, and all are within sight.

I have had the good fortune to attend two law schools as a student and to teach at five (Marquette, Chicago-Kent, Washington University, Washington & Lee, and the University of Virginia). All five schools at which I have taught are usually ranked among the top half of American law schools, and three of them are usually closer to the top than the middle. My overwhelming impression is that the law school experience is essentially the same at all five schools. The curriculums are virtually identical, and the quality of teaching at all five is equally high. I found students at the University of Virginia to be more academically sophisticated than students at the other four, but I found that the experience of teaching at the other four was quite similar. The biggest differences lie in the placement opportunities, which do vary considerably from school to school.

I would be interested to hear the thoughts of others — students, faculty, and alumni — about the significance of our position in the middle.

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Marquette Law School at 100: Remembering Carl Zollman

Although now largely forgotten at Marquette, Carl Zollman was a prominent American legal scholar of the first half on the twentieth century who spent his entire academic career at this Law School.  Zollman is recognized as the founder of aviation law as an academic discipline, and the case can also be made that he is the founder of sports law as well.  The latter claim is obviously quite appropriate given the Marquette Law School’s current prominence in the field of sports law.

Born in Wellsville, New York, in 1879, Zollman was educated to be a minister in the Missouri Synod of the Lutheran Church.  He was ordained in 1902 and became a pastor at a small church in Williamsburg, Iowa.  In 1906, he moved to Wisconsin, where his father, also a Lutheran minister, was involved with an enterprise known as the Evangelical Lutheran Colonization Company.  For reasons that are not known, the younger Zollman resigned from the ministry later that year and enrolled in the law program at the University of Wisconsin, just a month or two shy of his twenty-seventh birthday.  He received a law degree from Wisconsin in 1909, and he joined a Madison law firm.

Over the next thirteen years Zollman moved between a variety of law and editorial positions in Madison, Chicago, and Milwaukee, all the while publishing extensively.

Although his first major article (which appeared in the 1910 Columbia Law Review) was on a topic in bankruptcy law, most of his early work was devoted to religion and law.  However, beginning in 1919, his work increasingly focused on aviation law.  In addition to a treatise, American Civil Church Law, published by Columbia University Press in 1917, Zollman placed articles in the leading law journals of that era, including the Columbia Law Review (three articles), the Illinois Law Review, the Michigan Law Review (eight articles), the Yale Law Journal (two articles), and the independent American Law Review (five articles).  As a student, Zollman had argued for the creation of a law review at the University of Wisconsin, and, when that publication finally appeared in 1921, its first volume included an article by Zollman on the law of charities in Wisconsin, another of his specialties.  During the First World War, he also served as a consultant to the United States government’s Bureau of War Trade Intelligence.

Zollman began the practice of law in Milwaukee in 1920, and his scholarly productivity caught the attention of Marquette Law School Dean Max Schoetz.  Schoetz, like Zollman, was a former student of Harry Sanger Richards, the Harvard-educated Dean of the University of Wisconsin Law Department who had brought the case method and the Harvard style of legal education to the Midwest.  Schoetz had begun law school at Madison the year before Zollman, so the two were fellow students for two years.

Schoetz had become dean of the Marquette Law School in 1916, and had been engaged in an effort to purge the school’s old reputation as a part-time urban night law school and turn it into what he styled “the most progressive law school in the Midwest.”  Schoetz was responsible for the creation of the Marquette Law Review and for the establishment of the case method as the primary form of instruction at the Law School.  To shore up the Law School’s standing with the Association of American Law Schools, with which Marquette had had a rocky relationship since it was accepted into the organization in 1912, Schoetz revoked the right of night students to earn law degrees in the late 1910’s and then terminated the night program altogether in 1924 to make sure that Marquette would be an ABA-accredited law school.  When the University authorized the appointment of full-time professorships in law in the late 1910’s and early 1920’s, two of Schoetz’s first appointments were Harvard Law School graduate John McDill Fox and Carl Zollman.

Zollman joined the faculty in January 1923 and initially taught Property, Contracts, Agency, and Bills and Notes.  His scholarly productivity only increased after he abandoned the practice of law, and over the next seventeen years, he prepared new editions of two treatises and published 32 law review articles (many, as was the custom of time, in the Marquette Law Review), 30 book reviews, two book chapters, and six books of his own (including two editions of his pathbreaking 1930 casebook on aviation law and his Aviation Law Hornbook, which for all practical purposes established the field to which they were devoted).  In 1930, the Marquette professor was chosen to preside at the First National Legislative Air Conference, which ultimately led to the adoption of the Civil Aeronautics Act of 1938.

Zollman maintained an office on the third floor of the Law School, which then contained the law library and the Grimmelsman (now Eisenberg) Reading Room.  There were no other offices on the third floor, and Zollman developed a reputation as something of a recluse who preferred to work on his research and writing rather than socialize with students and colleagues. One of Zollman’s last students was our colleague Jim Ghiardi, who had Zollman for Bills and Notes during the 1939-40 academic year.

Zollman departed from the law school somewhat abruptly near the end of that year.  Although his obituary in the Wisconsin Bar Bulletin says that he retired “to devote his time to writing law text books,” the real reasons for his decision to stop teaching are unknown.  (Jim Ghiardi recalls that the reasons were a mystery at the time, and that many students assumed that his departure was the result of a falling out with Dean Francis Swietlik, who had become dean of the Law School in 1932.)

Zollman was only 60 when he resigned from the faculty, and he had married for the first time in 1937.  Whatever his reasons for stepping down, Zollman actually published very little after 1940.  He continued to prepare annual supplements for his treatise, The Law of Banks and Banking, but he published no new law review articles or book reviews or treatises.  In September 1944, he was diagnosed with cancer, and he died in Milwaukee the following May.

As for sports law, Zollman’s final two law review articles, both of which appeared in the Marquette Law Review in 1940, were entitled “Baseball Peonage” and “Injuries From Flying Baseballs to Spectators at Ball Games.”  The first was a study of baseball labor relations which focused on the restrictive nature of Organized Baseball’s reserve system, which Zollman actually thought was reasonable, and the second was an early examination of one of the classic problems in sports law.  The two articles, particularly the first, reflect a detailed knowledge of the structure and history of professional baseball and suggest that Zollman must have been a long-time fan.  While further research is necessary to verify this claim, it appears that Zollman’s two 1940 articles were the first sports law articles (as opposed to case comments) to appear in a university-based law review, hence the claim that Carl Zollman can be counted as the “Father of Sports Law.”

Those who imagine that Marquette was just a “nuts and bolts” law school in its early decades have clearly never heard of Carl Zollman.  A nearly comprehensive bibliography of Carl Zollman’s writings, along with a short biographical sketch can be found in a recent article by Robert Jarvis of the Nova Southeastern Law School.  Prof. Jarvis is, like Zollman, a scholar of both aviation law and sports law.  The article is entitled, “Carl Zollman: Aviation Law Casebook Pioneer,” and it appears in volume 73 of the Journal of Air Law and Commerce.  Prof. Jarvis and I disagree slightly in regard to several of the details of Zollman’s career, particularly in regard to his expertise on the subject of baseball.

Continue ReadingMarquette Law School at 100: Remembering Carl Zollman