Marquette Law School at 100: Reconsidering the Law School’s Early Decades

The Marquette University Law School came into being in 1908 when Marquette University acquired the propriety Milwaukee Law School and a recently established competitor known somewhat grandiosely as the Milwaukee University Law School. (Milwaukee University consisted only of its law school, and the school had only ten students.) These acquisitions were part of a larger project which converted Marquette from a tiny undergraduate college to a full-fledged university.

To mark the 100th anniversary of these events, the Marquette University Law School has sponsored a series of symposia this fall focusing on various aspects of the history of the Law School. The first two sessions, focusing on the Milwaukee Law School and the first quarter century of the Marquette University Law School featured the research of historians Tom Jablonsky, Joseph Ranney, and Gordon Hylton. The third, fourth, and fifth sessions featured former students from different eras of the Law School who eventually entered law teaching as a career. (These included Jim Ghiardi ’42; Frank DeGuire ’60, Jack Kircher ’63, Michael Zimmer ’67, Chuck Clausen ’70, Christine Wiseman ’72, Janine Geske ’75, Tom Hammer ’75, and Phoebe Williams ’81.) The final session, scheduled for November 18, will feature the perspectives of three faculty members who did not attend the Law School but who have been members of the faculty since the 1980’s: Judi McMullen, Dan Blinka, and Peter Rofes.

The symposium has revealed that the Marquette Law School has a rich, complicated history that is largely unknown to most of its current faculty and students. (In this regard, one suspects that Marquette is typical of most American law schools.) Moreover, the symposium has revealed that many of the frequently repeated statements about the history of the Law School — particularly in regard to its formative era — are not quite accurate.

For example, the symposium has revealed that the most important figure in the history of the Law School is almost certainly former Dean Max Schoetz (pictured above), who was dean of the Law School from 1916 to 1927.

There is little recognition of Schoetz’s accomplishments in the Law School today, and those who know about him primarily know that he was killed in a tragic street car accident on the way to the University Commencement ceremony in 1927. In fact, it was Shoetz who converted the Marquette Law School from what was essentially a traditional night law school with a day division into a modern law school. It was Schoetz who established the case method as the primary means of instruction at the Law School; it was under Schoetz’s direction that the Marquette Law Review was created; it was Schoetz who successfully defended Marquette against an effort to expel it from the Association of American Law Schools and who in fact restored Marquette to good standing in that organization; it was Schoetz who secured ABA accreditation for the Law School after it was initially denied that status; it was Schoetz who first installed a prerequisite of college attendance at the Law School; and it was Schoetz who pulled the plug on the Law School’s evening division in 1924.

Moreover, Marquette was much less “Catholic” in its early history than is commonly assumed. While there was always a Jesuit presence in the Law School in the form of the rector, a priest appointed by the president to be part of the Law School administration, none of the original faculty members of the Law School were Roman Catholics. (All were Protestants of one stripe or another.) Although Max Schoetz was Catholic, during his deanship he went out of his way to emphasize that while Marquette University was a Catholic university, the Law School was a non-denominational institution. Schoetz, for example, refused to cancel classes on the Catholic Holy Days of Obligation even though classes were cancelled on those days by other branches of the University, and he saw that these views were published in the pages of the Marquette Law Review. There is evidence that the Law School did become more Catholic in the 1930’s, particularly after the installation of Francis Xavier Swietlik as dean in 1932. Swietlik’s entire education had been provided by the Jesuits — he was a graduate of both Marquette’s college and law school — and he appears to have been somewhat less “ecumenical” than his predecessors Schoetz and Clayton Williams (Schoetz’s former law partner, who was a Quaker). However, under Swietlik, students were still admitted without regard to religion.

Finally, it is often said that Marquette provided an opportunity to attend law school for Jews, Catholics, and African-Americans who otherwise would not have been able to attend. This, it turns out, is only partly true. Milwaukee was an extraordinarily diverse city in the early twentieth century, and its foreign-born population as a percentage of the whole exceeded that of New York City. From the very beginning the Milwaukee Law School accepted anyone who applied for admission, regardless of race, gender, religion, or ethnicity (or prior education, for that matter). However, the same was true for the University of Wisconsin and most of the law schools in Chicago. Although the University of Wisconsin student body was overwhelmingly native born and members of its faculty occasionally made “anti-immigrant” remarks, there is no evidence that any student was ever denied admission to the University of Wisconsin Law School on the basis of race, religion, gender, or ethnicity. The problem for most ethnic Milwaukeeans was the cost of relocating to Madison, not the institution’s discriminatory admissions policies. The Milwaukee Law School, and later the Marquette Law School, provided an opportunity for those living in Milwaukee to study law school in a relatively inexpensive context.

Moreover, the reforms instituted by Dean Schoetz in the late 1910’s and early 1920’s that made the Law School into a mainstream academic law school actually had the effect of reducing access to law school for Milwaukeeans of limited means and in that sense made the Law School less egalitarian. While everyone had been welcome at the Milwaukee Law School as late as 1907, by the early 1920’s, the Marquette Law School was open only to those who had sufficient resources not just to have graduated from high school, but also to have attended first one year, and then two years, of college. This was true even though this pre-law school education was not a prerequisite for admission to the bar in Wisconsin. In contrast, most of the city law schools in Chicago (particularly Chicago-Kent and John Marshall) retained their open admission policies well into the 1920’s.

Podcasts of all the symposium sessions are available here.

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Appreciating Our Professors: Professors Whitebread & Bergin

Because most law professors do not attend graduate school in law, new law professors have to rely on their own memories of law school for models of how to teach. As a graduate student at Harvard in the late 1970’s I actually enrolled in an LLM course entitled Preparing for Law Teaching, which was taught by Al Sachs, then the dean of Harvard Law School. Every week a different distinguished Harvard Law Professor addressed the class on his -– there were very few “hers” at HLS in 1979 and none spoke to our class -– views on legal education and how one ought to teach as a law professor.

However, when I began law teaching eight years later, I found myself relying not so much on this class, but on my own law student experience at the University of Virginia in the mid-1970’s. I did not particularly enjoy law school except for the classes in legal history, but I did find two professors particularly engaging. The two were Tom Bergin, from whom I had a year-long first year course in Property, and Charles Whitebread (pictured above), whom I had for upper-level courses in Trusts & Estates and Criminal Procedure.

Both were energetic instructors who infused their classes with a great deal of humor and commentary on the human condition. I think some of my classmates found Bergin to be a little too laconic and a tad vague -– Bergin was more interested in the sources of property rights than he was in the black letter rules of real property, and he did spend the first two weeks of the semester on Pierson v. Post, which was a case not included in our casebook -– but I and many other found his presentations exhilerating and looked forward to every class. Charles Whitebread was a consummate showman who was beloved by all of his students, and through his work with BAR/BRI became a nationally famous lecturer. His death this fall -– ironically just before a visit to Marquette –- was mourned by the entire world of legal education.

Although I have ended up teaching Property and Trusts and Estates most years, I am confident that I would have modelled my teaching on Bergin and Whitebread regardless of what I ended up teaching. As it turned out, they provided me with a treasure trove of property and T&E jokes, obscure legal references, and faux harangues that I have been able to draw upon in my own classes for more than twenty years.

Thomas Bergin. This is actually the grandfather of the Tom Bergin I had for Property. Both men had strong ties to Yale, and I am sure that Prof. Bergin would approve of this substitution.

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