Two Models of Sociolegal Change

My article, Constitutional Safety Valve: The Privileges or Immunities Clause and Status Regimes in a Federalist System (previously mentioned here and commented on here), is finally out in the current issue of the Alabama Law Review. (Pre-publication version here.) This article represents the end point of a fairly long process that began with a seminar paper in law school. In 1996, I was impressed with the tenor of the debate in Congress over the Defense of Marriage Act; there were several statements to the effect that failing to wall off the status of legally married same-sex couples would lead to the downfall of society. It reminded me strongly of the rhetoric in Dred Scott that recognition of Scott’s citizenship would have calamitous effects. As I dug into it, I found even stronger parallels in antebellum debates in Congress over travelling black Northern citizens in Southern states, and the extension of slavery to the territories. Congress seemed, then as now, appeared alarmed at the prospect of a state-recognized social status to destabilize the societies of states that didn’t recognize that status, merely by virtue of individuals with that status travelling.

The antebellum debates were ultimately resolved by the Fourteenth Amendment, and in particular the Privileges or Immunities Clause. So I wrote a paper about how the Privileges or Immunities Clause had a forgotten purpose that would mediate an entrenched conflict between states over an inconsistently codified sociolegal status. Of course, that argument will have the most contemporary relevance if such a conflict in fact develops. But it’s not at all clear that we are heading that way. There’s another model of sociolegal change when it comes to anxiety over travellers bearing destabilizing statuses: divorce.

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Look to Your Left, Then Look to Your Right: Marquette University Law School, Fall 1919

At all most every law school founded before 1960, a story is told about a past dean who addressed incoming classes by telling them: “Look to your left and then to your right, and three years from now, only one of you will still be here.”  The softer version of the story ended “and only two of you will still be here.”

The story is probably apocryphal in its origins, although it was certainly used by later deans to emphasize the difficulty of legal study.  Today, the story is usually told to illustrate how lax legal education has become in the modern era.

To the extent that that this story reflects past reality, it is actually a commentary on how easy it was to get into most American law schools before the great surge in applications that began around 1970.  Even Harvard Law School did not reject a qualified applicant until 1939 (although it is true that Harvard had stiffer entrance requirements than most law schools in the first half of the twentieth century.)

Most law schools accepted all applicants who met their minimum entry requirements and then let the chips fall.  Those who could handle the work continued to graduation.  Those who couldn’t either flunked out or dropped out.

History does not record whether Dean Max Schoetz delivered the “look to your left” speech when he greeted the entering class at the Marquette Law School in the fall of 1919.  But if it did, and had he used the softer version of the story, his prediction would have been borne out by subsequent events.  There were 92 students enrolled in the first post-World War I day division entering class, and only 66 made it to the second year.  One of those who did not was Milwaukee native Pat O’Brien, who later became famous as a Hollywood actor (e.g., The Front Page, The Knute Rockne Story).

Whether O’Brien and the other 26 students who didn’t continue on for a second year flunked out or merely decided to pursue a different path in life is difficult to determine.  To remain eligible to continue, students had to pass more than half their courses, and 70 constituted a passing grade.

Admission requirements for the law school in 1919 were fairly modest.  Ordinarily a student had to be a high school graduate and have attended college for one year.  However, if an applicant was a high school graduate who had not yet attended college, he or she was allowed to enroll in a four-year program at the law school in which most second-year courses were taken in the college—essentially to meet the one year of college requirement.  This turned out to be a popular alternative, particularly for veterans like O’Brien who were anxious to get on with their careers.  Twenty-nine of the 66 students who entered the day program in the fall of 1919 and continued on for a second year were admitted under this option.  Students who were not high school graduates could opt to take a special examination, and if they passed it they were admitted as well.  Anyone could enroll in the four-year night program whether or not they had finished high school, and 63 individuals did.  The total first year enrollment of 155 in the fall of 1919 was the largest in the school’s history.

Under a recent change necessitated by Association of American Law School guidelines, night students were not eligible to receive a law degree from Marquette beginning with the 1919-1920 academic year, but their attendance did qualify them to take the Wisconsin bar exam.  The diploma privilege had not yet been extended to Marquette, so all its law students were required to pass the bar exam before they could begin law practice.  Wisconsin also required that applicants for admission to the bar have completed a high school course or its equivalent, and a few evening students were attending law school and high school at the same time.

Only four students in the day division and only one in the night group were listed as holding college degrees prior to beginning law school.  Most of the students, day or night, hailed from Wisconsin.  Only 11 of 92 first-year day students are listed in the Law School Bulletin as being from outside Wisconsin, and except for a single student from Montana, the others were all from the Midwest: Illinois (3), Iowa (3), Minnesota (2), and Michigan (2).  Only three of the 92 were female.

Ironically, the night division (known as the “Owls”) was geographically a slightly more diverse group.   Out-of-state students accounted for 13 percent of the night class, just ahead of the 12 percent for the day division.  While there were also students from Minnesota (2), the night class featured individual students from the more distant venues of Ohio, South Dakota, Montana, New Hampshire, Virginia, and the Philippines.  Two of the evening students were female and one, Edward Snyder, was a medical doctor.

Attrition was even higher among the ranks of the night class with only 39 of the 63 night students returning for a second year.  Among those not returning were most of the out-of-state students and Dr. Snyder.

In the aftermath of World War I, which had disrupted the vocational plans of so many American men, the law school appeared to be reluctant to impose barriers in the way of anyone who wanted to become a lawyer.  However, it did not appear to be willing to carry along students who were unable or unwilling to meet its academic standards.  It is worth remembering, however, that law school education was not a prerequisite for bar admission in Wisconsin (and most states) in the early 1920’s.  Those who left law school were free to enter apprenticeship arrangements and qualify for the bar that way.  (In fact, they could still count their unsuccessful law school year or years toward the state’s three- year “law study” requirement.)

The following is the curriculum in effect for first-year day students during the 1919-1920 academic year.  The number in parentheses is the number of hourly meetings each week for that particular course.

FALL

The Study of Cases (1)

Criminal Law (2)

Criminal Procedure (1)

Contracts I (3)

Torts I (2)

Personal Property (2)

Common Law Pleading I (1)

Natural Law (1)

Total Hours:  13

SPRING

Contracts II (3)

Torts II (2)

Common Law Pleading II (2)

Agency (2)

Equity (2)

Real Property I (1)

Natural Law II (1)

Legal Bibliography (1)

Total Hours: 14.

The Natural Law course was taught by the university president, Rev. Herbert Noonan; Personal Property and Legal Bibliography were taught by Dean Schoetz.

Each course had a written examination at the end of the term, which meant that full-time day-division students took 15 exams during their first year of law school, seven in fall and eight in the spring.  Students in the 4-year program — those who lacked prior college credits — took year-long courses in English and Argumentation in lieu of Contracts I & II, Criminal Procedure, Personal Property, Agency, and Equity.

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Supreme Court Justices Who Have Visited Marquette Law School

United States Supreme Court Justice Antonia Scalia’s appearance as the keynote speaker at the dedication of Eckstein Hall this past September was a great honor for both Marquette University and the Law School.

However, it was by no means the first visit of a United States Supreme Court justice to the law school.  In fact, it was not even Justice Scalia’s first visit.  In 1997, he delivered the annual Hallows Lecture, that year entitled,”A Matter of Interpretation: Federal Courts and the Law.”

The record is not entirely clear when a Supreme Court Justice first visited the law school.

In August of 1909, Justice David Brewer (pictured at the top) came to Milwaukee to address the annual meeting of the Northwestern Life Insurance Company, and while here Brewer almost certainly visited his friend James Jenkins.  The two men had known each other as fellow federal judges for many years, and they had served together on the American Bar Association special committee that drafted the original Canons of Ethics which were promulgated in 1908.  In 1909, Jenkins was, of course, the dean of the Marquette Law School.

On the other hand, in August 1909, the law school was in summer recess—the last classes had been held on June 24, and the 1909-1910 academic year did not begin until September 13.  Moreover, there was no separate law school building in 1909.  The Mackie Mansion would be taken over by the law school in 1910, but prior to that classes were held in Johnston Hall. So it is hard to know if Brewer actually visited the “law school” and if he did, it would have been while classes were not in session.

In August 1912, Marquette sponsored a reception for the Association of American Law Schools which was meeting in Milwaukee in conjunction with the American Bar Association.  Present at the meeting was future Supreme Court Chief Justice Harlan Fiske Stone.  Stone was then the dean of the Columbia Law School, so it seems likely that he would have attended the reception and may have visited the law school as well.  (Future Supreme Court Justice George Sutherland was also a speaker at the 1912 ABA meeting in Milwaukee.)

Later that year President (and future Supreme Court Justice) William Howard Taft visited the Marquette campus during his reelection campaign and likely visited the law school as well.  (At the time the law school was in the Mackie Mansion which was on the site now occupied by Sensenbrenner Hall.)

The first documented visit by a sitting Supreme Court justice to the law school came in 1958 when Justice Tom Clark delivered an address in honor of the law school’s 50th Anniversary.  Clark’s address was entitled, “The Supreme Court as the Protecter [sic] of Liberty Under Law.”  This visit occurred during the deanship of Reynolds Seitz.

Clark was the first of three Warren Court justices to visit the law school between 1958 and 1968. In 1965, William Brennan was the speaker at the annual Law Review banquet, and three years later, William O. Douglas appeared at the ceremony marking the opening of the new law library.

More recently, Chief Justice William Rehnquist was the 1988 Marquette University Commencement speaker.  As mentioned above, Justice Scalia delivered the 1997 Hallows Lecture, and in 2008, retired Justice Sandra Day O’Connor appeared at law school for a Mike Gousha interview.

For now, that appears to be the complete list of Supreme Court justice visits, although it seems possible that other justices may have visited law school between 1912 and 1958, but that records of those visits have not yet surfaced.

For example, Justice Pierce Butler, who was Roman Catholic and who served on the Supreme Court in the 1920’s and 1930’s, regularly passed through Milwaukee on his way from Washington to his home in Minneapolis.  It would be no great surprise to learn that somewhere along the line Justice Butler paid a visit to the law school.

The remarks delivered by several justices on the occasion of their visits to Marquette have been published in the Marquette Law Review.  These include:

Justice Clark  (43 Marq. L. Rev. 11)

Justice Brennan (48 Marq. L. Rev. 437)

Chief Justice Rehnquist (72 Marq. L. Rev. 145)

I owe a special debt of thanks to our alumnus Daniel Suhr for the idea for this post and for his assistance in collecting this information.

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