Marquette Law Review Volume 86 Issue 2 Special Issue in Memory of Howard B. Article 1 Eisenberg Special Issue in Memory of Howard B. Eisenberg Marquette University Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Marquette University, Special Issue in Memory of Howard B. Eisenberg, 86 Marq. L. Rev. (2002). Available at: http://scholarship.law.marquette.edu/mulr/vol86/iss2/1 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. HOWARD B. EISENBERG MARQUETTE LAW REVIEW Volume 86, No. 2 Special Issue 2002 Marquette Law Review Editorial Offices Sensenbrenner Hall, 1103 West Wisconsin Avenue, Milwaukee, Wisconsin 53233 Telephone (414) 288-5143 The Marquette Law Review (ISSN: 0025-3987) is published by the students and faculty of the Marquette University Law School quarterly in fall, winter, spring, and summer. Sub- scription Price: $25 per volume. Single issue price: $10. A different price may apply to spe- cial issues. Periodicals postage is paid at Milwaukee, Wisconsin, and at additional mailing offices. POSTMASTER: Send address changes to Marquette Law Review, Marquette Uni- versity Law School, P.O. Box 1881, Milwaukee, Wisconsin 53201-1881. Cite as: 86 MARQ. L. REV. - (2002). Subscriptions are accepted on a volume basis only, beginning with the first issue. If a subscription is to be discontinued at the expiration of the current volume, written notice should be sent to the Business Editor; otherwise, subscriptions will be automatically re- newed. Back issues and volumes are available from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209. To facilitate bookkeeping, subscribers are requested to include the name and address appearing on the Law Review mailing label when corresponding with the Law Review. One month's notice is necessary for change of address. The Post Office will not forward copies unless additional postage is provided by the subscriber; duplicate copies will not be sent without charge. The Marquette Law Review invites the submission of unsolicited manuscripts. We regret that such manuscripts cannot be returned except upon receipt of postage and handling fees of $2.50 for third class mail or $6 for first class mail. Style conforms generally to The Bluebook: A Uniform System of Citation (17th ed. 2000) and Texas Law Review Manual on Style (8th ed. 1995). Views expressed are those of the authors and do not necessarily reflect the views of the Law Review's advisors, editors, members, or staff. In addition to the rights of fair use granted by law, the owner of the copyright of each ar- ticle published and the Marquette Law Review, except as expressly noted, grant permission for copies of the article to be made for scholarly research and for classroom use if (1) copies are distributed at or below cost; (2) the author of the article and the Marquette Law Review are identified; and (3) proper notice of the copyright is affixed to each copy of the article. MARQUETTE LAW REVIEW Volume 86 Special Issue Number 2 IN MEMORIAM HOWARD B. EISENBERG FOREWORD JOSEPH D. KEARNEY* Howard B. Eisenberg, Dean and Professor of Law at the Marquette University Law School, died unexpectedly at the age of fifty-five on June 4, 2002. There followed an unusual public outpouring of grief and memorials as people with whom Howard had come into contact during his extraordinary career grappled with the fact of Howard's death.' To this we now add this special issue of the Marquette Law Review. The important role of law reviews in the legal profession makes this an especially appropriate memorial to Howard's life and work. It caused me no surprise when, only minutes after our learning of Howard's death, my Northwestern University friend and co-author who was with me at the time, Professor Thomas W. Merrill, told me as I departed, "Be sure to do a memorial issue of the law review." The Editor-in-Chief and Managing Editor of this volume, who had been in those positions for only a short period and had not yet had occasion to produce a single issue, had the same thought when they contacted me Associate Professor of Law, Marquette University Law School. B.A., Yale University, 1986; J.D., Harvard University, 1989. 1. See, e.g., Amy Rabideau Silvers, Howard Eisenberg1946-2002; Helping Others Was a Lifelong Goal for MU Law Dean; Colleagues Remember Caring Attorney, MILWAUKEE JOURNAL SENTINEL, June 5, 2002, at IA; Todd Richmond, Marquette Law Dean Dies, CAPITAL TIMES, June 5, 2002, at 3A; James Janega & Monica Davey, Howard B. Eisenberg, 55; Lawyer Led Priest Sex-Abuse Panel, CHICAGO TRIBUNE, June 6, 2002, at 9; Editorial, Milwaukee Suffers a Big Loss, MILWAUKEE JOURNAL SENTINEL, June 6, 2002, at 18A; Joseph D. Kearney, Eisenberg:A Hero Devoted to Justice, MILWAUKEE JOURNAL SENTINEL, June 6, 2002, at 19A; Editorial, Eisenberg Was Model Wisconsin Citizen, WISCONSIN STATE JOURNAL, June 7, 2002, at A14; Leslie Schmerin, Letter to the Editor, Howard Eisenberg: Law School Dean Had Open-Door Policy, MILWAUKEE JOURNAL SENTINEL, June 7, 2002, at 18A; Ed Garvey, Two Men Who Fought for What's Right Inspire Us, CAPITAL TIMES, June 11, 2002, at 9A; Jim Stingl, Letters to Inmates Show Dean's Devotion, MILWAUKEE JOURNAL SENTINEL, June 16, 2002, at 1B; George C. Brown, Raising the Bar, WISCONSIN LAWYER, July 2002, at 3; Colleen D. Ball, Of Habeas Law and Pink Ballerinas, WISCONSIN LAWYER, July 2002, at 4. MARQUETTE LAW REVIEW [86:203 the next day. Since then it has been my privilege to work with the editors of the Law Review to secure the contributions that comprise this special issue and to prepare it for publication. It is appropriate that there be a memorial issue of the Marquette Law Review to honor Howard B. Eisenberg, almost apart from the fact that he was the Dean of the Law School at the time of his death. This Law Review was especially important to Howard. It is the journal that published his first piece of legal scholarship in 1972,2 his last piece of legal scholarship earlier this year (some thirty years later),3 and pieces in between these bookends.4 Beyond all this, however, Howard Eisenberg had an appreciation of the role of a law review in the intellectual life of a law school. Thus, he supported this Law Review in its undertakings, taking care in the appointment of its faculty advisors, raising funds to move and expand its office, and supporting essentially any request for improvement that the editors of the journal made. Less tangibly, he conveyed the sense that the Law Review has a unique role to play within the institution and the legal profession.5 It is thus with great pride and simultaneous sadness that the editors of the Marquette Law Review present this special issue. A word or two of further explanation may be appropriate, as this issue deviates from some conventions. In particular, the editors determined that the 2. Howard B. Eisenberg, Post-Conviction Remedies in the 1970's, 56 MARQ. L. REV. 69 (1972). 3. Joseph D. Kearney & Howard B. Eisenberg, The Print Media and Judicial Elections: Some Case Studies from Wisconsin, 85 MARO. L. REV. 593 (2002). 4. Howard B. Eisenberg & Bruce G. Fuestal, Pre-Trial Identification: An Attempt to Articulate Constitutional Criteria, 58 MARQ. L. REV. 659 (1975); Howard B. Eisenberg, The Importance and Place of the Wisconsin Reports on the Delivery of Legal Services and Legal Education, 80 MARO. L. REV. 705 (1997). 5. I recall several years ago when the then editor-in-chief of the Law Review made the mistake of setting the date of the annual law review dinner without checking the Dean's calendar and thereby scheduled it on a date that Howard was to be out of town, visiting alumni. Although there may have been some events at the school that Howard would not have regretted missing, this mix-up did not play well. Suffice it to say that, as I understand it, one of the few instructions given by the outgoing editor-in-chief over the past several years to his or her successor has been to check the Dean's calendar in advance of scheduling the law review dinner. Indeed, one of my regrets is that this year's new members will not be able to hear Howard speak at the dinner in the spring, where he invariably allowed that the members of the law review were "our best and our brightest." Ever sensitive to his broad role, Howard would also quickly explain that various other students were "our best and our brightest, too," but he somehow was able to do so in a way that did not retract (or even detract from) the first statement. If those statements seem incompatible, it is only because perhaps I lack Howard's ability to articulate the fine Jesuitical reasoning necessary to reconcile them. 2002] IN MEMORIAM HOWARD B. EISENBERG approach, sometimes seen, of a few commemorative essays at the beginning of an ordinary issue of the journal would be insufficient here. This decision derives from Howard's extraordinary legal career. The organization of these essays is, in its essence, chronological and relates to Howard's career. Thus, the essays start with some reflections about Howard even before he went into law (pp. 223-29), continue with observations about his time as a law student at the University of Wisconsin (pp.