Justice Janine P. Geske, Distinguished Professor of Law at Marquette Law School, received the Faithful Servant Award from the Milwaukee chapter of the St. Thomas More Lawyers Society at its annual Red Mass dinner on October 10. The Faithful Servant Award is given to recognize a person “who, in the course of religious, legal, community, public or human services, has exemplified in outstanding fashion the commitments and steadfast dedication of Thomas More, first to Almighty God, and to family life, statesmanship, and the law.” Presenting the award was the Honorable Diane Sykes. Judge Sykes praised Professor Geske’s lifetime of service to the legal profession.
Howard Eisenberg, dean of Marquette law school from 1995 until his untimely death at age 55 in 2002, was renowned as an appellate litigator. After his death, the American Academy of Appellate Litigators created the Howard Eisenberg Award in his honor to be given annually to the best article on appellate practice and procedure published in a journal. (One of the winners of this award is our own Prof. Oldfather.)
Howard’s talents evidenced themselves early in his career, beginning with a highly successful performance in Moot Court at the University of Wisconsin Law School. The picture below recently resurfaced on the Internet and shows Howard’s championship moot court team from 1970. Howard is the individual on the far right of the photo.
A fuller description of Dean Eisenberg’s career can be found here.
In December of 1916, Volume 1, Issue # 1 of the Marquette Law Review rolled off the presses. The new publication announced itself as “A Journal Published Quarterly during the School Year by the Marquette Law Students.” The cover price was 35-cents per number, but an entire year’s subscription could be had for one dollar.
(By way of comparison, tuition and fees for students in 1916 were $60 for day students and $40 for those enrolled in the evening division. Relative to today’s tuition rates, that would be equivalent of $200 for an individual issue and about $600 for a year’s subscription. As current students have probably noticed, the cost of law school has gone up a good bit since 1916.)
Why Did the Marquette Law Review Appear in 1916?
The first two decades of the twentieth century was the time in which law school-based law reviews went from being anomalies to becoming an expected component of legal education at the most prominent law schools. Before 1900, there were six such law reviews: University of Pennsylvania Law Review (1852); the Harvard Law Review (1887); the Iowa Law Review (1891); the Yale Law Journal (1891); the West Virginia Law Quarterly (1894); and the Dickenson Law Review (1897). However, as the following list indicates, the number of law reviews had already grown dramatically between 1900 and 1916, as 20 law schools established law reviews between 1900 and 1920.
Columbia Law Review (1901)
Michigan Law Review (1902)
Oregon Law School Journal (1902, folded 1917)
Illinois Law Review (1906, the law review of Northwestern University)
Maine Law Review (1906, folded 1920)
California Law Review (1912)
Georgetown Law Review (1912)
Kentucky Law Journal (1912)
Virginia Law Review (1913)
Fordham Law Review (1914, closed 1917)
Cornell Law Quarterly (1915)
New Jersey Law Review (1915, closed 1916)
St. Louis Law Review (1915, law review of Washington University)
MARQUETTE LAW REVIEW (1916)
Tulane Law Review (1916)
Law Review of the University of Detroit (1916, folded 1931)
Southwestern Law Review (1916, folded 1918)
University of Illinois Law Review (1917)
Minnesota Law Review (1917)
Wisconsin Law Review (1920)
Another 27 were founded between 1921 and 1930, including, in the Midwest, Chicago-Kent and Nebraska (1922), Indiana and Notre Dame (1925), and Cincinnati (1927).
But the growing popularity of law reviews in the United States in the early 20th century doesn’t explain why Marquette started a law review in 1916, rather than 1908 or 1928, or any other year. Given that there were only two Roman Catholic law schools with law reviews at the start of 1916 (and one of those, Fordham, folded its law review the next year after an unsuccessful three year experiment), and that no midwestern Catholic School had created one, one might have thought that a law review would not have been high on the school’s agenda.
The reasons that Marquette established a law review in 1916 appear to be closely tied to a series of crises that Marquette experienced between 1913 and 1916 which raised questions regarding its worthiness of being included among the nation’s best law schools. While there are few records documenting its founding, it seems clear that the law review was one of a number of innovations adopted by the law school during the deanship of Max Schoetz (1916-1927) that were designed to demonstrate that Marquette belonged in the ranks of the nation’s top law schools.
The Marquette Law School was founded in 1908, when Marquette University, as part of its plan to convert itself from a small college into a university, acquired the 16-year old private Milwaukee Law School and the recently established Milwaukee University Law School (which despite its ambitious name was a stand-alone law school with one professor and only 10 students).
Marquette combined the two schools into a single night division, and in the fall of 1908, a new full-time day division was added as well. James G. Jenkins, a retired federal judge, was named as the first dean. The faculty, all of whom taught part-time, was recruited from the ranks of prominent Milwaukee lawyers and from the lawyers who had taught at the two predecessor schools. Two years later, the school added a second full-time faculty member (in addition to the dean) in the person of University of Chicago law graduate Arthur Richter, who doubled as faculty secretary.
No one connected with Marquette’s new law school appears to have given any thought to the idea of a law review in 1908.
From the beginning, Marquette wanted to have a have a highly regarded, and nationally known, law school. To that end, it applied for membership in the elite Association of American Law Schools in 1911. Although it was passed over for membership the first year, it was admitted in 1912, when the AALS met in conjunction with the ABA in Milwaukee. At the time only 45 of the nearly 200 American law schools were AALS members.
The two primary requirements of the AALS in 1912 was that all members offer a three year law course (which Marquette did, and had to because of the requirements for the Wisconsin bar exam), and they had to admit as degree candidates only students with a high school diploma or the equivalent (which Marquette did, sort of). In addition, member schools were required to maintain a law library of a certain size. Marquette did not meet the library requirement in 1912, but it was admitted based on its promise to remedy this situation as quickly as possible.
In spite of its promising beginning, the law school suffered a series of major setbacks beginning in 1913. Many at Marquette thought that its AALS membership would prompt the Wisconsin legislature to extend the diploma privilege to the new law school. University of Wisconsin graduates had been exempted from the Wisconsin bar exam since 1870, but Marquette graduates had to take it. Unfortunately, a Marquette-backed proposal to extend the privilege to the Milwaukee school was rejected by the Assembly. Crucial to the failure was the unwillingness of the justices of the Wisconsin Supreme Court to support the proposal.
A war of words then broke out in the pages of the American Law School Review between Marquette’s Professor Richter and Professor Howard Smith of the University of Wisconsin Law School. Richter accused the Madison school of hiding its deficiencies with the diploma privilege, which had already been denounced by the American Bar Association. Smith , in turn, noted the hypocrisy of Marquette’s opposition to the diploma privilege only after its efforts to obtain its benefits had been rejected by the state. Both articles relied upon intemperate language, and Marquette threatened to sue for libel, a decision that did not put the school in a particularly good light.
Then, in May of 1916, Marquette was hit by an unannounced inspection by the AALS, prompted, many believed, by allegations by the University of Wisconsin that Marquette was not compliant with AALS regulations. (Wisconsin, in 1911 and 1912, had opposed Marquette’s admission to the organization on the grounds that it was not really a AALS-type law school.) If nothing else, the investigation showed that record-keeping under Dean Jenkins had been chaotic, at best.
Fearing expulsion from the AALS, Marquette moved to make a number of changes. The 82-year-old Jenkins stepped down as dean in August, and University of Wisconsin graduate Max Schoetz was appointed acting dean. Schoetz, a Milwaukee lawyer since 1908, had joined the Marquette faculty in September 1914 as director of the practice court, and in February 1916 he replaced the recently fired Arthur Richter as Faculty Secretary.
In October, Marquette was charged with non-compliance of AALS regulations. (The was part of a broader crackdown by the AALS on member schools that were allegedly not honoring AALS standards, and the same charged was leveled the same year against six other laws Schools: Dickinson, Drake, Hastings, Pittsburgh, Tennessee and Trinity (Duke).
The establishment of the law review was in all likelihood part of Marquette’s effort to prove that it was in fact a law school worthy of AALS membership. On December 27, in the same month that the Marquette Law Review first appeared, Acting Dean Schoetz, Marquette President H. C. Noonan, S.J., Wisconsin Supreme Court member and Marquette faculty member Franz Eschweiler, and law professor Albert Houghton attended the AALS meeting in Chicago prepared to defend the law school and its practices. (It is probably significant that neither Jenkins nor any of the early Associate Deans or secretaries were asked to attend.)
At the meeting Marquette was acquitted of all of the charges against it and was found to be making appropriate progress toward meeting the library requirement. The following August, Schoetz’ “acting” title was dropped, and he was appointed the second dean of the law school at the uncommonly young age of 32.
During his tenure as Dean, Schoetz oversaw a number of additional changes that helped “modernize” the Marquette Law School. The appointment of full-time faculty, the use of the case method as the primary means of instruction, the requiring of first one and then two years of prior college coursework for degree candidates, an emphasis on the secular nature of the law school, the securing of ABA accreditation, and, somewhat reluctantly, the elimination of the night program were all products of Schoetz’ deanship.
Once the crisis passed, one could point to the Marquette Law Review as evidence that Marquette was in fact becoming what Dean Schoetz called the Midwest’s most progressive law school. While the rival University of Wisconsin created its law review four years later, it would always be the case that Marquette had the first law review in the state of Wisconsin.
Who Were the Members of the Original Marquette Law Review Staff?
The original law review staff in the fall of 1916 consisted of 15 students, eight of whom were in their final year of law school. Six were underclassmen, and one was a member of the recently graduated Class of 1916. According to the Law School Bulletin, there were 102 students enrolled that year in the day program and 98 in the evening division.
Although there were seven women in the law school that year, all 15 of the members of the law review were male. Twelve were enrolled in the day division and three in the evening. All were from Wisconsin, but only five hailed from Milwaukee. The communities of Tomah, Marinette, Green Bay, Cuba City, Sheboygan, Appleton, Glenbeulah, Fond du Lac, and Bradley, Wisconsin, were all represented on the original staff.
How the original law review staff was chosen is not known. Law Bulletin descriptions of the law review, which began in 1918, made no reference to the way that staff members were chosen until 1941 when it stated that “the editorial staff is chosen from second- and third-year students on the basis of scholarship.” One suspects, however, that the original staff was made up of volunteers.
Only ten of the 15 original law review staffers eventually graduated from the law school, although it should be remembered that only three years of law study, not graduation from law school, was a prerequisite for eligibility to take the Wisconsin bar exam, and the diploma privilege had not yet been extended to Marquette graduates. (That would not happen until 1934.) None of the three evening students graduated, and one, Joseph R. Fitzsimmons, appears to have dropped out of law school after one semester of working with the law review.
The editor-in-chief was James D. Moran, a senior law student from Tomah, Wisconsin. The only other named positions were business manager, held by Russell M. Frawley, a junior student from Marinette, and Secretary/Treasurer, filled by junior Edward H. Clemens from Green Bay. Notable among the remaining staff members was future Marquette law professor Francis A. Darnieder. By the time issue number 2 hit the streets several months later, the journal had added a circulation manager and three new staff members (although it had also lost two members).
The original faculty adviser was Professor Clifton Williams, who taught Code Pleading, Code Practice I and II, and Conveyancing, and also worked as the Milwaukee City Attorney. (In 1916, all Marquette faculty members were still part-time teachers.) Not coincidentally, he was also the law partner of Dean Max Schoetz, who had brought his friend on to the faculty. (Eleven years later Williams would succeed Schoetz as the dean of the law school following his Schoetz’ tragic death in an automobile accident on the way to the 1927 Marquette Commencement.)
What Was Published in Volume 1, Number 1?
Volume 1 began with a foreword written by Milwaukee lawyer William A. Hayes, then vice-president of both the American Bar Association and the Wisconsin State Bar Association. Hayes praised the student staff for undertaking “a most commendable work” that would help the law school “expand and fulfill its mission.” He also noted that the Marquette students involved in the production of the law review “have shown a spirit of which older and more pretentious colleges—presumably a reference to the University of Wisconsin—might well be proud.” He also called upon every member of the Wisconsin bar to the support the venture.
The editors themselves then proclaimed that their primary intention was “to furnish an attractive bond between the Marquette Law students and the Alumni and secondarily, to acquaint each and every lawyer in the state with the fact that the Cream City is the locus in quo of the most progressive law school in the middle west. Furthermore, we purpose to devote the REVIEW exclusively to a resume of Wisconsin law and to a discussion and exposition of matters which we may deem of special, practical value to the Wisconsin bar.”
The introduction also promised the future appearance of a humor column written by Dr. I. M. Clear. This did appear in Issue #2, but “fortunately” this feature had been discontinued by the time Volume 2 appeared.
The substantive content of Volume 1, Issue 1, established a pattern that the Review would follow for many years. It sought out articles from leading legal figures in Wisconsin, but it also served as a mouthpiece for the Marquette Law School faculty and its students.
The inaugural law review article was written by Chief Justice John B. Winslow of the Wisconsin Supreme Court and was entitled, “The Property Rights of Married Women under Modern Laws.” Footnote number one in the history of the Marquette Law Review appeared on page 11 and concisely cited to Montague Lush in “A Century of Law Reform” (1901), p. 342. Of Winslow’s remaining ten footnotes in the first part of his article—the conclusion was carried over to Issue 2—seven were to decisions of the Wisconsin Supreme Court and the remaining three were to Blackstone’s Commentaries. The second half of the article had only four additional footnotes.
Following Winslow’s article was an essay by Marquette professor A. C. Umbreit. Umbreit was an original faculty member at Marquette Law School and had been the dean and sole faculty member of the Milwaukee University Law School that Marquette had acquired in the summer of 1908. In 1919, he would become one of the school’s first full-time faculty members. Umbreit’s subject was “The Common Law of Wisconsin,” which he insisted was a different topic than the “common law in Wisconsin.”
Following Umbreit’s article, the law review introduced one of its more imaginative innovations—a section entitled: Legislative Suggestions. Designed to help implement the image of Marquette as “the most progressive law school in the Midwest” this feature was designed to point out areas of Wisconsin law that were in need of reform.
The first such article was contributed by Marquette professor and future American Bar Association president Carl B. Rix. Rix’s contribution, cleverly entitled, “Needed Property Legislation in Wisconsin,” actually dealt with Rix’s view that the Rule Against Perpetuities in Wisconsin needed to be reformed so that it applied to personal property as well as interests in land. (That the Rule applied only to interests in land was a distinctively Wisconsin position which was eventually reversed by the type of legislation that Rix called for in his contribution.)
The second contribution, written by editor-in-chief James Moran (who would end up practicing law in Tampa, Florida), called for an end to the practice of Wisconsin judges signing statements of findings of fact submitted to them by attorney. That was followed by an entry from W. C. McGeever, the recent graduate on the staff, entitled “Tenancies at Will and Notice to Quit,” and one from senior law student Francis Darnieder, “The Right to Try the Title of a De Facto Officer by Injunction.” The latter topic grew out of an incident a few years earlier when partisan strife in Madison had created a controversy as to who was entitled to hold the office of Wisconsin Insurance Commissioner.
The law review’s second issue followed a similar pattern. Chief Justice Winslow’s article was concluded. Milwaukee City Attorney Garfield S. Canright contributed an article on “Testimony as to Transactions or Communications with Deceased Persons.”
In the Legislative Suggestions section, Milwaukee lawyer John F. Woodmansee argued that Wisconsin should scrap nearly one hundred years of history and replace the existing land registration system with the Torrens System. Prof. Rix contributed another article, this time one arguing for a change in the sections of the corporation law of Wisconsin dealing with “watered” stock.
Student articles in Issue 2 included an extremely prescient article by junior law student, C. Stanley Perry, calling for the abolition of the privity doctrine in products liability law so that injured bystanders could more easily sue the manufacturers of defective products that had injured them. (Perry appears to have left the law school without ever actually graduating, but went on to a successful career as a lawyer in Wisconsin and published another article in the Marquette Law Review 28 years later.)
The second student comment was by Irving Rosenheimer and dealt with the use of physicians as expert witnesses. Both Perry and Rosenheimer joined the Law Review for the issue that included their articles. The second issue ended with Dr. M. I. Clear’s humorous take on the subject of judicial notice.
In March of 1917, half-way through the first volume, the Marquette Law Review revamped its staff, replacing editor-in-chief Moran with former Business Manager Russell Frawley. The goal, as the editor’s statement made clear, was to guarantee continuity from the 1916-1917 academic year to the next. As it turned out, the rude intrusion of World War I did disrupt the law review that year anyway, as business manager John W. Kelly ended up as Lieutenant John W. Kelly in the U.S. Field Artillery in France. For good measure, Prof. Carl Rix also ended up replacing Clayton Williams as Faculty Advisor.
Nevertheless, the pattern that the Marquette Law Review would follow for many years was now set. Although its focus was on the law and politics of Wisconsin, it purpose was to establish beyond doubt that the Marquette Law School was a significant and progressive institution whose students and faculty did not hesitate to involve themselves in the significant legal issues of their time.
Of course, over time articles in the law review got longer and longer and footnotes got more and more numerous. Poor Chief Justice Winslow would today likely be laughed out of Eckstein Hall if he submitted an article with only 15 footnotes. While the focus of its content became more and more national in scope, the journal has never forgotten its commitment to the analysis and reform of the legal system of Wisconsin.
Today’s version of the law review has more than fulfilled the dreams and ambitions of those who created the journal 95 years ago.
In a comment to my earlier post marking the 52nd anniversary of Marquette’s final varsity football game, Nick Zales asked why Marquette decided to terminate its 78-year-old football program in 1960.
The explanation given at the time was that a competitive football team was too expensive for Marquette to maintain in light of the university’s plans for further expansion. (Plans for a 10-year, $30 million fund-raising campaign to pay for additional campus improvements, higher faculty salaries, and more student financial aid had just been announced.)
In revealing the plan to shut down the football and track-and-field programs at the end of the 1960-61 academic year, President O’Donnell stated that the University Athletic Board had, at his request, voted to terminate the two sports because of the university’s “reasonable unwillingness to accept the financial hardships imposed by these two sports in light of the other needs of the university.” The football team had reportedly lost $50,000 over the course of the fall 1960 season and had run at a deficit for several years.
From the perspective of more than a half century, it is hard to evaluate the wisdom of O’Donnell’s decision. The decision to end football was certainly unpopular with students, alumni, and Marquette fans at the time. Shortly after the announcement, an estimated 3000 students marched from the campus through downtown Milwaukee chanting, “We want football. We want justice.”
At the same time, an alumni group, led by Milwaukee businessman Johnny Sisk, pledged to raise the money necessary to pay off the athletic department’s deficit and collected $15,000 the first week. (Sisk had starred for Marquette in the 1930’s before moving on to a five-year career as a halfback for the Chicago Bears. He also had a son on the current Marquette team.)
Although the effort to reverse President O’Donnell’s decision received coverage in the New York Times and other national media outlets, the efforts were to no avail, and football did not return to Marquette.
But was it really necessary to terminate the Marquette football program in 1960?
While it was true that the Marquette football team had done poorly in the mid to late 1950’s—a combined won-lost record of 13-50-3 from 1954 to 1960—the program’s prospects were clearly looking up after the 1960 season. Although the 1960 team had finished with a mediocre 3-6-0 record, the season had started on a strong note at 3-1-0 before Marquette’s fortunes were derailed by injuries. Attendance at Marquette games was up in 1960, and the team had secured permission to play home games in Milwaukee County Stadium, the home of the Braves and Packers (when they played in Milwaukee).
Furthermore, there was every reason to think that the Marquette football team would be much better (and draw in greater revenues) in 1961. In spite of its so-so record, the 1960 team was actually laden with talent; only two starters (both interior linemen) from 1960 were graduating; and the team’s two top stars, halfback David Thiesen and end George Andrie, were among those returning.
Even though Marquette dropped football after the 1960 season, four members of the 1960 team—Andrie, end Pete Hall, and halfbacks Karl Kassulke and John Sisk, Jr.—went on to play in the NFL. Moreover, the fact that fullback Frank Mestnik had moved from the 1959 Marquette team to a starting position with the NFL’s St. Louis Cardinals in 1960 was proof that Marquette could still recruit from the ranks of the top college players.
Furthermore, 1960 was an unusual time for a college, especially the largest Catholic university in the United States, to drop football. From the onset of the Great Depression through the early 1950’s, a significant number of American colleges and universities discontinued their “big-time” football programs because of financial concerns. Most of the colleges that did so were Roman Catholic schools.
Twenty Catholic colleges dropped “big time” football between 1930 and 1954. Including Loyola of Chicago (1930); Loyola of Baltimore (1933); St. Francis of New York (1935); DePaul (c.1938); St. Joseph’s (1939); Gonzaga and Providence (1941); Creighton and Manhattan (1942); St. Francis of Pennsylvania (1946); St. Louis and Portland (1949); Duquesne, Georgetown, Mt. Saint Mary’s, and Niagara (1950); Loyola of Los Angeles and St. Bonaventure (1951); San Francisco (1952); and Fordham (1954).
Several of these schools, especially Fordham and San Francisco, had once been ranked among the top football programs in the United States. (The year in parentheses is the last year the school competed in football, and not necessarily the year in which the decision to eliminate the program was made.)
(Until 1956, the NCAA did not classify its members into divisions, so the category of schools playing “big-time” football was somewhat subjective. After 1956, the NCAA was divided into University and College divisions, which then defined the line between “big-time” and “small college” football. The use of three classifications—Divisions I, II, and III—began in 1973.)
However, relatively few colleges dropped big-time football after 1954. In fact, between 1954 and 1972, only two Catholic colleges gave up football—Marquette and the University of Detroit (1964). Marquette and Detroit (now Detroit Mercy) had played each other for decades, and it is likely that had Marquette not dropped football, Detroit would not have either. (The University of Scranton also dropped football in 1960, but at that time, Scranton played in the “small college” division of the NCAA.)
While 20 Catholic schools did drop football before 1954, there were many others that continued to play football in the NCAA’s highest division after Marquette dropped the sport in 1960. That list obviously includes Notre Dame and Boston College, but it also contains Canisius, Fairfield, Holy Cross, Iona, LaSalle, St. John’s (NY), St. Mary’s (CA), Santa Clara, Seton Hall, Siena, Villanova, and Xavier (OH). There is no particular reason to think that such schools were better able to support football in the 1960’s than Marquette.
While it is true that many of the schools on the previous list eventually did drop their football programs, those decisions came years later. Moreover, none of the schools that subsequently dropped football were as large as Marquette in 1960, and none had such a rich football tradition. None had ever played in a major bowl game, as Marquette had, and certainly none had sent as many as 70 of their former players to the NFL, as Marquette had done.
As Prof. Thomas Jablonsky notes in his Milwaukee’s Jesuit University: Marquette, 1881-1981 (2007), the O’Donnell presidency (1948-1962) is remembered as a period of impressive growth for Marquette, in terms of the size of the student body (to over 12,000), the university’s physical plant, and the quality of its academic programs. However, it is possible that the Marquette football program may have been a casualty of the university overextending its resources at the end of the 1950’s.
Moreover, the fact that Marquette eliminated football more than 50 years ago does not mean that the sport could not be brought back. Two of Marquette’s fellow members of the Big East Conference–Georgetown and Villanova (which dropped football in 1981)–have subsequently reestablished their football programs at the Division I, Playoff Championship Subdivision (formerly called Division IAA) with great success.
Duquesne, Fordham, and St. Francis (PA) have followed the same route in reestablishing football, and, in addition, at least four Catholic schools—the University of Dayton, Marist, Sacred Heart, and the University of San Diego, which did not play in the “University” Division or Division 1 before the 1990’s—have also moved into the Division I, Playoff Championship Subdivision.
Although the Marquette administration and Athletic Department have long insisted that the subject of reviving the football program is not on the agenda, now may be the time to reopen the question of whether or not it would make sense for Marquette to bring back football in the 21st century.
Today (Nov. 13) is the 52nd anniversary of Marquette’s final varsity football game. The tradition-ending contest pitted Marquette against the University of Cincinnati Bearcats before a crowd of 13,000 at the long-disappeared Marquette Stadium at Merrill Park on November 13, 1960.
Marquette had begun the 1960 football season with great enthusiasm. After losing the first seven games of the 1959 season, the rebuilding Warriors won their final three games with victories over North Dakota State, Cincinnati, and Holy Cross. In the three games, Marquette outscored its opponents, 113-46.
The 1960 season began with more successes, as Marquette defeated Villanova 23-13 at home in the season opener and then travelled to the West Coast where it blanked Pacific, 20-0.
However, the winning streak came to an end the next week in Madison when the Warriors fell to the Badgers 35-6. (Marquette played Wisconsin 28 times in football over the years, and, somewhat bizarrely, all 28 games were played in Madison. In those games, Marquette was only 4-24, raising questions as to who did the scheduling in those days.)
Marquette returned to its winning ways the following week when it eked out a 13-12 home victory over arch-rival Boston College.
However, after the BC Game, the Marquette train slid off the rails. A road trip by the heavily favored Warriors to Bloomington, Indiana, to play the winless University of Indiana resulted in a 34-8 defeat.
The return home the following Saturday witnessed a 23-6 loss to Vanderbilt, another winless team. (Although to be fair to Vanderbilt, three of the Commodores losses at that point were to Mississippi, Alabama, and Florida who finished the season ranked #2, #9, and #18 in the AP poll. The remaining loss was to Georgia, which lost only to Alabama, Florida, nationally ranked Auburn, and the University of Southern California in 1960. Even fifty years ago, the Southeastern Conference was a dominant league.)
A subsequent two-week road trip resulted in upset losses to Detroit Mercy and Holy Cross and ended the possibility of the school having its first winning football season since 1953. Sportswriters blamed the downward spiral on the erratic play of the team’s three quarterbacks and its general lack of speed.
In its season’s ending game with Cincinnati, Marquette faced a team with an identical record (3-5), an even longer losing streak (five games versus four), and a nearly identically named coach. (Marquette was coached by Lisle Blackbourn and Cincinnati by George Blackburn, who had already been told that he would not be the coach in 1961.)
Although the Associated Press made Cincinnati the favorite, the Milwaukee Journal predicted a victory for the home-standing Warriors.
Alas, it was not to be. Marquette star halfback Dave Thiesen was injured early in the game, and his replacements could not pick up the slack, as the home team managed only two first downs in the opening half. Meanwhile, Cincinnati raced to a 19-0 halftime lead.
Although the Marquette defense shut out the Bearcats in the third quarter, and the Marquette offense twice drove inside the Cincinnati 10-yard line, the Warriors could not cross the Bearcat goal line. (In an era of one-platoon football, starters played both offense and defense, and if taken out of the game could not return until the next quarter.)
In a more wide-open fourth quarter, both teams put two touchdowns on the board, with the final Marquette touchdown scored by end George Andrie, later an NFL All-Pro with the Dallas Cowboys. The final score was Cincinnati 33, Marquette 13.
Of course, no one on November 13, 1960, knew that this would be the last Marquette football game ever. With only eight seniors on the 1960 squad, and with both Thiesen and Andrie returning, the prospects for a winning season in 1961 seemed quite favorable. On December 1, 1960, the team held its final meeting of the fall and elected captains for the next season.
The fateful announcement came nine days later on December 9, 1960, when the Rev. Edward J. O’Donnell, the president of Marquette since 1948, declared an immediate end to Marquette football. There would be no 1961 season.
When the announcement came without warning, it shocked the Marquette football team, the Marquette campus, and Marquette fans everywhere, some of whom have not recovered to this day.
George McGovern, a long time Congressman and Senator from South Dakota and the 1972 Democrat Presidential candidate, was briefly a member of the Marquette University faculty.
In the spring of 1996, McGovern held the Allis Chalmers Chair in History at Marquette University. In that capacity, he taught a course on the History of American Foreign Relations.
McGovern’s long service in Congress was not his only credential for such a position. After serving as a bomber pilot during World War II, he graduated from Dakota Wesleyan College in his native South Dakota, and later earned a PhD in American History from Northwestern University. Even before completing his PhD, he returned to Dakota Wesleyan as a professor of History and Political Science. He remained at Dakota Wesleyan until 1956 when he was elected to Congress from South Dakota’s First District.
Prof. McGovern’s course was quite popular with Marquette students, and his lectures were delivered in the auditorium in Cudahy Hall. In addition to the regularly enrolled students, the audience for the lectures always included a large number of “auditors” from across the university. In my first year on the law school faculty, I attended many of these lectures.
One of the best parts of the class was McGovern’s willingness to remain after his lecture and answer questions from the audience. As I recall, most of the questions came from the auditors, many of whom also expressed their appreciation to the Senator for his heroic stand against the Vietnam War more than two decades earlier. Many of those, like me, had cast their first vote in a presidential election in 1972.
Sen. McGovern passed away on October 21, at the age of 90. In 1972, the outspoken opponent of the Vietnam War lost the presidential election to incumbent Richard Nixon who prevailed in the Electoral College by a vote of 520-17. After the election, he continued to represent South Dakota in the United States Senate until 1981.
[Editor’s Note: This blog is the third in a series of interviews with faculty and staff at the Law School.]
A member of the Law School faculty since 1970, Professor Kircher teaches torts, insurance, products liability, and seminars in advanced issues on torts. He received the Marquette University Faculty Award for Teaching Excellence in 1986 and the Marquette Law Review Editors’ Award in 1988. In 1993 he received the American Bar Association Tort and Insurance Practice Section’s Robert B. McKay Award for distinction in the teaching of torts and insurance law. Before coming to the Law School, he practiced law and subsequently was Research Director of the Defense Research Institute. He has chaired the Wisconsin Judicial Council and the Wisconsin Supreme Court Board of Bar Examiners. He is coauthor of Punitive Damages: Law and Practice. Professor Kircher is a member of the Editorial Board of the Defense Law Journal, and was Editor of the Federation of Defense & Corporate Counsel Quarterly.
Question: How did you first become interested in insurance and tort law, and what do you find most intriguing about those areas of law?
My interest in the two subjects started in law school, most probably because they were taught by my favorite professor, Jim Ghiardi. It developed in my first three years after law school due to my work in a defense firm that handled cases in those two areas. It developed further and faster thereafter when Jim asked me to join him as his second-in-command at a legal think tank, the Defense Research Institute, that concentrated its work in those two areas. Also the two subjects are interesting to me because the law constantly changes. In fact, by the time I left the Law School the Wisconsin Supreme Court had changed about 25 percent of what I learned in first-year Torts. I would expect that most of the law I learned in my other courses has remained nearly the same.
Like their counterparts of a century later, the Marquette Law School class that entered in the fall of 1912 was the third class to begin law school in a new building. Whereas the Class of 2012 was the third class to start in Eckstein Hall, those who entered in 1912 had a similar claim in regard to the Mackie Mansion, a former residence purchased by Marquette University in 1910. From 1908 until the acquisition of the new home for the school, law classes were held in the still-standing in 2012 Johnston Hall. However, within two years, overcrowded conditions necessitated a separate law school building.
The Mackie Mansion was located on the corner of 11th Street and Grand Avenue (now Wisconsin Avenue). It was set back from Grand Avenue and was situated in the spot occupied by the southern half of Sensenbrenner Hall in its current form, as viewed from 11th Street.
The 1912 class consisted of 36 full-time day students and 28 evening students. All 64 class members were males, and all but four were from Wisconsin. The four out-of-state students included day students from Menominee, Michigan and Waseca, Minnesota, and night students from the distant locales of Franklin, Indiana, and Shellyville (not Shelbyville), Kentucky.
Milwaukeeans accounted for more than 60% of the class. Seventeen day students were from Milwaukee with an 18th from West Allis. Perhaps not surprisingly, 23 of the 28 night students were from the Cream City.
The faculty in 1912 looked quite impressive on paper, consisting of Dean James G. Jenkins, a retired United States Circuit Court Judge, Secretary (Assistant Dean) Arthur Richter, a graduate of the University of Chicago Law School, the Rev. Charles B. Moulinier, S. J., the Regent of the College of Law and a teacher of a required upper level course in Legal Ethics, and 23 Milwaukee lawyers and judges, most of whom taught only a single course.
Many of these lawyer-professors were quite prominent, including U.S. District Court Judge Ferdinand Geiger, Milwaukee Circuit Court Judge Franz Eschweiler, future American Bar Association President, Carl B. Rix, and Dr. W. J. Cronyn, who was also a professor at the Marquette Medical School and who may be the person who first advocated the creation of a law school at Marquette. [link to earlier post of Cronyn]
The law school year started a month later in 1912 than it does in 2012. There was no student orientation in 1912, and registration for all students was on Monday, September 23. Day classes began the following day, and evening classes commenced on Wednesday, September 25.
The fall semester did not end until Thursday, January 30, 1913, and the first semester exam period ran until February 7. The Spring Semester began on Monday, February 10, and ran until June 13. The law school, unlike the college, did not observe the Roman Catholic holy days, and the only holidays recognized in 1912-1913 were Thanksgiving (one day), Christmas (a 16 day recess), Washington’s Birthday, and Easter (6 days, Thursday through Tuesday).
Students in both divisions of the law school were required to have the equivalent of a high school education, and day students had to be at least 18 years of age. Students who entered the day division without one or more years of college study were encouraged to enroll in a four year law course that included the entire law curriculum and a year of liberal arts courses.
Those contemplating the study of law were “urgently advised to pursue courses in Political Economy, Political Science and Government, English and American Constitutional and Political History, Logic and Sociology.”
The first year curriculum of a century ago bore a passing resemblance to the required courses of today. Students enrolled in the regular first year law course in 1912-13 took the following courses in their first semester:
Introduction to the Study of Law (1 hr.)
Criminal Law and Procedure (2 hrs.)
Domestic Relations (2 hrs.)
Contracts I (3 hrs.)
Torts I (2 hrs.)
Personal Property, including Bailments (2 hrs.)
And in the second semester:
Contracts II (3 hrs.)
Torts II (2 hrs.)
Agency (2 hrs.)
Equity (2 hrs.)
Common Law Pleading (2 hrs.)
Real Property I (1 hr.)
Although the curriculum added up to only 24 semester hours for the year, students took twelve courses, compared to the eight taken by today’s students. In addition to Criminal Law, Contracts, Torts, Property, and Pleading (Civil Procedure), students in 1912 also took Domestic Relations (family law), Agency, and Equity. They did not take Legal Writing, and Constitutional Law I and II were required upper level courses.
Students enrolled in the evening course entered a four year program. Although the evening course did not normally qualify students for the Bachelor of Laws degree—even after four years they were short on credit hours—evening students were eligible to take the Wisconsin Bar Examination. (In fact, under the existing Wisconsin bar admissions rules, they were eligible to take the examination after their third year in the Marquette evening program.)
First year evening students in 1912 took many of the same courses, though they were structured somewhat differently. In the fall, evening students took Contracts I, Torts I, Common Law Pleading I and Property I, all of which met for one hour and a half each week. In addition, they took one credit hour courses in Persons and in a composite course called Introductory Elements of Law and Criminal Law, for a total of 8 credit hours.
In the spring, they continued with Contracts, Torts, Common Law Pleading and Property, again in 1.5 hour formats, along with another one hour Persons course and a one hour course in Criminal Procedure, for another 8 credit hours.
To receive credit for courses, students had to attend at least 85% of scheduled classes. The passing mark on all exams was 70%, but students who scored above 60%, but below 70%, received a “conditional” which allowed them to retake the examination at a later date without having to retake the course. Students who received scores below 60% were required to retake the course in its entirety. Students who failed more than half their courses were dismissed at the end of the semester.
By any standard, legal education at Marquette was a real bargain in 1912. Yearly tuition was $100 in the day division and $60 in the evening program. Tuition had to be paid in full within the first 10 days of each semester, and those who could not do so were required to withdraw. In addition, there was a $5 matriculation fee, and students who took examinations other than at the regularly scheduled time were required to pay a $5 special examination fee. The cost of law books for the entire first year was estimated to be $30.
The only activities for law students listed in the law school bulletin in 1912 were the Dean Jenkins Law Club (a debating society) and the Moot Court. However, a note in the catalog also noted that “all literary, social and similar organizations in the University are open to Students of Law.”
In 1912, there was no Marquette Law Review, and the law school had just secured admission into the Association of American Law Schools.
As the members of the Class of 2012 make their way into the legal profession, and memories of this past May’s Commencement ceremony begin to fade, it is an interesting historical exercise to look back at the Law School’s 4th Commencement in June of 1912.
In 1912, there were two commencement ceremonies at Marquette University: one for the Colleges of Arts & Sciences, Engineering, Law, Music, and Economics and the other for Medicine, Dentistry, Pharmacy, and Nursing. (In 1913, the two ceremonies would be combined into a single event held at the Milwaukee Auditorium.)
The 1912 Commencement for the College of Law was held on Friday evening, June 21, at the Pabst Theatre [sic].
Music was supplied by the Marquette University Orchestra, which performed Franz Von Suppe’s overture “Poet and Peasant,” as well as selections from Aida and the Mikado, and then closed the ceremony with John Philip Sousa’s “Manhattan Beach March” (which was also played at the 2012 Commencement).
A total of 48 degrees and diplomas were awarded that evening. The College of Arts and Sciences awarded 18 degrees, including 5 Master of Arts degrees; the Law School awarded 15 Bachelor of Laws degrees; the College of Engineering presented nine Bachelor of Science degrees in civil, electrical, and mechanical engineering; the Business School awarded one Bachelor’s Degree in Economics and two Diplomas in Business Administration, while the Music School awarded a single Bachelor’s Degree. In addition, two students received Diplomas in Journalism.
All the degree recipients were male, although there were likely a number of female graduates at the “medical” commencement. (In 1913, for example, women received degrees from all four of the “medical” colleges.)
Candidates for the Bachelor of Laws degree were presented by the dean of the law school, retired United States Circuit Court Judge James G. Jenkins. All were listed as Wisconsin residents except for David Haley, who was from Hibbing, Minnesota. The degrees were formally awarded by Rev. Joseph Grimmelsman, S.J., the university president. The sole Commencement speaker was the Hon. Paul D. Carpenter, who was the Assistant United States Attorney in Milwaukee as well as a former Milwaukee County Judge and a former Lecturer at the College of Law. (He was also the son of the noted Wisconsin United States Senator, Matthew Hale Carpenter.)
Fourteen of the 15 recipients of the Bachelor of Laws degrees received regular degrees, but one received what was designated an “Honorary Degree, Bachelor of Laws.” This was a carryover from a decision made in 1908 in conjunction with the takeover of the independent Milwaukee Law School. The Milwaukee Law School never bothered to apply for degree granting authority (presumably because all that Wisconsin required as a prerequisite for taking the bar examination was three years of law study). In taking control of the law school, Marquette agreed to award Marquette University Bachelor of Laws degrees to any former student of the Milwaukee Law School who had passed the Wisconsin bar examination.
While this created an instant pool of law alumni, the decision turned out to be ill-advised, and by 1912 the university was being criticized, probably unfairly, for selling law degrees. (There was a $10 graduation fee that had to be paid by anyone seeking a degree.) By 1910, the title of the degree had been changed to “Honorary Degree,” and by 1911, the number of such degrees awarded was only nine. The university clearly discouraged any suggestion that current night students could be awarded degrees under the original agreement, and in 1912, 1913, and 1914, only one honorary degree was awarded at each commencement. In 1915, there were none.
The 14 recipients of the regular Bachelor of Laws degree were the winners in a war of attrition. Thirty-three students had begun as full-time students in the College of Law’s day division in the fall of 1909. Their number declined to 26 the following fall, and to 24 in the fall of 1911. Although the class picture, which hangs outside the #253 Faculty Office Complex in Eckstein Hall, shows 24 class members, only 14 met the requirements for graduation in the spring of 1912. To graduate, students were required to pass 72 semester credit hours with a grade of at least 70 (on a 100 point scale) in each course.
However, the rules of the College of Law allowed students to continue in the law course, even if they had no realistic chance of graduating, so long as they met certain minimal standards. All a student had to do to remain eligible to continue was to pass half of his (or her) courses each semester. In theory, at least, one could make it to the end of the three-year law course with barely half the credits necessary to graduate.
While this seems oddly lax by modern standards, it made sense because graduation from law school was not a prerequisite for admission to the bar in Wisconsin (or any other state) in 1912. Whether or not a student passed, or even took, law school examinations was irrelevant for bar examination eligibility, so long as he or she had devoted the requisite amount of time to law study (which in 1912 Wisconsin was three years.) Moreover, since the Wisconsin diploma privilege was not extended to Marquette Law School graduates until 1934, those who received the law degree had to take the same examination as those who did not.
Actual receipt of the law degree may have conveyed a measure of prestige upon the recipient but it did not confer any formal benefit in regard to bar admission. Nor is there any evidence in 1912 that the lack of a degree was a substantial impediment to a successful career as a lawyer, so long as the student could pass the bar examination.
Few of those who did complete the degree actually excelled on their examinations. Of the 14 law graduates in 1912, only two, Leo W. Bruemmer of Kewaunee, Wisconsin, and Oliver L. O’Boyle of Milwaukee, achieved a cumulative average of over 90, which was required to graduate cum laude. O’Boyle, who would later serve as Corporation Counsel for Milwaukee County from 1931 to 1956, was clearly the star of the 1912 Commencement. Not only was he one of two students to receive his law degree with honors, he also simultaneously received a degree of Master of Arts, an accomplishment achieved by only four other students.
Also receiving the degree of Master of Arts that day was Milwaukee native and first-year law student, Francis X. Swietlik. Swietlik had begun work on the Master of Arts degree after receiving his B.A. degree from Marquette in 1910, and he apparently finished the requirements during his first year of law school.
Swietlik, of course, later became an important leader of the American Polish community, and was closely connected to the Law School for more than 50 years. He became a part-time faculty member in 1916, joined the permanent faculty in the 1920’s, served as dean from 1934 to 1952, and then continued to teach at the law school while serving as a Milwaukee Circuit Court judge until his retirement in the 1960’s.
More on Swietlik’s Marquette career can be found here.
Among those receiving degrees at the 2012 Marquette commencement was former Green Bay Packer linebacker George Koonce. Koonce, who took several classes at the law school while a graduate student at Marquette, received his PhD degree in Interdisciplinary Studies.
Koonce’s doctoral dissertation was entitled “Role Transition of National Football League Players: Using the Grounded Theory.” The dissertation was directed by Dr. John Cotton of the School of Business Administration.
Between 1992 and 2000, Koonce played nine seasons in the National Football League, all but the last with the Green Bay Packers. (His final season was with the Seattle Seahawks.) The graduate of East Carolina University ran back two interceptions for touchdowns and made over 500 tackles during his NFL career. He was also a member of the 1996 and 1997 Packer teams, which played in Super Bowls XXX and XXXI.
During his graduate school years, Koonce was advised at different times by Marquette law professors Matt Mitten and Gordon Hylton.
A recent story on George Koonce from Milwaukee Magazine can be found at this link.
George Koonce’s recent guest column for the ESPN NFL Blog, entitled “Surviving Life after the NFL,” can be found here.
African-American lawyers were a scarce commodity in 1930.
A recent post on the ConLawBlog posed the question of how many African-American lawyers there were in the United States in 1930. This is a subject that I have been studying for some time, and thanks to a heads up from Professor Idleman, I was able to answer the question.
According to the U.S. Census, in 1930, there were only 1247 black lawyers in the entire United States in 1930, out of a total number of 160,605 lawyers. Of the 1247, 1223 were male and only 24 were female.
Even though the Great Migration had begun after World War I, the bulk of the African-American population still lived in the South in 1930. However, thanks to racial prejudice and limited economic opportunities below the Mason-Dixon line, a significant majority of black lawyers lived outside the South.
The largest concentrations of black male lawyers was in Illinois, which had 187 male African-American attorneys.
Other states with significant numbers were New York (117); Ohio (94); Michigan (63); and Indiana (62). The only Southern jurisdictions with comparable numbers were the District of Columbia (94); and Virginia (57).
Complete state-by-state breakdowns for the 24 females are not provided in the published Census Reports for 1930. The largest number of black female lawyers appears to have been in the District of Columbia, where there were four.
As a percentage of total lawyers, black male lawyers accounted for more than 2% of total male lawyers only in the District of Columbia (2.8%) and Virginia (2.4%). If female lawyers are included — and the number of female lawyers in those two jurisdictions is available — the percentage of black lawyers in each of those two jurisdictions actually goes up slightly, but was still less than 3%.
Nowhere was the absence of black lawyers in 1930 more shocking than in the Deep South. In spite of the large black population, proportionately much larger than it is today, Alabama had only 4 black lawyers, while Mississippi, Louisiana, and Florida had only 6, 8, and 10, respectively. The totals for Georgia and South Carolina were just 14 and 13.
Black lawyers were more numerous in the other former Confederate states, but only slightly: North Carolina (27), Tennessee (26), Arkansas (16), and Texas (20).
Not surprisingly, given the small pre-World War II black population of Wisconsin, black lawyers were scarce in the Badger State. According to the 1930 Census, there were only three black male lawyers in Wisconsin in 1930, although there was also at least one black female attorney, former Marquette law student Mabel Raimey. (The three black male lawyers included law partners George Heriot DeReef, A.B. Nutt, and James Weston Dorsey, and Ambrose B. Nutt, all of Milwaukee.)
By way of comparison, Minnesota had 11 black lawyers in 1930, while Iowa had 7. North and South Dakota had none.
In addition to a long career as a member of the Wisconsin bar, Zummach also played and coached basketball at Marquette, and from 1939-1942, he served as head coach of the Sheboygan Redskins of the National Basketball League, a forerunner of the NBA.
Zummach, a Milwaukee native, attended Marquette High School, and enrolled as a college student at Marquette in 1929. He began playing basketball for Marquette in 1930, and he entered the law school in 1932, with one year of varsity eligibility remaining.
Zummach continued to play on the Hilltopper varsity team as a first year law student and then switched to the role of assistant coach once his eligibility as a player expired. When he received his law degree in 1935, Frank was a member of the second class of Marquette Law students to be admitted to the bar under the diploma privilege. Because of the quality of his work in law school, he received the J.D. degree, rather than the then more common, L.L.B.
Frank gave up coaching in the fall of 1942 and for the next six decades, he practiced law in Sheboygan. In the late 1990’s, he was “rediscovered” by basketball historians and was a frequently lauded figure in basketball circles during the final fifteen years of his life.
For more on Frank’s career, see my post “The Marquette Law School Graduate Who Coached in the NBA Finals.” An extended obituary from the Sheboygan Press can be found at here.