Marquette Law School’s Enduring Connection to the Sports Law Industry

As noted in an earlier post, the current issue of Marquette Lawyer magazine contains a profile of the current Marquette Sports Law program and the National Sports Law Institute. What the article fails to note, however, it that the law school’s involvement with the sports industry long pre-dates the founding of the National Sports Law Institute in 1989.

Marquette law students have gone on to careers as major league athletes and coaches; Marquette law graduates helped create the category of sports lawyer, and Marquette law professors have played important roles in the sports industry and in the creation of the academic discipline of sports law. And this was all before the Second World War.

Early in its history, when admission to the law school required less than four years of college, many Marquette law students competed on Marquette varsity sports teams, and a number of these ended up playing in the National Football League—including Green Bay Packer Hall-of-Famer LaVern “Lavvie” Dilweg, and fellow-Packers Larry McGinnis and Biff Taugher—and in the predecessor to the National Basketball League—including Frank Zummach (as a coach) and Ed “Boops” Mullen (as a player). Paul Robeson, who was never officially enrolled in the law school, reportedly studied with a Marquette law professor while playing for the NFL’s Milwaukee Badgers in the 1920’s, before he embarked on his better known careers in music, theater, and politics.

Future Congressman Ralph Metcalfe was a world class sprinter and an Olympic medal winner who also was enrolled in the law school in the 1930’s. And who can forget former Marquette law student and Hollywood actor Pat O’Brien? As a student, O’Brien unsuccessfully sought a spot on the Marquette football squad but later achieved a form of sports immortality by playing the lead role in “The Knute Rockne Story,” the film biography of the great Notre Dame football coach.

Raymond J. Cannon, a 1914 Marquette Law School graduate and a United States Congressman from 1933 to 1939, was arguably the first American lawyer to develop a sports-specific law practice, which he did in the late 1910’s and 1920’s. Cannon, also a star semi-pro baseball pitcher in Wisconsin from 1908-1922, was most famous for representing several of the so-called “Black Sox”–a group of eight Chicago White Sox players permanently expelled from Organized Baseball because of their involvement with efforts to fix the 1919 World Series–in their effort to recover unpaid salary and seek reinstatement.

Sympathetic to the plight of professional baseball players, whose occupational liberty he believed was unfairly restrained by the reserve clause, Cannon also attempted to organize a professional baseball players’ union. Called the National Baseball Players Association, Cannon’s organization was founded in 1922, while he was still much involved with the representation of the Black Sox.

Although many players from both the National and American leagues initially expressed enthusiasm for Cannon’s idea, few joined the new association, and the organization folded in 1924. Cannon’s simultaneous involvement with the Black Sox litigation and his continued representation of several of the group in the early 1920’s probably did not help matters. Most major league baseball players of that era were intimidated by the ruthlessly authoritarian tactics of baseball commissioner, Kenesaw Mountain Landis (a former Marquette Law School lecturer, discussed below), who appeared willing to ban players for life, even on the suspicion of association with gamblers.

After his involvement with the Black Sox cases ended, Cannon continued to represent legendary outfielder Shoeless Joe Jackson on a variety of matters for the remainder of his (Jackson’s) life.

Cannon’s sports-related practice also extended to boxing. In 1918, he began to work with Chicago boxing promoter, Tom Andrews, and did the legal work for a number of championship prize-fights, including Jack Dempsey matches with Fred Fulton, Jess Willard, and the Frenchman Georges Carpentier. In the early 1920’s, Cannon also became Dempsey’s personal lawyer, at a time that the fighter was the heavyweight boxing champion of the world and one of the best known celebrities in the United States. Among other services, Cannon helped Dempsey escape from an unfavorable managerial contract with John J. “John the Barber” Reiser, but his lawyer-client relationship with Dempsey ended later in the decade when he sued Dempsey for $20,000 in unpaid legal fees.

Cannon’s son, Robert C. Cannon, who graduated from the law school in 1941, was also a major figure in American sports. After a career as Milwaukee Circuit Court judge that began shortly after World War II, Cannon, a long time baseball fan, became the legal adviser and de facto director of the Major League Baseball Players Association in 1969, when he was chosen for that position after a national search by the players’ organization. Rather than resign from the bench, which he felt he would be required to do if he took a baseball salary, Cannon served for seven years as an active, but unpaid advisor to the Players Association.

Although Cannon was sometimes criticized as too sympathetic to the interests of the baseball owners to adequately represent the players, he was popular among both players and owners. In 1965, he was seriously considered for the position of Commissioner of Baseball when existing commissioner Ford Frick retired. Cannon eventually lost out to retired Air Force General William Eckert for the Commissioner position, but in 1966, he was offered and accepted the new post as full-time director of the Major League Baseball Players Association at a salary of $150,000. However, shortly after indicating he would be happy to accept the position, Cannon had second thoughts about leaving Milwaukee and his circuit court judgeship, and even though the Players Association offered to move its offices to Chicago, Cannon withdrew his acceptance. Having lost out on their first choice, the Players Association then turned to Marvin Miller. The rest, as they say, is history.

Marquette faculty members were also connected to the sports industry. The above-mentioned Kenesaw Mountain Landis taught at Marquette Law School as a lecturer in 1909 while he was a federal judge in Chicago. (He would not become Commissioner until 12 years later.) When current Commissioner Alvin “Bud” Selig joined the Marquette faculty this year as a Lecturer in Law, he filed a slot held 102 years earlier by his famous predecessor in his day job.

Elmer W. Roller, a 1923 graduate of Marquette Law School and a full-time Marquette law professor in the late 1920’s and 1930’s, suddenly became known to baseball fans all over the United States in 1965 when he almost kept the Milwaukee Braves from leaving town. (The new owners of the Braves had announced at the end of the 1964 season that they planned to be playing in Atlanta, Georgia, as early as 1966.)

As a Milwaukee County Circuit Court Judge, Roller ruled that the team’s planned relocation to Atlanta violated the Wisconsin Antitrust Act in a way that warranted injunctive relief. Roller ordered the National League to keep the Braves in Milwaukee or else replace them with another team. Unfortunately for Brew City baseball fans, Roller was subsequently overruled by the Wisconsin Supreme Court, and that decision was left standing by the United States Supreme Court in 1966.

Finally, the discipline of academic sports law really begins with two articles on the law of sports published in the Marquette Law Review in 1940 by legendary Marquette Law Professor, Carl Zollman. Although articles on the law of sports had been previously published in legal periodicals targeted to practitioners, these were the first two “academic articles” addressing sports law issues to appear in a law-school sponsored law review.

As I wrote in an earlier profile of Zollman:

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.

Given this history, it was entirely appropriate that the National Sports Law Institute was established at the Marquette Law School in 1989. It is too bad that so little of this history is currently acknowledged by the law school or the sports law program. Unfortunately, law schools tend to have short memories.

 

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Remembering Year 2 in Sensenbrenner Hall

As we settle into the second year of Eckstein Hall, it is interesting to look back and try to imagine what it would have been like to have been a student in Sensenbrenner Hall in its second year, 1925-1926.

First of all, the Sensenbrenner Hall of 1925 was quite different from the building that the law school vacated in July of 2010. The original building, known only as the Law Building until the 1950’s and constructed for the princely sum of $200,000, contained 5540 square feet of space (not counting the basement). The building ran for 100 feet along Wisconsin Avenue and for 60 feet along Eleventh Street, but a 10′ by 46′ indention at its southwest corner kept it from being perfectly symmetrical.

Not only was the then-new law building just the front part of current structure, but its interior was also arranged quite differently from the way that we remember it. Its principal components were three classrooms, two courtrooms, a palatial reading room, the library stacks, and a variety of offices.

As one entered the building from W. Wisconsin Avenue, the room on the first floor to one’s immediate right was a lecture hall.

On the left hand side of the hallway were an office and a faculty room/lounge. Beyond the lounge and the northeast lecture hall were four more offices, two on each side, and another lecture hall on the west side of the building.

The east side of the second floor was the moot court room, in which mock cases were tried before “Judge” Dean Schoetz each Thursday during the school year. Opposite it were another office and a jury room. The western half of the floor was divided between a classroom in the northwest corner and the appellate courtroom opposite it on the southwest side of the building.

On the east side of the third floor was found the luxuriously appointed Grimmelsman Memorial Reading Room, which had been funded by a separate gift of $50,000 from the Cramer family in honor of one of the University’s earlier presidents. (The Cramers were apparently promised that the name of the room would never be changed.) On the opposite side of the floor were the stacks that constituted the school’s library. In addition to a center hallway, the third floor also included two offices.

In the basement, one could find a smoking room in the west third of the building with the rest of the space divided between the janitor’s room, a locker room, and an “unassigned” room.

The two biggest academic changes between 1924 and 1925 came from the law school’s decision to eliminate its night division and to require all first year students to have completed two years of college before enrolling in the law school..

For the first time in the school’s 17-year history all first-year students in 1925 were full-time students. Moreover, full-time students now had to present evidence of two years of college work, not just one as had been the case in 1924.

Although currently enrolled night students were allowed to finish their course of study in the evening, these two changes caused the school’s overall enrollment to drop sharply from 325 students in the fall of 1924 to 235 in the fall of 1925. First year enrollment, not surprisingly, was down significantly, as only 39 new freshmen law students enrolled under the more rigorous entrance requirements.

Enrollment would drop even further to 203 students in 1926. (By way of comparison, total enrollment at the University of Wisconsin Law School in 1924-25 was 240 students.) The elimination of the night program did make Marquette eligible for ABA accreditation, which it received in 1925, two years after the American Bar Association began to accredit law schools.

While most of the law students were male, there were a handful of female students, including Lois Kunzli, who sat on the board of directors of the Coed Club, the leading campus women’s organization.

The faculty was made up of 17 professors, five of whom — Dean Max Schoetz, John McDill Fox, Willis Lang, A.C. Umbreit, and Carl Zollman — were full-time teachers. The part-time instructors included Wisconsin Supreme Court Justice Franz Eschweiler, Municipal Judges A.C. Backus and Otto Briedenbach, and Thomas Lyons, the former chairman of the Wisconsin Tax Commission.

Students in 1925 paid $85 per semester in tuition, plus a $3 health service fee each semester. Books were projected to cost $40 in the first year, $25 in the second, and $30 in the third. Students were advised that “Good board can be secured near the Law School at $5.50 to $7.50 per week. Students who club together can board for less.” Legal education, it seems safe to say, was less expensive in the old building.

Marquette graduates in 1925 and 1926 were still required to take the Wisconsin bar examination, but that was okay with Dean Max Schoetz who was an outspoken opponent of the diploma privilege and who supported efforts to have it abolished in Wisconsin.

In summing up the second year of student life in the new law building, the Hilltop, the Marquette yearbook, noted, “Under the direction of Dean Max Schoetz, Jr., the school of law has become one of the most active and enthusiastic departments in the university. During the past year the students in the law school were represented in almost every phase of student life. The lawyers began their year’s activity by winning the Homecoming Trophy for the best float in the parade. On the athletic field, Lavern Dilweg, junior barrister, won recognition for the school of law by being place on Walter Eckersall’s All-American team [for college football].” (Dilweg, an end, went on to star for the Green Bay Packers and later was elected to Congress.)

The law school’s basketball team, also starring Dilweg, won the university intramural championship, and two members of the varsity golf team, including captain Leonard Fons, were law students. A debate team, composed entirely of law students, defeated the team from Cambridge University during its American tour.

A picture of the new law building with an inset of the chandelier and stained glass window from Grimmelsman Reading Room were set out on page 19 of the yearbook. The annual law dance, held in the Knights of Columbus ballroom on January 22, 1926, was reported on page 108. The Law Review, in its sixth year of operation was led by editor-in-chief John M. O’Brien.

With a brand new law building, a day-only student body, new entrance requirements that were exceeded by only a handful of American law schools, and a full-time faculty that included Carl Zollman, one of the best known legal scholars in the United States, AALS membership, and ABA accreditation, the Marquette Law School was well-positioned to take a place among the leading law schools of the 1920’s.

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The Unfortunately Forgotten Vernon X. Miller

Who was the first Marquette University law professor to have clerked for a justice on the United States Supreme Court?  (Hint: the answer is not current dean Joseph Kearney.)  Who was the first, and only, Marquette law professor ever elected president of the Association of American Law Schools?  Who was the only Marquette Law Professor to have studied at Yale Law School during the heyday of legal realism and to be described by legendary Yale law professor Myres McDougal as a “confirmed American legal realist”?  (Hint:  Not David Papke.)  Who was the second Marquette law professor to become dean of the law school at Catholic University in Washington, D.C.?  (Hint:  John McDill Fox was the first.)  And finally, who was the first Marquette law professor to have been widely recognized as a leading national figure in the field of torts? (Hint:  Jim Ghiardi was the second.)

The answer to all of these questions is, of course, Vernon X. Miller.

Miller was born in 1902 in St. Paul, Minnesota.  He attended college and law school at the University of Minnesota where he earned both a bachelor’s degree (1923) and a law degree (1925), as well as membership in Phi Beta Kappa and Order of the Coif.  He also served as editor-in-chief of the Minnesota Law Review.

After law school, Miller clerked for Minnesota-native (and fellow Roman Catholic) Pierce Butler of the United States Supreme Court.  After his clerkship, he returned to the Twin Cities where he worked for the Minnesota Crime Commission and taught as a law professor at St. Thomas College (1926-28).  He then spent a post-graduate year at Yale Law School during the heyday of the legal realism movement.  (At Yale, he overlapped as a fellow with the above-mentioned McDougal and they remained friends for the rest of their lives.)  As a graduate law student, he earned a perfect 4.0 grade point average and received a J. S. D. degree in 1929.

After receiving his Yale degree, Miller returned to teaching at St. Thomas for one year and then practiced law with the Minneapolis firm of Rockwood & Mitchell.  In 1930, he joined the faculty of the University of Oregon as an associate professor of law, but he remained at Oregon for only one year, leaving in the fall of 1931 to join the Marquette Law School faculty as a full professor.

At the time of his appointment, the Marquette Law School was led by Dean Clifton Williams, who had assumed the deanship in 1927, following the tragic death of his friend and law partner, Dean Max Shoetz.  The AALS Directory of Law Teachers for 1937 lists Miller as a member of a 15-man law faculty, although only a handful of the group taught law full-time.  Over the next seven years, Miller taught a wide array of courses, including Torts, Bills and Notes, Conflicts of Law, Agency, Personal Property, Real Property, Equity, Introduction to the Study of Law, Corporations, Damages, Insurance, Partnership, Common Law Pleading, Sales, Securities, Creditor’s Rights, and Corporate Reorganization.

Miller left Marquette after the 1937-1938 academic year to join the faculty at Loyola of New Orleans.  The reason for his departure does not appear to have been recorded.  He was replaced on the faculty by Otto Reis, a Harvard Law School graduate who had previous taught for a number of years at Creighton University.  (Miller’s departure was noted in the 1939 Hilltop, the university yearbook, a publication that normally did not provide much coverage of the law faculty.)  Whether or not his departure involved his relationship with new dean Francis Swietlik is not clear, although both major scholarly figures on the faculty, Miller and Carl Zollman, both departed at the end of the 1930’s, and issues with Swietlik seemed to have clearly affected Zollman’s decision to step down from the faculty.

Miller remained at Loyola-New Orleans for 13 years, serving as dean from 1945-1951.  Following his time at Loyola, he moved to the University of San Francisco, where he was dean of the law school from 1951-1954, and from San Francisco, he moved to Washington D.C.’s Catholic University Law School.  At Catholic, he served as Dean until 1968, and became widely recognized as a leading figure in American legal education.  He stepped down as dean in 1968, but he remained on the Catholic faculty until 1972.  His final year of full-time teaching was spent as a visiting professor at McGeorge Law School in California in 1972-1973. After his retirement, he continued to teach at Catholic as an emeritus professor until 1982.

Miller authored two books on Tort Law and many articles on topics related to law and legal education.  He was particularly prolific when it came to legal issues involving trains.  He was also an avid reader of lawyer related fiction and a great baseball fan.

In addition to serving on a wide array of public commissions, Miller served as Secretary-Treasurer of the Association of American Law Schools in 1962 and 1963, and in 1965, he was the president of that organization.  He was also a long-time member of the American Bar Association’s Committee on Legal Education and Admission to the Bar.

Miller died at age 83, at his home in Maryland in February, 1986, nearly a half century after his time at Marquette.  His papers currently reside at the University of Illinois, but they unfortunately contain virtually nothing about his Marquette years.

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