The following essay is based on remarks delivered at the April 2011 Marquette Law Review banquet that marked the 95th anniversary of the journal.
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.