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

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.

Continue ReadingMarquette Law School at 100: Reconsidering the Law School’s Early Decades

The Long March

In November, 1868, the newly freed slaves in South Carolina turned out to vote in the first presidential election they had ever been allowed to participate in. It was a momentous occasion; hundreds of thousands of persons who had been deprived of their rights for centuries were now finally able to enjoy all of the privileges of citizenship, including the right of suffrage. Voting in the 1860s meant travelling long distances to the county seat to cast a ballot, often requiring an overnight stay; it was an arduous process, but they were eager to make the attempt.

But many in 1868 found that they had made the trip for nothing. Armed militias of whites, determined to prevent blacks from voting, arose all across the South, particularly in South Carolina. Acting at the direction of Democratic party leaders, these bands of vigilantes, sometimes calling themselves Ku Klux Klans, confiscated Republican ballots, threatened prospective voters, and assassinated Republican candidates for office. On the two days of the November election, hundreds of armed whites rode all over upcountry South Carolina, surrounding polling stations and preventing blacks from entering. The tactic was a success; blacks were denied the right to vote in several South Carolina counties, and the local Democratic ticket was elected by large majorities in all of them.

And so, it is a measure of the distance we have come in 140 years, that yesterday an African-American man was elected as President of the United States, on the Democratic Party ticket, in an election that was almost entirely peaceful.

Continue ReadingThe Long March