Horace Scurry: Our First African-American Law Student

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Horace S. Scurry was one of many fascinating individuals who passed through the Milwaukee Law School between the time of its founding in the early 1890’s and its merger with Marquette University in 1908.  He appears to have been the first African-American to join the ranks of that institution’s students.

Details of Scurry’s life are meager.  He was born in 1865 in Delaware, Ohio, and first arrived in Milwaukee in 1882 at age 17.  He attended school in Milwaukee and then returned to Ohio, where he enrolled in Ohio Wesleyan College (which was in his hometown of Delaware).  The college catalog listed him as a Milwaukee resident, and he apparently entered college with the intention of becoming a teacher. In 1900, he was working at Booker T. Washington’s Tuskegee Institute, as the steward of the teachers’ house and, reportedly, as a teacher.

He returned to Milwaukee at some point and enrolled in the Milwaukee Law School.

Although he studied law, he does not appear to have been admitted to the bar.  The Milwaukee Law School was designed to prepare students for admission to the Wisconsin bar and did not award degrees of its own.  However, in 1908, following the merger, Marquette University awarded a law degree to any former student of the Milwaukee Law School who had been admitted to the Wisconsin bar.  Scurry’s name does not appear on the list of degree recipients, although it is possible that he was admitted but did not bother to apply for the Marquette degree.

In any event, Scurry’s future was in neither education nor law, but in religion.  In the early twentieth century (if not sooner), he became an ordained Baptist minister. He was affiliated with the Mt. Zion Baptist Church in Milwaukee (a black Baptist church) and with the Wisconsin State Baptist Convention.  After his entry into the ranks of the clergy, he retained an interest in politics and public affairs.  The archives of the American Socialist Party contain a letter written to Scurry by Norman Thomas, the party’s perennial presidential candidate.

In 1935, Scurry, aged 70 and retired from the ministry, was awarded a monthly old-age pension of $30 from the Milwaukee county court.  A story in the December 17, 1935, edition of the Milwaukee Journal reported the award of the pension by County Judge John C. Karel and mentioned Scurry’s prior affiliation with the Milwaukee Law School.  Scurry died on June 6, 1943, still affiliated with the Mt. Zion Baptist Church.

Marquette University Law School in 1939

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In 1938, Jim Ghiardi transferred to Marquette University after his sophomore year at Northern State College (now Northern Michigan University) in Marquette, Michigan.  A year later, Jim enrolled in the Marquette University Law School under a program that allowed Marquette students to count their first year of law school as the final year of their undergraduate education.  Jim received his Ph.B. degree in 1940 and his law degree in 1942. The following is a description of the law school at the time of his initial enrollment in the fall of 1939.

The Law School

By 1939, Marquette University Law School had been training lawyers in Milwaukee for more than 45 years, and the school had been officially part of Marquette University since 1908.  Since 1924, all law school classes had been taught at the Law School Building (now known as Sensenbrenner Hall) which replaced an earlier building on the same site.

In 1939, the law school boasted an enrollment of 248 students and a faculty of ten, plus four “special lecturers” and law librarian Agnes Kendergan.  In addition, the Rev. Joseph A. Ormsby, S. J., served as the Regent of the Law School. Although the law school had originally offered instruction primarily in the evening, the evening division was terminated in 1924, and the last evening class was offered in 1927.

As an institution, Marquette University Law School was squarely in the mainstream of American legal education.  The school had been admitted to the Association of American Law Schools in 1912, and in 1925, shortly after the American Bar Association began to accredit law schools, it won ABA accreditation.  Historically, Marquette Law School graduates were required to take the Wisconsin bar examination to practice law in the state, but in 1933, after a long and sometimes bitter contest with the University of Wisconsin, the “diploma privilege” was extended to Marquette graduates.

Admission and Degrees

To secure admission to the law school, applicants had to be 18 years of age and must have completed three years of college.  There is no evidence that anyone who met these qualifications was turned down in 1939, but this was true for virtually every American law school before the Second World War.

Marquette students in 1939 had the option of pursuing two different types of law degrees—the bachelor of laws and the juris doctor.   Marquette was one of several American law schools that used this distinction to provide recognition for students who entered law school with college degrees (which were required only at a handful of schools) and who performed extremely well while in law school.  This two law degree program had been adopted at Marquette during the 1925-26 academic year.

The standard law degree was the bachelor of laws (LL.B.), which was the equivalent of today’s J.D. degree.  To earn this degree students had to complete 85 hours of law courses, including 4 hours of Office Practice and 4 hours of Moot Court, with an average grade of 77.  (In 1939, the law school was in the process of changing its grading system.  The school had previously used the traditional letter system, but beginning with the class that entered in 1938, students were graded on a numerical basis ranging from 60 to 100.  Ninety-three or better was considered an A, and cumulative averages of 71 and 74 were required to continue after the first and second years, respectively.)

The second degree was the juris doctor, or J.D., degree.  For it, students were required to have entered law school with an undergraduate degree, to complete the requirements for the LL.B. with an average grade of 88 (which was in the middle of the B range), and to prepare and submit an acceptable thesis by May 1 of their final year.  The thesis, if accepted, became “the property of the School and at the direction of the Dean [could] be published.”  By 1940, the J.D. was clearly passing out of fashion among Marquette law students.  Although the degree was awarded to 67 students between 1926 and 1937, no one earned the degree in 1938, and the last two recipients received the degree in 1939.  The J.D. degree remained on the books for several more years but was eventually discontinued sometime between 1942 and 1945.

The Academic Calendar

In 1939, the academic year started and ended much later than it does today.  Law School classes did not begin until September 26, and the first semester examinations did not end until February 2, 1940.  The second semester began on February 6 with graduation on June 12.

Tuition for the regular academic year was $230 — although those who opted for payment on the installment plan had to pay an additional four dollars — and board and lodging could be found in the vicinity of the law school for an estimated $7.50 per week.  Third year students who were also candidates for the law degree had to pay an additional $12.50 diploma fee.

The Student Body in 1939

The 248 students enrolled at the law school during the 1939-40 academic year included 76 Seniors (third-year students), 72 Juniors, 97 Freshmen, and 3 Special Students.  (Special students were enrolled in classes but were not candidates for degrees.)

All 97 students in the 1939 freshman class were male, although this was something of an aberration as there were two women in the senior class and three in the junior.

Eighty-seven of the 97 freshmen students were from Wisconsin, and 58 were from Milwaukee proper.   Nine of the 10 out-of-state students were from the Midwest, including Jim Ghiardi, who was from Negaunee, Michigan.  The only student with a hometown outside the Midwest was Jim’s future faculty colleague Ray Aiken, whose parents lived in Jacksonville, Florida.  Only 18 members of the class were listed as having earned undergraduate degrees prior to beginning law school, although several, like Jim, earned their bachelor’s degree at the end of their first year of law school.

The Law School Curriculum 

The University Bulletin for 1939-40 described the law school’s method of instruction as the “case method,” which it asserted “inculcates habits of accurate reasoning.”  However, the same document also emphasized that the faculty neglected “neither the purely scientific nor the practical element of legal education” and noted that special attention was given to Wisconsin law.

To earn the law degree students had to pass 85 credit hours of courses, most of which were required.  All of the first-year classes—which included four year-long courses and five that lasted one semester—were required and counted for 34 of the 85 credit hours.  Each class was taught in a single section.

Students in the fall of 1939 had Dean Francis X. Swietlik for Contracts, Professor Otto Reis for Torts and for Agency, Prof. J. Walter McKenna for Criminal Law and Procedure, Prof. Francis A. Darnieder for Introduction to Law, Prof. Willis E. Lang for Personal Property, and the Rev. Joseph A. Ormsby, S.J., for Natural Law and Jurisprudence.  In the spring, Contracts, Torts, Criminal Law and Procedure, and Natural Law and Jurisprudence continued with the same instructors, but Lang’s Personal Property course was replaced by one on Domestic Relations (also taught by Lang).  The final spring semester course was Domestic Relations taught by Prof. Carl Zollman.  All of the professors, except for Rev. Ormsby, were full-time law professors.  The first-year curriculum is set out below:

Semester 1

Contracts (3 hrs)

Torts (3 hrs.)

Criminal Law and Procedure (2 hrs.)

Natural Law and Jurisprudence (2 hrs.)

Introduction to Law (3 hrs.)

Personal Property (2 hrs.)

Agency (2 hrs.)

Semester 2

Contracts (3 hrs.)

Torts (3 hrs.)

Criminal Law and Procedure (2 hrs.)

Natural Law and Jurisprudence (2 hrs.)

Domestic Relations (3 hrs.)

Sales (2 hrs.)

Eleven additional courses—eight of which were year-long courses—were mandated for Second and Third Year students, for a total of 42 credit hours.  Altogether, the required courses counted for 74 of the 85 credit hours necessary for the degree.  The remaining hours could be obtaining by choosing among 12 elective courses.  The 1939-40 upper level curriculum is set out below:

Upper Level Required Courses

Bills and Notes

Real Property (2 sem.)

Constitutional Law (2 sem.)


Equity (2 sem.)

Wills and Probate (2 sem.)

Evidence (2 sem.)

Office Practice (2 sem.)

Legal Ethics

Moot Court (2 sem.)

Business Associations (2 sem.)

Elective Courses

Administrative Law

Future Interests

Code Pleading (2 sem.)


Code Practice (2 sem.)

*Municipal Corporations

*Conflict of Laws


Creditors’ Rights

Security (Suretyship) (2 sem.)

Federal Jurisdiction


* Offered every other year.  Note:  Code Pleading and Code Practice became required courses in 1940-41.

The Faculty 

The law faculty in 1939 consisted of the six full-time professors mentioned above (including Dean Swietlik) and four part-time instructors:  Rev. Ormsby, who also taught in the Philosophy Department, Thomas P. Whelan, who was also an instructor in the English Department, and Milwaukee lawyers E. Harold Hallows and Carl B. Rix.  (Hallows was a future chief justice of the Wisconsin Supreme Court and Rix, a future president of the American Bar Association.)  All but Ormsby were law school graduates who had spent time practicing law in Milwaukee.

The University Bulletin described the members of the law faculty in 1939 as “men who not only take high rank at the bar, but who have been trained in the best universities and law schools of the country.  Such men possess not only the wide empirical knowledge of the practical lawyer in a large city, but also the broad, comprehensive basis of theory and method which is indispensable to the successful teacher.”

Several of the full-time faculty members carried extraordinarily heavy course loads, at least by modern standards.  Swietlik, who had been dean since 1935, taught seven required courses for a total of 15 credit hours.   The real workhorse of the faculty in 1939-40, however, was J. Walter McKenna who taught ten courses (four of which were required).  Francis Darnieder and Willis Lang each taught seven courses; Otto Reis taught five; and Carl Zollman, the best known scholar on the faculty, taught only four.

The part-time faculty members carried much lighter loads.  E. Harold Hallows taught three classes and Rev. Ormsby taught two.  Carl B. Rix taught only a single course, but it was the course devoted to future interests and the Rule Against Perpetuities.  Francis Whalen was listed in the 1939 catalog as a law professor but actually taught no courses that year.

Student Life

The only law school-specific activity listed in the Law School Announcement was the Marquette Law Review.  However, law students were encouraged to take active interest in the University Band, the University Choir, the University Chorus, the University Symphony Orchestra, intramural sports, and the various social, dramatic, literary, debating, and religious organizations.  In a report to University President Raphael McCarthy, S. J., in 1939, Dean Swietlik noted that the law school was concerned about the social life of its students and thus regularly sponsored “smokers,” annual dances including the Barristers Ball, and an end-of-the-year banquet for the law students, the faculty, the Milwaukee bar, and the Wisconsin judiciary.

Legal fraternities also played an important role in the social life of the law school.  Fraternities in 1939 included Delta Theta Phi, which had its own building, Phi Delta Phi, and Tau Epsilon Rho, a fraternity for Jewish law students.

According to the University yearbook, the Hilltop, “extracurricular activities [were] prominent in the law school,” and students were encouraged to participate “in organized religious and social movements for the common welfare of their fellows.”  While the law school acknowledged the importance of “the development of the social side of the student’s character,” its official publication cautioned: “No student activity is allowed to interfere with study.”

The Subsequent Law School Experiences of the Class of 1942 

In spite of the reportedly grueling nature of the first year of law school at Marquette, ninety percent (88 of the 97) freshmen students in 1939-40 returned for their second year in the fall of 1940.  A similar percentage of second-year students (79 of 88) returned for the third year of law school in 1941.

It was during a three-day break for the Feast of the Immaculate Conception during the fall semester of 1941 that Marquette law students learned of the Japanese attack on Pearl Harbor.  The likelihood of military call ups prompted Marquette to accelerate its Spring 1942 schedule, and in May, 69 members of the class received law degrees.  (Two of the 69 had actually finished even earlier so that they could enter military service.)

The law school awards announced at the 1942 Commencement were dominated by future Marquette law professors Ray Aiken, who received the award for the highest three-year grade average, and Jim Ghiardi, who received the award for the best performance during the third year of law school.

Sources:  Miscellaneous files, Marquette University Archives; Francis X. Swietlik, “History of Marquette University Law School” (unpublished manuscript, 1939); Marquette University Bulletin: Announcement of the Law School for the Session 1939-40; 1940-41; 1941-42; 1942-43; Interview with Prof. James A. Ghiardi, May 2007.  This essay was originally written for the 2007 program honoring Jim Ghiardi’s 61 years on the Marquette Law School faculty.

The Mystery Of Eugene Scott: MU Law School’s First (?) African-American Male

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Although the career of Mabel Raimey, the first black woman to attend Marquette Law School is well documented — see Phoebe Williams’ wonderful article in the  Marquette Law Review — we do not know with certainty the name of the first African-American male.

For the post-1908 period, when the Milwaukee Law School became part of Marquette University, Eugene W. Scott appears to be a likely candidate for the institution’s first African-American student.  Scott was one of the 46 first-year students enrolled in the Law School’s day program in the fall of 1911.  (One of his classmates was future dean Francis X. Swietlik.)  He is also one of 35 students listed as “Day Juniors” in the following year’s College of Law bulletin.  His photograph also appears as “E. W. Scott” in the Class of 1914 group picture which currently hangs in the hallway outside the Dean’s Office on the first floor of Sensenbrenner Hall.

There is also evidence that Scott did well as a student at Marquette.

His picture appeared in the July 1913 edition of The Crisis, the magazine of the National Association of Colored People, with the note that he was competing for the senior oratorical prize.   However, in spite of his photograph appearing in the above-mentioned class picture, he is not listed among the 18 individuals who received law degrees at the 1914 commencement.    It was not necessary to graduate from law school to practice law in Wisconsin in 1914, and Scott, like many of the law students of that era, may have left without graduating.  However, his appearance in the class photograph suggests that his decision must have been a last-minute one.  It is, of course, possible that he failed his final law school exams.

We actually know very little about Scott, either before or after he attended Marquette.  Entries in the 1912 and 1913 Marquette Law School bulletins list him as a resident of Milwaukee, but a search of the 1910 United States Census shows that there were only three Eugene Scotts in Wisconsin that year, and none of the three were black or of an age that would match Scott’s photographs in The Crisis or at the Law School.  However, the 1910 Census does list an African-American named Eugene W. Scott living in Chicago.  That Eugene Scott was born in 1883, and was then working as a waiter in a hotel while living in a boarding house.  If this is the Eugene Scott who enrolled at Marquette in 1911, he would have been 27 or 28 years old at that time.

Scott apparently moved to Janesville, Wisconsin, after leaving Marquette, and in January 15, 1915, he corresponded with Mary Childs Nerney, the secretary of the NAACP, regarding efforts to protest the recently released film Birth of a Nation, which cast African-Americans in a bad light.  Later that year, the Chicago Defender, a leading black newspaper, published a letter from Scott regarding his efforts to protest the showing of the film in Janesville, which included an appearance before the Janesville City Council.

What happened to Scott after 1915 is not known.  He does not show up in Wisconsin in the 1920 Census, but a Eugene W. Scott does show up as living in Buffalo, New York.  This Eugene Scott was also born in 1883 in Mississippi, as was the Eugene Scott listed as living in Chicago in 1910.  This Eugene Scott was elected president of the Buffalo chapter of the Colored American Workmen’s League in 1919.  Following his election, Scott delivered a eulogy for the recently deceased Theodore Roosevelt, whom Scott described as “the greatest friend of the Negro in American public life since Abraham Lincoln.”

After 1920, the record goes blank.  There is no mention of a Eugene W. Scott born in 1883 in Mississippi in the 1930 United States Census.  More evidence may be forthcoming, but for now Eugene Scott, likely the first black student to enroll in the Marquette Law School, remains a man of mystery.

While Scott may have been the first black student to enroll at the Marquette College of Law, there was at least one black student at the Milwaukee Law School, its predecessor institution.  The career of Horace Scurry will be the subject of the next entry in this series.

James G. Jenkins:The First Dean of Marquette Law School

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00600737When Marquette University acquired the Milwaukee Law School and the Milwaukee University College of Law in the summer of 1908, one of its first tasks was to find a well-known dean for the institution now to be known as the Marquette University College of Law.  Although the new faculty was largely recruited from the ranks of the faculty of the two private law schools that it was to be absorbing, Marquette turned to retired federal judge James Graham Jenkins to be its first dean.  Although he was reportedly reluctant at first to take the position because of his age, Jenkins eventually agreed and served in that post for seven years.

Like many Wisconsin lawyers of his generation, Jenkins was a native New Yorker who had moved to Milwaukee prior to the Civil War.  He was born in Saratoga Springs on July 18, 1834, the son of New York City merchant Edgar Jenkins and Mary Elizabeth (Walworth) Jenkins. His maternal grandfather was Reuben Hyde Walworth, a former United States congressman and New York chancellor who in 1844 was nominated, unsuccessfully as it turned out, to the United States Supreme Court by President John Tyler.

Jenkins did not attend college or law school but instead studied law in the office of the New York City firm of Ellis, Burrill, and Davison for five years. He was admitted to the bar at age 21 and worked as “head clerk” for a New York law office for two years.  In 1857, he relocated to Milwaukee.

Over the next 31 years he engaged in the practice of law in Milwaukee. According to Jenkins, his first position in the city was in the law office of Jason Downer who paid him $3 per week.  However, within in six months he had become a partner with Downer, who in 1864 became a justice on the state Supreme Court.  Jenkins later formed a partnership with Edward Ryan and Matthew Carpenter, both legendary figures in the legal history of Wisconsin, and he was later a partner with the less-well remembered James Hickox.

An active Democrat, Jenkins did not serve in the Civil War.  However, he was one of the speakers at a mass rally on behalf of the Union war effort held in Wisconsin on July 31, 1862, and in 1863, he was elected Milwaukee City Attorney, a position that he would hold until 1867.  After leaving office, he formed his own law firm which was known at various times as Jenkins & Elliott; Jenkins, Winkler, & Smith; and Jenkins, Winkler, Fish & Smith.  In 1877, he chaired the state Democratic convention that nominated James S Mallory of Milwaukee for the state’s highest office.

In 1879, Jenkins himself was the Wisconsin Democratic Party’s nominee for Governor of Wisconsin, but he was beaten fairly soundly by Republican William E. Smith who received over 50% of the votes in a three-man race.  (There was also a Greenback Party candidate who received approximately 7% of the vote.)  In 1881, he was the Democrat candidate for the United States Senate, but the Republican majority in the Wisconsin legislature not surprisingly chose one of their own.

Jenkins’ services to his party did not go unappreciated.  In 1885, newly elected Democratic president Grover Cleveland offered Jenkins a position on the Supreme Court of the District of Columbia, but Jenkins declined the appointment.  However, on June 18, 1888, he was appointed United States district judge for the eastern district of Wisconsin by President Grover Cleveland and his appointment was confirmed by the Senate on July 2.  Although Cleveland was defeated for reelection in 1888, he was again elected president in 1892.  For his second term, he selected Judge Walter Q. Gresham, a former Republican turned Democrat, as his Secretary of State, and in 1893, Jenkins was appointed Gresham’s replacement as United States Circuit Judge for the Seventh Judicial Circuit.  His nomination was confirmed by the Senate and he sat on the Circuit Court until he retired in 1905 at the age of 71.

Shortly after his appointment to the Seventh Circuit, Jenkins was arrested following an indictment by a Milwaukee grand jury which concluded that he and the other directors of the failed Plankinton Bank had improperly taken money from the bank after it had become insolvent.  The story of Jenkins’ arrest was reported on the first page of the July 13, 1893 New York Times, but Jenkins resisted suggestions that he resign from the bench, and in November, the indictments were declared “null and void” by the Milwaukee Circuit Court.

Jenkins most famous (or infamous) judicial decision also came in 1893 in the case of Farmers Loan & Trust Co. v. No. Pacific Ry., 60 Fed. 803, in which he enjoined a strike against a railroad under receivership and in doing so coined the phrase “government by injunction” (which he viewed favorably).  Jenkins’ injunction, which was interpreted as barring the workers from quitting their jobs, was highly controversial, and there were efforts in Congress to censure him.  Eventually he survived the attacks, although the broader aspects of his ruling were narrowed on appeal.

After retiring from the bench in 1905, Jenkins returned to Milwaukee where he remained at least semi-retired, a status that meant that he was potentially available to fill the newly created position of dean of the Marquette University College of Law.  Although he was 74 years old in the fall of 1908, there were a number of reasons why he was an attractive candidate for the position of dean.  First of all, Jenkins’ prominence as a jurist brought a degree of luster to the law school.  In addition to his status as a federal circuit court judge, he also had been awarded honorary doctor of law degrees from the University of Wisconsin (1893) and Wabash College (1897).  He was also a member of the nine-lawyer committee that drafted the original American Bar Association Canon of Ethics which was formally adopted in the summer of 1908.

Furthermore, although Jenkins himself had not attended law school, he had been involved with legal education off and on throughout his career.  Early in his law practice, he had trained a number of attorneys in his office, including Milwaukee lawyers Horace Upham and Louis Lecher (once Jenkins’ secretary) both studied law under his direction.  While a judge, he had also lectured at law schools in Milwaukee and Chicago.

Although the extent of his involvement is not clear, he reportedly lectured at the Milwaukee Law School during its early years, and he was involved with the establishment of the John Marshall Law School.  John Marshall, an evening law school located in the Chicago Loop, had been founded in 1899, while Jenkins was still on the federal bench and based in Chicago.  He was one of the school’s original faculty members and was the featured speaker at its first commencement in 1902.  Apparently his connection to the law school was one that continued until his retirement from the bench in 1905.  In 1906, the Chicago school published several of his lectures delivered at the law school the year before which was his final year in the Windy City.

While his teaching probably involved little more than showing up a couple of nights a week and delivering lectures on federal court procedure, his experiences did provide him with some exposure to contemporary legal education, albeit of the night school variety.  The Milwaukee Law School and the Milwaukee University Law Schools had provided instruction at night, but the plan for the new Marquette University Law School was to have both a day and an evening program.

Jenkins was also not a Roman Catholic, but that does not appear to have been a major concern of the priests who ran Marquette University in 1908, as all but one of the original law faculty members were Protestants.  (The University took the same ecumenical approach to the recruitment of members for its Board of Regents which was founded in 1909.  The original regents included Jenkins and a number of other Protestants, and, shortly thereafter, Jews.) Although Jenkins was an Episcopalian, he did have a connection to Roman Catholicism in that his uncle, Clarence Walworth, was a convert to Catholicism and a founder of the Paulist Fathers.

One of the strategies of the new Marquette Law School was to supplement the instruction of the regular faculty (all of whom also practiced law) with lecturers drawn from the ranks of distinguished lawyers and jurists.  Presumably, Jenkins’ personal connections in Wisconsin and Illinois helped facilitate this, and the law schools’ first catalog lists 24 such lecturers, including Chicago federal judge Kenesaw Mountain Landis, later the first commissioner of Organized Baseball.  Jenkins himself was listed as a lecturer (and not a professor) with the Law of the Sea and Trade Marks listed as his subject areas.

The law school appeared to flourish under Jenkins direction.  The enrollment in the fall of 1908 was 127 students, including 77 freshmen, totals that far exceeded those of its two private law school predecessors.  Entry level enrollments leveled off after the first year but overall enrollments remained strong, and the number of students reached 166 in the fall of 1915, Jenkins last semester as dean.  Moreover, after initially holding classes in Johnston Hall, the law school obtained its own building in 1910, the Mackie Mansion, located on the current site of Sensenbrenner Hall.  In 1912, the law school was admitted into the Association of American Law Schools, an organization of law schools committed to higher admissions standards (at least a high school diploma or its equivalent) and an expanded curriculum (a three year law course).

Although Jenkins was a “full-time” dean and occupied one of the few faculty offices in the law school building (the Mackie Mansion), he taught very little and appears to have been somewhat detached as an administrator.  He was originally assisted by an associate dean—first Lynn Pease and then Edward Spencer, both former faculty of the Milwaukee Law School—but it appears that neither Jenkins nor the associate deans kept any records at all.  In 1911, Arthur Richter was hired as a full-time faculty member and secretary for the law school, but the situation did not appear to significantly improve.

The final years of Jenkins’ deanship were marked by controversy.  In 1914, Richter published an article in the American Law School Review (the leading publication devoted to legal education in the early 20th century) that accused the University of Wisconsin Law Department of unfairly lobbying the legislature to defeat a new bar admissions statute that would have eliminated the diploma privilege.  In reply, Professor Howard L. Smith of the University of Wisconsin attacked the character and quality of the Marquette Law School and noted, correctly, that Marquette had supported the diploma privilege until it became clear that the Wisconsin legislature until it became clear that the Wisconsin legislature was not going to extend the privilege to an institution that many Wisconsin lawyers still thought of as a night school.  Marquette, presumably with the approval of Jenkins, then threatened to sue the University of Wisconsin for libel.  This cross-state verbal warfare did little to help the reputation of Marquette and seems not to have harmed its public school neighbor.  It also did not help when it was revealed that during the acrimonious Richter-Smith exchange, Richter was secretly trying to secure an appointment to the Wisconsin faculty.

A more serious problem arose in 1915 when Marquette underwent a surprise inspection by the Association of American Law Schools to determine if it was in fact complying with AALS guidelines.  Although the 81-year old Jenkins decided somewhat abruptly to step down in the fall of 1915, there seems little doubt that his lax leadership and record keeping had made the investigation more likely.  Marquette was able to survive an effort to expel it from the organization the following year, but its poor record keeping clearly hampered its ability to prove its innocence.  Jenkins was replaced as dean by faculty member Max Schoetz, who began as acting dean but was given the permanent position the following year.

After stepping down as dean, Jenkins remained a member of the Marquette Board of Regents until his death in Milwaukee on August 6, 1921.  He also continued to be involved in a variety of civic affairs and sat on a number of boards of charitable organizations.  On September 30, 1917, the Milwaukee Old Settlers Club honored him for his 60 years of residence in the city.  After his retirement, he also published an article on the “Admiralty Jurisdiction of Courts” in Volume 4 of the Marquette Law Review.

Although it was written in 1897 for publication in a highly flattering biographical encyclopedia called Men of Progress: Wisconsin Jenkins would probably have been pleased with the following as his obituary:

He has always been a close student of the law, of general literature and of the arts; and these studies have given him a strength and a grace in all his efforts at the bar which not many of his professional associates have attained. Free from the tricks and cunning which too often disgrace the practice of a noble profession, he came to be recognized as one of the foremost and ablest of the bar of Wisconsin. As a practitioner he had his full share of notable cases in the courts, and conducted as large a percentage of them to successful conclusion as have the most prominent of his contemporaries.

His bust can be found on the first floor of Sensenbrenner Hall, just outside the elevator.

Lavvie Dilweg (’27): MU Law’s Contribution to the NFL (and to Congress)

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slide0005_image008Marquette University eliminated its varsity football team in 1960, and the heroics of the Golden Avalanche, Hilltoppers, and Warriors (as the team was variously known) are now dimly remembered, if at all.  There was a time, however, when Marquette produced a steady supply of players for the National Football League.   Beginning in 1920, a total of 70 former Marquette players found their way into at least one NFL game.

The first Marquette alumnus to play in the NFL was Edward Lewis “Bo” Hanley, a Milwaukee native who played wingback for the Detroit Heralds in 1920, the league’s inaugural season when it was known as the American Professional Football Association.   The 5’7”, 150 pound Hanley was born in Milwaukee in 1887, and was thus 33 years old during the 1920 season, his only year in the NFL.  When the Green Bay Packers entered the NFL in 1921, their center was 29-year old Marquette alumnus, Richard John Murray, the second Marquette student to play in the NFL.  “Jab” Murray, as he was known, was a native of Ocanto and was 6’1” tall and weighed a hulking 219 pounds.

The last Marquette player to join the NFL ranks was defensive back John Martin Sisk, Jr. who played for the Chicago Bears in 1964.   Sisk—whose father starred at Marquette in the 1920’s and with the Bears in the 1930’s—had played at Marquette as a freshman and then had transferred to the University of Miami when the school dropped football.   The last two Marquette football players to appear in the NFL were Minnesota Viking safety Karl Kassulke, who transferred to Drake University after Marquette dropped football and who entered the NFL in 1963, and Dallas Cowboy defensive lineman, George Andrie, who remained at Marquette for his senior year after the school dropped football and was then drafted by the Cowboys.  Both Kassulke and Andrie appeared in the Pro Bowl during their careers—Andrie did so on five occasions–and both appeared in the Super Bowl, albeit on the losing side.  Both players retired after the 1972 season.

However, the greatest of the Marquette alumni in the NFL was clearly LaVern “Lavvie” Dilweg, who played left end for the Milwaukee Badgers and the Green Bay Packers from 1926 to 1934, winning first team all-pro honors six times.

The 6’3,” 200 lb., Dilweg was born in Milwaukee in 1903.  He grew up in city of his birth and was a star football player at Washington High School in the late 1910’s and early 1920’s.  He continued his football career at Marquette where he won All-American honors as an end who played both defense and offense.

After two years in the college, Dilweg enrolled in the Marquette Law School from which he graduated in 1927.  The diploma privilege had not yet been extended to Marquette, but Dilweg took, and successfully passed, the bar exam during the summer following his graduation.  Having exhausted his college football eligibility prior to his third year of law school, Dilweg played for the NFL’s Milwaukee Badgers while attending law school during the 1926 season.

Dilweg was one of five former Marquette players on the Badgers roster that season.  Unfortunately, the professional Badgers, who featured eight rookie starters, were generally outclassed by their opponents in 1926.  The team finished with a record of 2-7, and folded before the official end of the season, bringing to a close Milwaukee’s official presence in the NFL.

In 1927, Dilweg signed with the Green Bay Packers and at the same time began the practice of law in Green Bay where he was to reside for the rest of his life.  During Dilweg’s years with the team, the Packers were one of the premier teams in the NFL, and he was one of its top stars.  After finishing second in 1927, and fourth in 1928, the Packers reeled off three consecutive NFL championships, and would have won a fourth in 1932, but for the NFL rule that ties did not count in the standings.  In 1932, Green Bay finished 10-3-1, but lost the title to the 7-1-6 Chicago Bears.   (Under modern rules, which treat ties as a half-win and half-loss, Green Bay would have been awarded the 1932 championship.)  Between 1929 and 1932, the Packers were a combined 44-7-3, with an undefeated 12-0-1 season in 1929.

In 1933, the NFL was divided into two divisions and the Packers level of play declined somewhat.  In both 1933 and 1934, they finished third in the NFL’s Western Division.   At the end of the 1934 season, Dilweg retired from football at age 31 to devote himself to his law practice and his other business interests.  He did, however, keep his hand in the sport by refereeing Big Ten football games on a regular basis until 1943.

In addition to his law practice, Dilweg was involved in the construction industry in Green Bay, as well as numerous other business and civic activities.  He served as a director of the Green Bay Blue Jays baseball team which was a member of the Class D Wisconsin State League, and from 1934 to 1943, he was in charge of the Green Bay Home Owners Loan Corporation (HOLC), a New Deal housing agency.

A strong supporter of Franklin Roosevelt, Dilweg was active in Democratic Party politics in Wisconsin.  In 1943, he was elected as a Democrat to the United States House of Representatives from Wisconsin’s 8th District.  His election marked only the third time since 1848 that the voters of Green Bay’s district had elected a Democrat to Congress.  By all accounts his celebrity as a former Green Bay Packer star contributed to his victory.  In the House, he served with a former Marquette Law School classmate, John B. Bennett of Michigan (’25), who was also elected in the fall of 1942.

Unfortunately for Dilweg, his stint in the House of Representatives turned out to be only a single two-year term as he went down to defeat with President Franklin Roosevelt as the Republican Party carried Wisconsin in the 1944 elections.  (Ironically, Bennett, a Republican, was also defeated in 1944, but he was later returned to Congress for nine additional terms.)

After leaving Congress , Dilweg resumed the practice of law in Green Bay but also maintained an office in Washington, D.C.  In 1961, he was named by President Kennedy as a member of the Foreign Claims Settlement Commission.  Dilweg died in Florida in 1968, just prior to his 65th birthday.  He is a member of the Green Bay Packers Hall of Fame, and his grandson, quarterback Anthony Dilweg, played in the NFL from 1989 to 1991 and with the Packers from 1989 to 1990.

The photo accompanying this post is of the Marquette Golden Avalanche preparing to play in the first Cotton Bowl in 1937.

Remembering Professor Wally MacBain

Posted on Categories Marquette Law School, Marquette Law School History1 Comment on Remembering Professor Wally MacBain

Former Marquette law professor Wallace Alexander MacBain, III passed away on July 17, 2009, as the result of complications from a fall at his home in Nashotah, Wisconsin.  Professor MacBain was born in Audubon, New Jersey, on March 21, 1933.  His father, Wallace A. MacBain, Jr., was a member of the Industrial Union of Marine and Shipworkers of America. 

Prof. MacBain graduated magna cum laude from Rutgers Law School in 1959 where he was also a member of the law review.  He spent the early years of his  professional life involved with school desegregation issues and served as a consultant to the United States government on that subject.  He joined the Marquette faculty in 1965 where he remained until his retirement at the end of the 1994-95 academic year.  As a faculty member, he served under Deans Seitz, Boden, DeGuire, and Barkan.

At Marquette, he served for several years as director of admissions (when that was still a position held by a faculty member).  Over the course of his career he taught a wide variety of courses, but his specialties were Constitutional Law, Civil Rights Legislation, and Conflicts of Law.  He was frequently quoted in the Milwaukee newspapers, and his most widely cited article had to do with the insanity defense.

His colleagues remember him as a devoted academic citizen and as a wonderful story teller.  He is survived by his wife as well as two children and two step-children and a number of grandchildren.

Marquette Law School at 100: Remembering Carl Zollman

Posted on Categories Legal Education, Legal History, Legal Scholarship, Marquette Law School, Marquette Law School History, Sports & Law2 Comments on Marquette Law School at 100: Remembering Carl Zollman

Although now largely forgotten at Marquette, Carl Zollman was a prominent American legal scholar of the first half on the twentieth century who spent his entire academic career at this Law School.  Zollman is recognized as the founder of aviation law as an academic discipline, and the case can also be made that he is the founder of sports law as well.  The latter claim is obviously quite appropriate given the Marquette Law School’s current prominence in the field of sports law.

Born in Wellsville, New York, in 1879, Zollman was educated to be a minister in the Missouri Synod of the Lutheran Church.  He was ordained in 1902 and became a pastor at a small church in Williamsburg, Iowa.  In 1906, he moved to Wisconsin, where his father, also a Lutheran minister, was involved with an enterprise known as the Evangelical Lutheran Colonization Company.  For reasons that are not known, the younger Zollman resigned from the ministry later that year and enrolled in the law program at the University of Wisconsin, just a month or two shy of his twenty-seventh birthday.  He received a law degree from Wisconsin in 1909, and he joined a Madison law firm.

Over the next thirteen years Zollman moved between a variety of law and editorial positions in Madison, Chicago, and Milwaukee, all the while publishing extensively.

Although his first major article (which appeared in the 1910 Columbia Law Review) was on a topic in bankruptcy law, most of his early work was devoted to religion and law.  However, beginning in 1919, his work increasingly focused on aviation law.  In addition to a treatise, American Civil Church Law, published by Columbia University Press in 1917, Zollman placed articles in the leading law journals of that era, including the Columbia Law Review (three articles), the Illinois Law Review, the Michigan Law Review (eight articles), the Yale Law Journal (two articles), and the independent American Law Review (five articles).  As a student, Zollman had argued for the creation of a law review at the University of Wisconsin, and, when that publication finally appeared in 1921, its first volume included an article by Zollman on the law of charities in Wisconsin, another of his specialties.  During the First World War, he also served as a consultant to the United States government’s Bureau of War Trade Intelligence.

Zollman began the practice of law in Milwaukee in 1920, and his scholarly productivity caught the attention of Marquette Law School Dean Max Schoetz.  Schoetz, like Zollman, was a former student of Harry Sanger Richards, the Harvard-educated Dean of the University of Wisconsin Law Department who had brought the case method and the Harvard style of legal education to the Midwest.  Schoetz had begun law school at Madison the year before Zollman, so the two were fellow students for two years.

Schoetz had become dean of the Marquette Law School in 1916, and had been engaged in an effort to purge the school’s old reputation as a part-time urban night law school and turn it into what he styled “the most progressive law school in the Midwest.”  Schoetz was responsible for the creation of the Marquette Law Review and for the establishment of the case method as the primary form of instruction at the Law School.  To shore up the Law School’s standing with the Association of American Law Schools, with which Marquette had had a rocky relationship since it was accepted into the organization in 1912, Schoetz revoked the right of night students to earn law degrees in the late 1910’s and then terminated the night program altogether in 1924 to make sure that Marquette would be an ABA-accredited law school.  When the University authorized the appointment of full-time professorships in law in the late 1910’s and early 1920’s, two of Schoetz’s first appointments were Harvard Law School graduate John McDill Fox and Carl Zollman.

Zollman joined the faculty in January 1923 and initially taught Property, Contracts, Agency, and Bills and Notes.  His scholarly productivity only increased after he abandoned the practice of law, and over the next seventeen years, he prepared new editions of two treatises and published 32 law review articles (many, as was the custom of time, in the Marquette Law Review), 30 book reviews, two book chapters, and six books of his own (including two editions of his pathbreaking 1930 casebook on aviation law and his Aviation Law Hornbook, which for all practical purposes established the field to which they were devoted).  In 1930, the Marquette professor was chosen to preside at the First National Legislative Air Conference, which ultimately led to the adoption of the Civil Aeronautics Act of 1938.

Zollman maintained an office on the third floor of the Law School, which then contained the law library and the Grimmelsman (now Eisenberg) Reading Room.  There were no other offices on the third floor, and Zollman developed a reputation as something of a recluse who preferred to work on his research and writing rather than socialize with students and colleagues. One of Zollman’s last students was our colleague Jim Ghiardi, who had Zollman for Bills and Notes during the 1939-40 academic year.

Zollman departed from the law school somewhat abruptly near the end of that year.  Although his obituary in the Wisconsin Bar Bulletin says that he retired “to devote his time to writing law text books,” the real reasons for his decision to stop teaching are unknown.  (Jim Ghiardi recalls that the reasons were a mystery at the time, and that many students assumed that his departure was the result of a falling out with Dean Francis Swietlik, who had become dean of the Law School in 1932.)

Zollman was only 60 when he resigned from the faculty, and he had married for the first time in 1937.  Whatever his reasons for stepping down, Zollman actually published very little after 1940.  He continued to prepare annual supplements for his treatise, The Law of Banks and Banking, but he published no new law review articles or book reviews or treatises.  In September 1944, he was diagnosed with cancer, and he died in Milwaukee the following May.

As for sports law, Zollman’s final two law review articles, both of which appeared in the Marquette Law Review in 1940, were entitled “Baseball Peonage” and “Injuries From Flying Baseballs to Spectators at Ball Games.”  The first was a study of baseball labor relations which focused on the restrictive nature of Organized Baseball’s reserve system, which Zollman actually thought was reasonable, and the second was an early examination of one of the classic problems in sports law.  The two articles, particularly the first, reflect a detailed knowledge of the structure and history of professional baseball and suggest that Zollman must have been a long-time fan.  While further research is necessary to verify this claim, it appears that Zollman’s two 1940 articles were the first sports law articles (as opposed to case comments) to appear in a university-based law review, hence the claim that Carl Zollman can be counted as the “Father of Sports Law.”

Those who imagine that Marquette was just a “nuts and bolts” law school in its early decades have clearly never heard of Carl Zollman.  A nearly comprehensive bibliography of Carl Zollman’s writings, along with a short biographical sketch can be found in a recent article by Robert Jarvis of the Nova Southeastern Law School.  Prof. Jarvis is, like Zollman, a scholar of both aviation law and sports law.  The article is entitled, “Carl Zollman: Aviation Law Casebook Pioneer,” and it appears in volume 73 of the Journal of Air Law and Commerce.  Prof. Jarvis and I disagree slightly in regard to several of the details of Zollman’s career, particularly in regard to his expertise on the subject of baseball.

Marquette Law School at 100: Reconsidering the Law School’s Early Decades

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The Marquette University Law School came into being in 1908 when Marquette University acquired the propriety Milwaukee Law School and a recently established competitor known somewhat grandiosely as the Milwaukee University Law School. (Milwaukee University consisted only of its law school, and the school had only ten students.) These acquisitions were part of a larger project which converted Marquette from a tiny undergraduate college to a full-fledged university.

To mark the 100th anniversary of these events, the Marquette University Law School has sponsored a series of symposia this fall focusing on various aspects of the history of the Law School. The first two sessions, focusing on the Milwaukee Law School and the first quarter century of the Marquette University Law School featured the research of historians Tom Jablonsky, Joseph Ranney, and Gordon Hylton. The third, fourth, and fifth sessions featured former students from different eras of the Law School who eventually entered law teaching as a career. (These included Jim Ghiardi ’42; Frank DeGuire ’60, Jack Kircher ’63, Michael Zimmer ’67, Chuck Clausen ’70, Christine Wiseman ’72, Janine Geske ’75, Tom Hammer ’75, and Phoebe Williams ’81.) The final session, scheduled for November 18, will feature the perspectives of three faculty members who did not attend the Law School but who have been members of the faculty since the 1980’s: Judi McMullen, Dan Blinka, and Peter Rofes.

The symposium has revealed that the Marquette Law School has a rich, complicated history that is largely unknown to most of its current faculty and students. (In this regard, one suspects that Marquette is typical of most American law schools.) Moreover, the symposium has revealed that many of the frequently repeated statements about the history of the Law School — particularly in regard to its formative era — are not quite accurate.

For example, the symposium has revealed that the most important figure in the history of the Law School is almost certainly former Dean Max Schoetz (pictured above), who was dean of the Law School from 1916 to 1927.

There is little recognition of Schoetz’s accomplishments in the Law School today, and those who know about him primarily know that he was killed in a tragic street car accident on the way to the University Commencement ceremony in 1927. In fact, it was Shoetz who converted the Marquette Law School from what was essentially a traditional night law school with a day division into a modern law school. It was Schoetz who established the case method as the primary means of instruction at the Law School; it was under Schoetz’s direction that the Marquette Law Review was created; it was Schoetz who successfully defended Marquette against an effort to expel it from the Association of American Law Schools and who in fact restored Marquette to good standing in that organization; it was Schoetz who secured ABA accreditation for the Law School after it was initially denied that status; it was Schoetz who first installed a prerequisite of college attendance at the Law School; and it was Schoetz who pulled the plug on the Law School’s evening division in 1924.

Moreover, Marquette was much less “Catholic” in its early history than is commonly assumed. While there was always a Jesuit presence in the Law School in the form of the rector, a priest appointed by the president to be part of the Law School administration, none of the original faculty members of the Law School were Roman Catholics. (All were Protestants of one stripe or another.) Although Max Schoetz was Catholic, during his deanship he went out of his way to emphasize that while Marquette University was a Catholic university, the Law School was a non-denominational institution. Schoetz, for example, refused to cancel classes on the Catholic Holy Days of Obligation even though classes were cancelled on those days by other branches of the University, and he saw that these views were published in the pages of the Marquette Law Review. There is evidence that the Law School did become more Catholic in the 1930’s, particularly after the installation of Francis Xavier Swietlik as dean in 1932. Swietlik’s entire education had been provided by the Jesuits — he was a graduate of both Marquette’s college and law school — and he appears to have been somewhat less “ecumenical” than his predecessors Schoetz and Clayton Williams (Schoetz’s former law partner, who was a Quaker). However, under Swietlik, students were still admitted without regard to religion.

Finally, it is often said that Marquette provided an opportunity to attend law school for Jews, Catholics, and African-Americans who otherwise would not have been able to attend. This, it turns out, is only partly true. Milwaukee was an extraordinarily diverse city in the early twentieth century, and its foreign-born population as a percentage of the whole exceeded that of New York City. From the very beginning the Milwaukee Law School accepted anyone who applied for admission, regardless of race, gender, religion, or ethnicity (or prior education, for that matter). However, the same was true for the University of Wisconsin and most of the law schools in Chicago. Although the University of Wisconsin student body was overwhelmingly native born and members of its faculty occasionally made “anti-immigrant” remarks, there is no evidence that any student was ever denied admission to the University of Wisconsin Law School on the basis of race, religion, gender, or ethnicity. The problem for most ethnic Milwaukeeans was the cost of relocating to Madison, not the institution’s discriminatory admissions policies. The Milwaukee Law School, and later the Marquette Law School, provided an opportunity for those living in Milwaukee to study law school in a relatively inexpensive context.

Moreover, the reforms instituted by Dean Schoetz in the late 1910’s and early 1920’s that made the Law School into a mainstream academic law school actually had the effect of reducing access to law school for Milwaukeeans of limited means and in that sense made the Law School less egalitarian. While everyone had been welcome at the Milwaukee Law School as late as 1907, by the early 1920’s, the Marquette Law School was open only to those who had sufficient resources not just to have graduated from high school, but also to have attended first one year, and then two years, of college. This was true even though this pre-law school education was not a prerequisite for admission to the bar in Wisconsin. In contrast, most of the city law schools in Chicago (particularly Chicago-Kent and John Marshall) retained their open admission policies well into the 1920’s.

Podcasts of all the symposium sessions are available here.

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