Boden Visitor A Reminder of Marquette’s Connection to Charles Evans Hughes

This year’s Boden Lecturer, Prof. Thomas Merrill, is the Charles Evans Hughes Professor of Law at the Columbia University Law School.   In addition to providing insight in the fascinating Wisconsin case of Melms v. Pabst, his presence also reminds us of an important connection between the Marquette Law Review and Charles Evans Hughes.

Charles Evans Hughes (1862-1948) was one of the great luminaries of American Law.  He is the only individual to have served two separate stints on the Supreme Court (1911-1916 and 1930-1941, the latter as Chief Justice).  He also served as Secretary of State in the Harding and Coolidge administrations, and he and William Howard Taft are the only two men in American history to have both served on the Supreme Court and have been a major party nominee for president of the United States.  However, unlike Taft, who was elected president  in 1908, Hughes lost the presidential election of 1916 to incumbent Woodrow Wilson, although in terms of electoral votes, it was one of the closest elections in American History.  (Wilson won by an electoral vote margin of 277-254.  Had less than 2,000 Californians switched their votes from Wilson to Hughes, Hughes would have become the 29th president of the United States.)

Hughes’ connection to Marquette came shortly after the 1916 election.  Although Woodrow Wilson ran for re-election with the slogan “He kept us out of war”[World War I], barely a month after the beginning of his second term, the U.S. declared war against Germany and the other Axis powers.  The declaration of war led to a mobilization of the American economy under the direction of the national government that was without precedent in American history, and at least some observers questioned the constitutionality of the actions of the Wilson Administration and Congress.

By the summer of 1917, Hughes had returned to the private practice of law in New York City, but he quickly came to the defense of the policies of his former rival.  In an address entitled “War Powers under the Constitution,” delivered to the American Bar Association at its annual meeting on September 5, 1917, Hughes endorsed the broad interpretation of presidential power embraced by President Wilson.  The address was widely hailed by those who supported the American war effort and thousands of copies of the address were distributed to newspapers and other groups by the ABA.

The address was also published as the lead article in Volume 2, Issue 1 of the Marquette Law Review, which appeared only a few months after the address was first delivered. The law review had been founded only the year before, and the journal received a major boost in credibility and visibility with the presence of Hughes already famous address in what was only its third issue.

As the Law Review itself noted at the opening of the issue, “The Marquette Law Review starts its second year as a legal publication with a great deal more confidence than it did the previous year.”  Being able to attract contributors of the stature of Charles Evans Hughes was indeed a reason to feel confident.

How it was that the Marquette Law Review acquired the rights to be the only law review to publish Hughes’ address is not clear.  The Review itself revealed no such information, although in an editorial it did thank Hughes for granting it permission to publish the address.  None of Hughes’ biographers make any reference to a Marquette connection; however, one is tempted to speculate that the connection came through faculty member Carl Rix, who was the law review’s faculty adviser in 1917, and who was an active member (and a future president) of the American Bar Association.

While Rix may be the connection, he did not attend the 1917 ABA meeting which was held in Saratoga Springs, New York.  In fact, that year only two lawyers from Milwaukee, Edward Fairchild and W. A. Hayes, attended the annual meeting , and neither had any connection to the Marquette Law School.

It may simply have been that some enterprising member of the law review staff came up with the idea of contacting Hughes and offering to publish his address.

In any event, its publication brought the law review a great deal of attention, and forever established a linkage between Marquette and Charles Evans Hughes.

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Best of the Blogs: Clerkship Edition

This week, two posts on federal judicial clerkships particularly caught my eye.  First, at Concurring Opinions, David Hoffman reported on the “quickly unraveling clerkship market.”  Under the “Federal Judges Law Clerk Hiring Plan,” law schools are not supposed to send supporting materials for student clerkship applicants, and judges are not supposed to interview student applicants, before September of the students’ third year.  This is intended to stop a race to the bottom among the judges, who might otherwise move their hiring processes ever earlier in order to snag the most promising clerkship candidates.  (When I was a law student in the mid-1990’s, the norm was hiring midway through the 2L year.  This seemed truly absurd at my law school because the first semester was ungraded, and third-semester grades were not yet available when clerks were hired; judges were thus selecting clerks based on only a single semester of grades.)

According to Hoffman, the “dam is about to burst,” as more and more judges and law schools are violating or circumventing the Plan.  I was particularly intrigued by his observation that judges are circumventing the Plan by hiring practicing lawyers instead of law students.  This is certainly nothing new — I had several classmates who moved from practice to clerkship and back again over our first few years out of school — but I wonder if it has become more common in response to restrictions on hiring law students.

I also wonder if judges tend to get better clerks when they hire practitioners.  

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An apostrophic dilemma

A punctuation debate made the National Law Journal this week.  The current Supreme Court reporter of decisions, Frank Wagner, is retiring at the end of this month.  His NLJ interview included the following discussion of differences of opinion among Supreme Court Justices regarding the use of apostrophes with plural possessives.

I wouldn’t call it a “disagreement,” just a difference in preferences. And I doubt it needs to be resolved, at least at the present. When I came to the Court in 1987, the prevailing rule for a regular plural possessive was simply to add an apostrophe after the word’s final “s.” For example, “Congress’.” Over the years, however, four justices informed my office they preferred to add another “s” following the word’s final s-apostrophe — e.g., “Congress’s” — albeit each in slightly differing circumstances. The justices are all highly capable legal writers committed to maintaining their own individual writing styles. Thus, while we try to maintain a high degree of consistency as to style in the U.S. Reports, the Reporter’s Office has always kept a list, and has attempted to assure the incorporation, of each justice’s individual style preferences in his or her opinions. I have monitored the plural-possessives situation over the years, but because a majority of the Court has always continued to follow the original prevailing rule — which I prefer — I have never felt the need to poll the Court to try to achieve common ground. There seems even less reason to do so now, since only three of the four dissenters from the prevailing view are still on the Court.

As Legal Writing Prof blog points out, this interview should demonstrate to students that they must be prepared for grammar and punctuation sticklers at all levels.

My own view on this particular punctuation dilemma is that if you know the alternatives well enough to debate them intelligently, whichever one you prefer is fine by me.  You will usually be correct by paying attention to whether you pronounce an additional -s sound, or not, at the end of the word.

(Note: It is somewhat confusing that the example Wagner gives regarding a “plural possessive” was written as a singular possessive.  I.e., “Congresses” (not Congress) is the plural of Congress.)

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