Then & Now: Stories of Law and Progress

Chicago-Kent College of Law Scholarly Commons @ IIT Chicago-Kent College of Law

125th Anniversary Materials 125th Anniversary

2-23-2013

Then & Now: Stories of Law and Progress

Lori B. Andrews Chicago-Kent College of Law, [email protected]

Sarah K. Harding Chicago-Kent College of Law, [email protected]

Follow this and additional works at: https://scholarship.kentlaw.iit.edu/docs_125

Part of the Legal Commons, Legal Education Commons, and the Legal History Commons

Recommended Citation Andrews, Lori B. and Harding, Sarah K., "Then & Now: Stories of Law and Progress" (2013). 125th Anniversary Materials. 14. https://scholarship.kentlaw.iit.edu/docs_125/14

This Article is brought to you for free and open access by the 125th Anniversary at Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in 125th Anniversary Materials by an authorized administrator of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. Then & Now: Stories of Law and Progress Then & Now: Stories of Law and Progress On the Occasion of the 125th Anniversary of IIT Chicago-Kent College of Law

Lori Andrews and Sarah Harding Editors Then & Now: Stories of Law and Progress On the Occasion of the 125th Anniversary of IIT Chicago-Kent College of Law

Layout Design Daniel Saunders

Cover Design Kym Abrams Design

Cover Photos Back cover, left to right: “First woman jury, Los Angeles” (p. 66); Grand Pacific Hotel, LaSalle St. and Jack- son Blvd. (p. 94); John Montgomery Ward (p. 44). Front cover, left to right: “Rookery Building, exterior” (p. 16); Robert S. Abbott, 1899 graduate of Kent Col- lege of Law, undated photo courtesy of the Chicago Defender, image cropped; Law Library of the Library of Congress in the U.S. Capitol (p. 88). Background: Current photo of 10th Floor Reading Room, Library, Chicago-Kent College of Law. Table of Contents

Introduction 1

CHICAGO’S “GREAT BOODLE TRIAL” 4 Todd Haugh

THE ROOKERY BUILDING AND CHICAGO-KENT 14 A. Dan Tarlock

INVENTING LEGAL AID: WOMEN AND LAY LAWYERING 18 Felice Batlan

WHAT’S A TELEGRAM? 26 Henry H. Perritt, Jr.

PRIVACY AND TECHNOLOGY: A 125-YEAR REVIEW 34 Lori Andrews

JOHN MONTGOMERY WARD: THE LAWYER WHO TOOK ON BASEBALL 44 Christopher W. Schmidt

U.S. ANTITRUST: FROM SHOT IN THE DARK TO GLOBAL LEADERSHIP 52 David J. Gerber

THE LEGACY OF IN RE NEAGLE 60 Harold J. Krent

THE CHANGING COMPOSITION OF THE AMERICAN JURY 66 Nancy S. Marder

CRIMINAL PROCEDURE AND THE SUPREME COURT—THEN AND NOW 76 David Rudstein A “PROGRESSIVE CONTRACTION OF JURISDICTION”: THE MAKING OF THE MODERN SUPREME COURT 80 Carolyn Shapiro

125 YEARS OF LAW BOOKS, 1888–2013 88 Keith Ann Stiverson

CHICAGO-KENT: 125 YEARS AND COUNTING 94 Ralph L. Brill Introduction

hen students entered the chambers of Judge Joseph Meade Bailey in 1888 for the educational adventure that was later to become known as Chicago-Kent College of Law, the entire English and WAmerican legal opus fit in 600 volumes. Chatter inside the chambers might have centered on the infamous “Great Boodle Trial,” one of the first public corruption trials in Chicago, or the new Rookery Building being built just a block north on LaSalle Street. More serious discussion might have turned to basic questions about the Constitution and the highest court of the land. Should the Bill of Rights be applied to the States? Should everyone have the right to have their cases heard by the U.S. Supreme Court? Outside the judge’s chambers, students were faced with a world of new technologies (the telegram, the portable camera, skyscraping architecture) and fast-evolving legal questions. Rapid industrialization and the monopolistic tendencies of major enterprises, particularly the railroads centered in the Midwest, were pushing Congress towards the passage of a path breaking “anti-trust” law. Women were permitted to enroll in the early law classes held in Judge Bailey’s chambers and they were increasingly involved in providing legal aid to the poor through the Protective Agency for Women and Chil- dren, but were denied the right to sit on juries. And while Albert Goodwill Spalding, owner of the Chicago White Stockings, and John Montgomery Ward, the nation’s most famous shortstop, were battling over player labor issues, post–Civil War tensions were still simmering in a scandalous case that pitted California against the President. Since those early classes in the late nineteenth century, IIT Chicago-Kent graduates have mastered the law and served their clients in all 50 states and around the world. They have joined big firms, formed their own firms, -cre ated businesses, been appointed to the bench, served as legislators, argued in the Supreme Court, joined the media, and won awards for their ideas and their representation. They have changed the law and changed the world. And now, 125 years after the law school was founded, we celebrate the tenacity and success of this great Chicago institution and its alumni with tales spanning 125 years of law and change.

Lori Andrews and Sarah Harding

1 2 •

3 4 Then & Now: Stories of Law and Progress

“The Boodle Aldermen: Each sat in his particular oven,” cartoon by Art Young, 1892.

CHICAGO’S “GREAT BOODLE TRIAL” Todd Haugh

n late-August 1887, as some of Sheriff Matson, please accept my Chicago-Kent College of Law’s thanks for the bath, but I have first students were beginning concluded it in British waters. Oh Itheir studies in the chambers of Ed, I wish you were here with me! Judge Joseph Bailey, a bottle carrying Goodbye till we meet! a handwritten note bobbed across Lake Michigan. Found on the shores The note’s author was William of Grand Haven, Michigan, the bot- J. McGarigle, and he had reason to tle and its contents were rushed to gloat. A former Cook County Com- a reporter for the then-fledgling missioner and warden of the Cook Chicago Daily Tribune newspaper. County Hospital, McGarigle had Thrilled to have scooped the com- successfully fled police custody af- petition, the Tribune published the ter being convicted on corruption note the next day as an exclusive: charges and sentenced to three years in prison. McGarigle escaped by To my friends in Chicago: A duping the Sheriff of Cook Coun- few more hours and I will be safe ty, Canute Matson, into allowing through the straits and in Canada. him a visit with his wife and kids at Todd Haugh 5 their Lakeview home. After asking McGarigle, Ed McDonald, and to take a bath to “freshen up,” Mc- Big Mike McDonald form the nu- Garigle slipped out a window, made cleus of a fantastic story of proudly his way to a schooner docked along corrupt politicians, seemingly-righ- the south branch of the Chicago Riv- teous reformers, bag men, kidnap- er, and sailed out into the lake and pers, and suckered citizens, revealed through the Straits of Mackinaw to through the testimony of the “Great Canadian waters. Boodle Trial” of 1887. The “most Slipping past the patrol boats, sensational corruption scandal of knowing he was about to be a free the late nineteenth century,” the man (Canada had no extradition Boodle Trial offers a glimpse into the treaty with the U.S. at the time), Mc- crooked machine politics of early Garigle must have chuckled as he Chicago and the equally underhand- threw the bottle overboard. When ed tactics of overzealous reformers. found, the note would not only put Called by some a “corrective anti- a thorn in the backside of Matson dote” to “[a]n epidemic of fraud,” and the entire sheriff’s office, but it the trial helped galvanize the reform would surely put a smile on the face movement in Chicago, proving that of his friend, Edward McDonald. even well-connected Chicago politi- The “Ed” from the note, McDonald cians could be brought to justice. At was McGarigle’s co-defendant, fel- the same time, it demonstrated the low county commissioner, and now lengths—some say necessary; oth- former cellmate. Keeping McDonald ers say illegal—reformers would go in good spirits hadn’t been easy as in the pursuit of their goals. Finally, the summer humidity in their cells the trial reminds us of just how en- climbed and a transfer to the Joliet trenched corruption is in Chicago Penitentiary loomed, but McGari- politics. As dramatic as it was at the gle did his best. The truth was, Ed time, the trial may have been the McDonald’s happiness mattered. As beginning, not the end, of Chicago’s a long-time board member and the legacy of corruption. Cook County Hospital’s engineer, he knew every detail of the swin- hicago’s Great Boodle Trial, dles that landed them and the other Cwhich began on June 4, 1887, was county commissioners in jail. But actually two “prolonged and tedious more importantly, he was brother to trials.” The first trial pitted State’s Michael “Big Mike” or “King Mike” Attorney Julius Grinnell against McDonald, boss of the Chicago McGarigle and Ed McDonald; the Democratic Machine and the city’s second was against over a dozen first politician gangster. other commissioners and private contractors in an “omnibus” pro- 6 Then & Now: Stories of Law and Progress ceeding. Both cases centered around ews, cousins, and friends, all using the same allegations of public cor- taxpayer money. The asylum’s drug ruption. According to prosecutors, store and infirmary served as the a ring of crooked commissioners “clubhouse” for the ring of com- took control of the Cook County missioners. Board sometime in the early 1880s. James “Buck” McCarthy joined If a company wanted to do business the county board in 1884. A high with the county, it had to pay the school dropout, former boxer, and ring a “commission” for the priv- meat packer in the Chicago stock- ilege. What we today call a “pay to yards, McCarthy’s main qualification play” scheme, this arrangement al- for being a commissioner was his lowed dishonest commissioners and friendship with Big Mike McDon- business owners to get rich off coun- ald. McCarthy’s protégé was Charles ty contracts secured through bribes Lynn, who served as a deputy sheriff and inflated by padded invoices. Ed and commissioner. Lynn admitted McDonald helped organize the ring to joining the board “solely for the and set up the schemes, while Mc- money he could extort,” recounting Garigle, acting as the bag man, col- his “scorn” for Chicago industrialists lected the bribes and kickbacks—the who refused to pay the ring its ex- “boodle.” Everything led back to Big pected commissions. Charles Frey, Mike McDonald, the man who con- another McDonald-controlled com- trolled Chicago’s Democratic Party, missioner, was warden of the coun- all county patronage, and the county ty poor house. He bought silk un- board. derwear costing eighty-five dollars, A sampling of the boodlers and charging it to the county as a bale of their schemes, recounted in vivid muslin. detail through the two trials, shows And then there was McGarigle. the power of early Chicago machine Warden of the county’s 600-bed hos- politics and the depth of the com- pital for the poor, McGarigle’s office missioners’ individual greed. There was adorned in the finest import- was Harry “Prince Hal” Varnell, a ed damask drapes. China spittoons gambler and saloon owner appoint- flanked his office door. He even had ed warden of the Cook County In- a private horse stable built on hospi- sane Asylum. Varnell promptly set tal grounds for his personal use. In up a private office and home on the one of the more farcical accounts, it grounds of the asylum and outfit- was reported that McGarigle had 24 ted them with “Persian rugs, Brus- lightning rods mounted on a hospi- sels carpets, and lace curtains.” He tal tool shed—one “on every chim- ordered expensive foods and paid ney, every alcove, every corner, and for the living expenses of his neph- every crevice.” The lightning rods Todd Haugh 7

Several men sitting on benches along a hallway in the Cook County Hospital, 1911, DN-0008937, Chicago Daily News negatives collection, Chicago History Museum. were installed by Varnell, a business ot surprisingly, the boodlers’ agent of the manufacturer. Nlargess eventually garnered As the boodlers siphoned off tax notice. In 1886, the county budget dollars to fund their lavish offices faced a staggering one million dollar and private dinners, county patients deficit (approximately 25 million in suffered. In the Cook County Hos- today’s dollars), which was directly pital’s contagious disease ward, “a tied to the reckless spending of the cramped, fetid, 18- by 40-foot room,” corrupt commissioners. This rallied patients fought for space on only the few reform-minded commis- six beds, often lying side by side on sioners on the county board, includ- the floor. Unlike the $3.00-a-dozen ing J. Frank Aldrich, who was also a strawberries and grapes Varnell or- member of the reform-based Union dered for his party guests at the club- League Club of Chicago. The Union house, patients were served spoiled League Club joined causes with the meat. The nurses and orderlies often Citizens’ Association, another re- showed up to work drunk. Similar form group, whose membership in- conditions were found at the asylum cluded George Pullman, one of the and the poor house. Newspapers re- wealthiest and most powerful in- ported that “the poor, the lunatics, dustrialists in the country. Pullman and the sick have fared none too and the other reformers brought suit well, but those who have been hired against the county board to enjoin to take care of them live in luxury.” it from entering into more dubious 8 Then & Now: Stories of Law and Progress contracts—the first was to drill an him in the toast was a county com- unnecessary artisan well at the poor missioner. Two Mooney and Boland house—thereby beginning the “re- detectives, who had been surveil- form movement in county affairs.” ling Schneider, witnessed the toast. Despite the laudable goal of When Schneider left the tavern, the ending the “epidemic of fraud” in detectives followed. Schneider never county politics, the reformers were made it home that night. Disappear- not exactly above reproach in their ing with him were his business pa- tactics. In fact, some of the reform- pers, including the false invoices he ers’ methods rivaled those of the wrote to pad county contracts and boodlers. After filing their civil evidence of the commissions he paid suit, the reformers funded a private to secure county work. prosecution of the ring of com- The ring of commissioners missioners. Of the $150,000 raised learned through their own private (over three and a half million dol- detectives that Schneider was being lars today), at least $30,000 went to held by the reformers. Based on a the Mooney and Boland Detective bogus warrant issued for Schnei- Agency for the purpose of review- der’s arrest, the commissioners sent ing county invoices and conducting nine policemen to recapture him, non-stop surveillance of county con- but they were turned away after a tractors suspected of paying bribes. struggle. Schneider, possibly bound When the invoices the detectives and gagged in a second floor room, had access to didn’t show evidence of could hear the “ruckus” below as the bribes, the reformers had ones that men fought over him. He turned did stolen from a county safe. The witness for the prosecution soon “confiscated” documents helped lead after and fled out of state, escorted to a raid on the commissioners’ club- (some might say restrained) by two house, which uncovered additional in- private detectives. criminating evidence. The reformers may have felt jus- Now all the reformers needed tified using such tactics to secure was a witness. A corrupt contrac- evidence against the boodlers given tor, a plumber named Nic Schnei- their control over the jury system. der, gave the reformers what they At the time, the grand jury—the were after. Drinking one night at Big only body that could issue an indict- Mike McDonald’s four-story Clark ment formally charging a defendant Street gambling parlor and saloon, with a serious crime—was selected “The Store,” Schneider loudly toasted by the county commissioners. Each to “county contracts,” saying, “I am commissioner wrote two names of rich and by gracious in two years I prospective jurors on blank cards, shall be as rich as anybody.” Joining which were then drawn from a hat. Todd Haugh 9 When a new grand jury was chosen, systematically robbed the taxpay- one of the corrupt commissioners ers of this county for a long time.” simply picked cards that had been Plumber Nic Schneider became the dog-eared by the others in the ring. prosecution’s star. Notwithstanding This system, though rudimentary, accusations of perjury by the defen- had been used effectively to shield dants, Schneider’s testimony, sup- machine politicians from prosecu- ported by his false invoices, showed tion for over a decade. In fact, when that Ed McDonald was connected asked about the possibility of indict- with four firms that overcharged the ment, Buck McCarthy commented, county for goods and labor and that “There are only two powers over the McGarigle collected and disbursed [county] board, one is the Almighty, the bribes and stolen money. Both the other the grand jury, and we get defendants testified in their own de- to draw the grand jury.” fense, but offered contradictory tes- McCarthy’s confidence was mis- timony “of the flimsiest character.” placed, however. After reformist On June 18, 1887, the jury found commissioner Aldrich witnessed the both men guilty. Later that summer, loaded draw, the reformers were able the “other dominoes fell” during the to convince a judge to empanel a omnibus trial. When the verdicts special grand jury. The special grand were read, “the ball game at White jurors, “honest and true men who Stocking Park was interrupted while refused to be bribed or intimidated,” the people cheered.” The penalties promptly indicted the ring of com- for most defendants were substan- missioners and private contractors tial, ranging from thousands of on 106 counts of public corruption. dollars in fines to three years in the The reformers had thus broken the penitentiary for McGarigle and Ed “power of puppet master [Big Mike] McDonald. However, a few received McDonald and his commissioners smaller fines after agreeing to help to control the selection of grand ju- the prosecution and paying restitu- ries that had protected them from tion. Buck McCarthy, who was fined criminal indictments.” just $1,000 amid allegations that he After unsuccessfully moving for had influence over one of the jurors, a change of venue on the grounds told reporters that he was “disap- that the prosecution had been im- pointed and disgusted” with the ver- properly funded by private citizens, dict. (McCarthy went on to be elect- the Boodle Trial was underway. The ed to the Chicago City Council.) evidence against McGarigle and Of course, McGarigle’s flight to Ed McDonald was overwhelming. Canada meant he was never ful- “Witness after witness was placed ly brought to justice. After living on the stand to prove that [they] had in Banff, British Columbia for two 10 Then & Now: Stories of Law and Progress years where he bought into a livery Assistant States Attorney John Bens- business and invested in a hotel, he ley explained it this way: “In Mike cut a deal and returned to Chicago. McDonald’s case, an indictment He eventually ran a tavern in the could not be framed to hold. When Clark Street vice district controlled a man lays all his plans coolly and de- by Big Mike McDonald. Ed McDon- liberately with the express purpose, ald didn’t fare as well. While awaiting apparently, of preventing any tracing transfer to the penitentiary, his nine- of crookedness to his door it is an ex- year-old son died after falling from a tremely difficult thing to get him with fire escape at the Cook County Hos- legal evidence.” Big Mike explained it pital while playing with friends. The a little differently, though the senti-

fall was caused by loose boards that ment was the same. Joking to report- hospital workers had failed to secure ers, he said, “[A]fter it’s all over I show or seal off. Afterward, Ed McDonald ’em a pretty clean pair of heels and I’ll “lapsed into a deep depression.” He do it this time or I’m very much mis- served his time in Joliet but was ef- taken.” He added, “Most everybody’s fectively finished in Chicago politics. a boodler nowadays, you know.” And what of Big Mike McDon- Big Mike McDonald remained on ald, the boss of the boodlers and the top of the Democratic Party for more architect of their schemes? He was than a decade longer, controlling an never charged or tried as part of the empire of gambling parlors, saloons, Boodle Trial; the grand jury didn’t and prostitution houses, while di- even vote on whether to indict him. recting city and county patronage.

“The Boodlers Convicted,”New York Times head- The Boodle Trial did not slow his op- line, June 19, 1887. Facing: Photo of Michael “Big erations. The same year of the trial, Mike” McDonald and another man, 1907, DN- he was reported to have ordered city 0005146, Chicago Daily News negatives collection, Chicago History Museum. aldermen under his control to ap- Todd Haugh 11 prove a $200,000 contract for apply- time, no politician had received such ing “preserving fluid” to City Hall. harsh punishment for “boodling.” The fluid, which The commission- was “guaranteed ers’ convictions, to keep the state- even for those ly building intact receiving only for a hundred fines, also meant years,” washed they would be away in the rain automatically re- two days later. moved from the The World’s Fair county board. that took place in By “turn[ing] the Chicago in 1893 rascals out of put more millions into Big Mike Mc- the County Board and brand[ing] Donald’s pockets as city contracts them forever as convicted public swelled and armies of tourists gam- swindlers,” the trial ended most of bled and drank at The Store. It was at the commissioners’ political careers, this time that McDonald supposedly and more importantly, Big Mike Mc- coined the phrase, “There’s a sucker Donald’s control over county con- born every minute.” Big Mike retired tracts. TheTribune called the trial to his Ashland Boulevard mansion in “the most successful assault on pub- the early 1900s, content to let the next lic crooks to that date.” generation of boodlers and gangsters More broadly, the trial and the try its hand in Chicago. scandal leading up to it galvanized Chicago’s reform-minded citizens, he legacy of the Great Boodle kick-starting the city’s reform move- TTrial and the reform efforts it ment. To successfully investigate epitomized is decidedly mixed. In and prosecute the ring of commis- some ways, it was a significant vic- sioners, two reformist groups—the tory for early Chicago reformers. Union League Club and the Citizens’ The Boodle Trial was a very public Association—joined forces. The alli- demonstration that the city’s ma- ance brought activist industrialists, chine politicians—at least most of politicians, and judges together, and them—were not above the law. All allowed for great sums of money to told, nine commissioners and coun- be raised to combat corruption. The ty contractors who faced trial were Boodle Trial was just the first success convicted and sentenced to two of the reformers. After the trial end- years or more in jail; four others were ed, reformers pressured the state convicted and fined the maximum legislature to review how jurors were allowed under statute. Up to that selected in Cook County, leading to 12 Then & Now: Stories of Law and Progress a revamped jury system in which Commissioner, William Beavers, county commissioners no longer awaiting trial for allegedly failing to selected grand juries. This allowed pay taxes on money he took from prosecutors to bring public corrup- his campaign fund (and used to tion cases under a fair system. With pay gambling losses, among other the help of a press corps intent on things), has accused prosecutors of publishing more exposés like those indicting him as retribution for re- leading up to the Boodle Trial, refusing to wear a wire against John formers went on to successfully in- Daley, a former commissioner who vestigate and prosecute bail-bond is brother to Richard Daley, Chica- fraud and ghost payrolling. Some of go’s longest-running mayor. these reform movements continue The best measure of the Boodle today. Trial’s impact is, of course, whether Yet, to achieve their goals, the it changed the culture of corruption reformers became separated from in Chicago politics. On that score, the corrupt commissioners by only the trial has had little lasting impact. a matter of degree. While calling for The headlines of today’s Tribune the prosecution of Big Mike McDon- read much as they did 125 years ago. ald—“the managing and directing Month after month, colorful Chica- thief whose influence has cast such a go politicians fight indictment (some blighting shadow over public affairs in from their county board seats) for this county”—reformers kidnapped schemes that would get an approving witnesses, stole documents from a nod from Big Mike McDonald. Bea- county safe, and privately funded the vers is the most recent, and possibly criminal indictments of their adver- the most odd (after being indicted, saries. The reformers’ “ends justifies he called the United States Attorney the means” rationalization, which prosecuting him a “rooster with no they undoubtedly employed, rings nuts”), but he is by no means alone. as hollow as McGarigle’s defense that On its way to earning the distinc- the prevailing system was at fault for tion of being the most corrupt city his crimes—that he just went along in the country, Chicago has seen five with the boodling because everyone of its governors imprisoned, over 30 else did. While there are safeguards aldermen indicted and convicted, in place today to guard against the and countless other public officials use of such “impure methods,” many investigated. At the top of that list is contend the prosecutions of recent former Governor Rod Blagojevich, Chicago politicians have been mo- who is currently serving a 14-year tivated less by enacting genuine re- prison term for attempting to auc- form and more by furthering polit- tion off President Barack Obama’s ical gain. One current Cook County vacant United States Senate seat for Todd Haugh 13 personal gain. Wiretaps of Blagoje- system prevailed in heaven, there vich recorded him saying, “I’ve got would be boodlers. The tempta- this thing and it’s f—ing golden, and tion is too great. . . . Men are but . . . I’m just not giving it up for f—in’ human[.]” ◆ nothing.” It could be argued that these Sources and Further Reading prosecutions even taking place, ■ Richard C. Lindberg, The Gambler King of Clark some against officials at the highest Street: Michael C. McDonald and the Rise of Chica- go’s Democratic Machine 121–135 (2009). levels of government, proves that the ■ James L. Merriner, Grafters and Goo Goos: Cor- Boodle Trial has had a lasting im- ruption and Reform in Chicago, 1833–2003, at 50–56 (2004). pact—the trial showed generations ■ Thomas J. Gradel & Dick Simpson,Patronage, of reformers that political corruption Cronyism and Criminality in Chicago Government could be combated in Chicago in a Agencies, Anti-Corruption Report No. 4 (2011), available at http://www.uic.edu/depts/pols/Chica- meaningful way. Others will more goPolitics/anticorruption.htm. cynically say that for every crooked politician prosecuted, another will take his place, and that the most Todd Haugh graduated with honors well-connected crooks—the crafty from Brown University and received his bosses like Big Mike McDonald—al- law degree cum laude from the Univer- ways find a way to operate above the sity of Illinois College of Law. Before law. While the truth is likely some- coming to Chicago-Kent, he served as a where in between, the Great Boodle Supreme Court Fellow at the Supreme Trial reminds us most of all that as Court of the United States and practiced white collar criminal defense at Win- long as there is boodle, there will be ston & Strawn LLP and Stetler, Duffy & men trying to take it. As McGarigle Rotert, Ltd. Professor Haugh’s research remarked a few months before his interests include white collar crime and conviction, “I don’t care if the same sentencing. 14 Then & Now: Stories of Law and Progress

Rookery Building, Historic American Buildings Survey, Library of Congress. THE ROOKERY BUILDING AND CHICAGO-KENT A. Dan Tarlock

hicago-Kent traces its ori- sustain Chicago as a world city, thus gin to the incorporation of making it an attractive and exciting the Chicago College of Law in place to practice law to the benefit C1888. Chicago-Kent’s founding coin- of all law schools in Chicago in- cided with the opening of the Rook- cluding Chicago-Kent. ery Building designed by the preem- The Rookery is now a classic ex- inent architectural firm of Burnham ample of the first school of Chica- and Root. There is a direct connec- go architecture which helped shape tion between the now iconic Rook- modern Chicago and continues to ery Building, located at Adams and make Chicago a special place, de- LaSalle, and the law school building spite decades of desecration of this further west on Adams. There is also rich architectural heritage. The Great a more indirect but interesting con- Fire of 1871 destroyed the Loop and nection between the first and second the newly developed residential ar- schools of Chicago architecture and eas to the north. It did, however, nar- Daniel Burnham’s vision of the mod- rowly miss the lumber yard which ern city. Architects, but especially occupied the site of the current law Daniel Burnham, helped make and school. Architects were immediately A. Dan Tarlock 15 attracted to Chicago because of the partially load-bearing, but the inte- opportunities to rebuild the city. rior used the state-of-the-art steel The skyscraper was perfected here, frame, developed by William Jenny, and this technological innovation, to permit it to become the tallest along with the telephone and Otis building in Chicago. The building Elevator, created the modern office is a mix of early modernist and ret- city by separating industrial pro- rospective styles. The walls of large duction from its administration. By windows allowed maximum use of 1888, Chicago, along with Buenos light because of the dimness of the Aires and Sao Paulo, was emerging 20 watt bulbs powered by Common- as a major example of a modern city wealth Edison’s first loop generating unconstrained by any significant ur- station across the street. The exterior ban past. The city had grown from building is also an example of Chi- about 100,000 persons when Lin- cago Romanesque. This style, whose coln was nominated for President, distinctive feature was the arch, was a few blocks from the current law based on pre-Gothic Romanesque school, to one million inhabitants architecture in southern France. Ini- and counting. tially adopted by Frank Richardson Chicago had surpassed Philadel- in Boston, the great Louis Sullivan phia and became America’s second brought it to Chicago. The Auditorium city. Chicago’s location as a rail and Theater, which opened in 1889, is water hub enabled it to become the the best surviving example. processing center for the agricultural After the elite lost interest in bounty of the Midwest and Great “modern architecture,” innovation Plains as well as the distribution cen- languished in Chicago until the ter for this region. For a brief period post–World War II modernist school of time, wealthy Chicagoans used emerged. Until the 1980s, Post-War their new wealth and power to pa- Chicago architecture was a monu- tronize a progressive group of archi- ment to Mies van der Rohe. Fleeing tects to build modern, forward-look- Nazi Germany, he ultimately settled ing cathedrals of commerce. in Chicago, headed IIT’s then De- A group of Chicago architects, partment of Architecture, designed led by Dankmar Adler, Louis Sul- its landmark campus, and more livan, John Root, Daniel Burnham generally helped make the German and later Frank Lloyd Wright, de- Bauhaus the dominant form of post– veloped a distinctive style of archi- World War II Chicago architecture. tecture geared to the technological The law school’s current building, innovations that were changing the which opened in 1992, is a synthesis nature of business. The Rookery is of the two great schools of Chica- a perfect example. The walls were go architecture. Its scale and facade 16 Then & Now: Stories of Law and Progress

“Rookery Building, exterior,” photo from 1891, Images of America Collection, Frances Loeb Library.

recall the post-fire Prairie School, the Encyclopedia of Chicago explains, especially the Rookery Building. “believed that the sometimes frantic However, the incorporation of an quest for ‘American-ness’—the ob- arch into early designs was rejected session with New World originality as disproportionate to the building. and horror of all things Europe- Not only is it about the same height, an—was itself a kind of insecurity, it was designed by Holabird and and that maturity would consist in Root, the successor firm to Burnham an acknowledgment that America and Root. The relatively austere stone was not culturally isolated from the facade, rather than a pure steel and rest of the world. Burnham and his glass frame characteristic of Mies’s associates saw the United States as main campus buildings, echoes the a rightful heir to the traditions of Rookery in both style and underly- Western culture.” ing philosophy. And, like the law, it Daniel Burnham’s larger legacy both respects the past and looks to for Chicago and its vibrant legal the future. Burnham rejected the ar- community is twofold. First, Prairie gument of Louis Sullivan and Frank School architecture both symbolized Lloyd Wright that America needed Chicago’s emergence as a world city a distinctive style of architecture. in the late nineteenth and early twen- Rather, “Burnham and his allies,” as tieth century by allowing it to drain A. Dan Tarlock 17 the surrounding region of both re- dard housing, rampant corruption, sources and talent, legal and other- and juvenile and gang violence have wise. This legacy along with Burn- provided endless opportunities for ham’s partially realized 1909 plan lawyers and future lawyers trying to also helped Chicago to evolve into a obtain justice for individuals caught major financial center, after its origi- in the net of poverty, corruption, nal industrial base of Chicago eroded brutality, and discrimination equally after World War II. The concentra- characteristic of Chicago, including tion of law firms to serve Chicago’s a young Columbia University grad- economy provided employment for uate (and Chicago-Kent commence- thousands of lawyers. ment speaker), Barack Obama. ◆ The second legacy of Burnham’s plan is much darker but also benefit- ted Chicago lawyers. The much hailed Sources and Further Reading ■ William Cronon, Nature’s Metropolis: Chicago plan envisioned Chicago as a great and the Great West (1987). city in the mold of Paris or Imperial ■ Encyclopedia of Chicago, www.encyclopedia.chi- cagohistory.org. Vienna. But the plan primarily con- ■ George A. Larson, Jay Pridmore & Hedrich centrated on a magnificent core and Blessing, Chicago Architecture and Design (2005). ■ Donald L. Miller, City of the Century: The Epic of lakefront for the wealthy. The un- Chicago and the Making of America (1997). ruly, poor, polluted, and dangerous ■ Carl Smith, The Plan of Chicago: Daniel Burnham rest of the city, home to the waves of and the Remaking of the American City (2006). immigrants from around the world and migrants from other parts of the country, was depicted only by end- A. Dan Tarlock received his undergraduate and law degrees from Stanford less low rise, uniform blocks. In other University. He joined the Chicago-Kent words, the city that actually existed faculty in 1982 after teaching at the Uni- was largely ignored. It was left to versity of Kentucky and Indiana Uni- others to deal with what was in fact versity, Bloomington. Professor Tarlock happening on the streets of Chica- is one of the founders of the law school’s go. In the twentieth century, Chi- Program in Energy and Environmental Law. He has taught energy law, environ- cago’s continuing attempts to deal mental law, land use control, property with urban problems such as racial and water law and has published widely segregation, urban poverty, substan- in these fields. 18 Then & Now: Stories of Law and Progress

The Legal Aid Society, established in 1905 from a merger of PAWC and the Legal Aid Bureau, photo by Charles J. Bernauer, 1919, ICHi-36161, Chicago History Museum. INVENTING LEGAL AID: WOMEN AND LAY LAWYERING Felice Batlan

hen we think of extraor- and indirectly. In 1876, Caroline dinary nineteenth cen- M. Brown, a wealthy woman and tury legal institutions mother of two children, founded Wand innovations, we generally do the Chicago Women’s Club (CWC) not think of women. In fact, in 1875, by inviting 21 women to meet in the United States Supreme Court her living room to learn about and ruled that Illinois’ refusal to admit discuss the day’s pressing social, po- women to the bar did not violate the litical, and cultural issues. Brown newly passed Fourteenth Amend- was acutely aware of the limited ment of the U.S. Constitution. Yet sphere in which elite women could remarkably, in 1885, women in Chi- maneuver respectably and worried cago created the Protective Agency that some might take a dim view of for Women and Children (PAWC), the club. Yet, in the aftermath of the which was one of the very first orga- disastrous 1871 fire, Chicago was nizations in the country to provide a particularly hospitable place for free legal aid to the poor. such a group, as women had creat- The PAWC began inauspiciously ed organizations to provide charity Felice Batlan 19 and relief to victims of the fire. Thus ties, and defined the problems that a tradition of middle-class and elite they sought to solve. According to women’s organizing already was be- the PAWC, elite and middle-class ginning to develop in Chicago. women had a unique responsibility One of the first projects of the to protect poor and working-class CWC was to place a woman night women from a host of dangers and matron in each police station and injustices. Central to the PAWC’s the club hired and raised funds for ideology was the argument that men the matron’s salary. The issue of hav- as a whole had failed to create a mor- ing women police matrons was one al and just society. Instead, men had embraced by numerous women’s constructed a world that was rife organizations across the country. It with injustices to women and gov- was an appropriate women’s issue be- erned by a corrupt political system cause it involved the supervision of in which men put self-interest before working-class and poor women un- the public good. der the rationale of protecting such Charlotte Holt was hired by the women’s virtue from male prisoners PAWC as the organization’s superin- and from policemen (often immi- tendent. She ran the office and inter- grant men). Responsibility for the viewed women who sought aid. She matron gave CWC members cause and her assistants, board members, to visit the jails as well as to follow and volunteers then would investi- jailed women’s cases through court gate cases and attempt to settle them. proceedings. They observed first- A male attorney would become in- hand the treatment of poor women volved only if a lawsuit was filed, and girls in Chicago courts as defen- which was a rare event. Each year, dants, witnesses, and victims. the number of clients to whom the These experiences underlay the PAWC ministered grew exponentially. CWC’s decision to create the Pro- In its first year, the PAWC handled tective Agency for Women and Chil- 156 cases, in its third year 1,145, and dren in 1885. The PAWC announced by 1905 over four thousand. There as its objective: “To secure justice for were few rules regarding the types women and children, to give legal of cases that the PAWC would take. counsel free of charge, and to ex- Rather it functioned flexibly and tend moral support to the wronged often improvised, meeting needs as and helpless.” Significant to notice they arose. Thus unlike the practice here is that the PAWC limited its of most later legal aid societies, the clientele to women. In fact, gender PAWC did not have eligibility re- was fundamental to how members quirements, did not require that a of the PAWC viewed themselves, client be worthy, and was entirely constructed their roles and du- unconcerned that it might take cases 20 Then & Now: Stories of Law and Progress away from attorneys. As the PAWC’s husband, threaten him with a law- superintendent stated, “We do not suit for failure to support, and col- make any rules, but judge of each lect support payments for the wife. case as it comes to us.” If the husband did not agree to pay, The two largest categories of cases the PAWC often would convince were wage claims involving women his employer to pay wages directly whose employers had failed to pay to the PAWC for the benefit of the them and domestic relations claims. wife. Actions such as these com- In wage cases, Holt and other board bined the threat of litigation with members, using their influence and public humiliation by making visi- persuasion through letters and per- ble a man’s failure as a breadwinner. sonal visits, pressured employers to In the small number of cases where pay such wages. This form of con- these methods failed, the PAWC ciliation was used so often that the might file a lawsuit against the hus- PAWC dubbed it “White Mailing.” band for non-support. Meanwhile The “white” was intended to imply the PAWC also would negotiate with that it was done in the name of jus- the landlord and furniture dealer for tice, morality, and the public good, lower or postponed payments. The as opposed to blackmail which was PAWC rarely initiated lawsuits and done for self-interest. this was for good reason. A lawsuit The bulk of the PAWC’s domestic would require that the PAWC’s male relations cases raised issues of aban- lawyer become involved. Even more donment and/or non-support of important, the PAWC had little faith wives by husbands. These cases went in the courts and did not believe that to the heart of the PAWC’s belief in courts could actually deliver justice. the absolute obligation of a husband to support his wife and children. In he PAWC’s vision of legal aid a typical case, a woman would ap- Twent well beyond representing pear at the PAWC’s office claiming plaintiffs in claims for monetary that her husband disappeared weeks damages. Rather the PAWC de- ago, leaving her penniless. Now the vised for itself the mission of over- landlord was demanding rent, and seeing the court system’s treatment the furniture was being repossessed. of poor and working-class women’s At times, the husband was close by cases involving sexual assault. The living with relatives and at other PAWC declared that they intended times he had traveled far away. Of- to protect such women from a legal ten the wife would have some sense system that too often failed to take of where the husband was staying seriously cases in which women and where he worked. The PAWC made claims of rape or sexual abuse. would take the case, search for the Rather, courts and the state dis- Felice Batlan 21 missed charges, charged defendants ties, discourteous treatment by court with minor offenses, or even found personnel, crowded courtrooms, defendants innocent in cases where and magistrates’ and court officers’ significant proof of abuse existed. lack of sympathy with or concern The PAWC argued that defendants’ for poor women. The letter urged lawyers endlessly delayed cases and the appellate justices to appoint only inappropriately influenced judges. the most qualified attorneys to judi- If a trial occurred, the defendant’s cial positions. Regarding the issue lawyer humiliated the victim by at- of qualifications, the PAWC’s com- tacking her character and chastity. plaints were laden with contradic- Likewise the state’s attorney, who tions. Even its most powerful and was at best overworked and apathet- active members did not have formal ic, could not be relied upon to pros- legal training, and the PAWC’s mis- ecute cases fully. sion was to exert their own influence Leaders of the Agency also be- over judges. lieved that the court system was Part of what the PAWC found so filled with justices of the peace and objectionable was that police magis- police magistrates who had obtained trates and other lower court judges their appointment through political were not only deeply ensconced in connections and were often corrupt. politics but were also non-elite, often By contrast with corrupt non-elite immigrant men. The PAWC’s attack justices of the peace, police magis- on court officials reflected their larg- trates, and lawyers, PAWC members er fear of the power that immigrants considered themselves more compe- and non-elite men, through political tent and certainly more virtuous. In connections and the system of Chi- 1887, the PAWC confidently wrote cago’s ward bosses, had obtained. By a letter to state appellate judges re- contrast with the supposedly illegit- garding the deplorable state of the imate power exercised by court offi- lower courts. The letter declared, cials, the members of the PAWC saw “We have had cases in which we themselves and the power that they believe political influences have exercised to be earned, natural, and governed the Justices. We have had above reproach. cases in which sympathy with vice When the PAWC learned about seemingly decided the question. We a case of sexual violence, it became have had cases in which the attor- involved in multiple ways, including ney for the accused controlled the conducting its own investigation, Justice, and it was deemed impos- gathering evidence, and speaking sible to secure a fair hearing.” They with judges and attorneys. At times, further complained of intentional PAWC members would pressure delays, mind-numbing technicali- the state’s attorney into allowing the 22 Then & Now: Stories of Law and Progress PAWC’s own attorney to prosecute regarding sex crimes. Particularly cases. In their own words, they would infuriating was how defense law- act “the sister’s part.” One of the yers raised issues of a victim’s con- PAWC’s best-publicized and most sent and used past sexual conduct visible tactics was to appear en masse to demonstrate consent, even when in courtroom proceedings involving crimes involved girls. The PAWC cases of sexual assault. In doing so, strongly condemned as hypocritical they functioned as judicial watch- the double standard that permitted dogs whose presence was intended men to have sex outside marriage to shame court officials and lawyers while condemning women who did into proper behavior. PAWC mem- so. Connecting this understanding bers walked a fine line in assuming to the legal arena, they sought to this role, as truly respectable wom- make a woman’s chastity and morali- en rarely appeared in court, which ty irrelevant to the question whether all recognized as a masculine space. she was the victim of a sex crime. As Chicago’s police courts were rough- members continued to attend court, and-tumble places—crowded, noisy, they began to assert that the courts’ filled with smoke, and teeming with unfair treatment of women in cases defendants of all sorts. These were regarding sexual violence was not hardly places where ladies appeared. caused only by individual men’s be- Responding to the PAWC’s actions, havior. Rather, the PAWC insisted, some court officials declared that the this unfair treatment was engrained courts, especially police courts, were into law and required the enactment not an appropriate place for respect- of new laws that would exclude evi- able women. Such judicial opprobri- dence of a women’s chastity or previ- um only increased the PAWC’s teous conduct. It explained, “[I]mmo- nacity and paradoxically augmented rality should be no hindrance to the impact had by the public nature legal rights in one sex more than the of their protests. As the PAWC ex- other.” It also campaigned to raise plained, “The presence of a delega- the legal age of consent, which in tion of reputable women, women of Illinois was ten for a girl. Laws rais- social position and influence, changing the age of consent went hand- es the moral tone of Police court, in-hand with reforming evidentiary and imparts courage to a timid girl, rules and burden of proof standards, whose very innocence confuses her, as statutory rape made questions of in the presence of so many strange consent and a girl’s character and past men.” sexual conduct moot. As the PAWC As PAWC members invaded the understood, such reformed laws re- courtroom, they also began to ques- moved a judge’s discretion and further tion substantive and evidentiary laws controlled defense attorneys’ behavior. Felice Batlan 23 Significantly, the PAWC did not conceptualize its legal work as distinct from its other work, which included providing non-legal advice, giving financial aid, locating lodg- ings, finding employment, and seeking medical services for its clients. It would have made little sense to the women of the PAWC to believe that the purpose of legal aid was simply to provide their clients the ability to go to court separated from a concern with substantive justice or material well-being. Moreover, they claimed, the PAWC provided its clients with “self-respect” and “self-dependence.” The women of the PAWC also tended to accept the stories told by those women seeking their help. In other words, they presumptively be- teners.” For a poor woman to tell her lieved their clients rather than find- story to a middle-class or wealthy ing their stories suspect. Moreover, woman and to have her listen to and they appreciated the importance of acknowledge her story must have allowing clients to tell their stories given the poor women a sense of slowly, which they asserted “busy empowerment and agency. lawyers would not bear.” As they rec- Like attorneys, volunteers and ognized, many women who sought employees of the PAWC treated all help did not have legally cognizable conversations with clients as con- claims. But they believed that client fidential, often refusing to write or narratives had value in and of them- speak about individual cases. As selves. “Many a tale of woe is told Holt wrote, “Much of our work is of in our office, the mere listening to a confidential nature, and as our aim which by sympathetic and intelli- has always been to encourage women gent women is all the help possible. to come to us for advice and coun- It is astonishing how grateful some sel, it has been one of the essential of these women are for the opportu- stimulants to them to be assured of nity of telling their trials to such lis- the strictly private nature of all work that could be kept private.” Thus the Photo of Lucy Louisa Flower, long-time officer of the PAWC, Chicago Markers of Distinction, http://chi- Agency never publicly discussed its cagotribute.org/Markers/Flower.htm. cases in any detail, even in its fund- 24 Then & Now: Stories of Law and Progress raising materials. By contrast with is sure of respectful hearing.” The a variety of reform organization, PAWC was also particularly proud especially those related to women, when, in the late 1890s, they re- the PAWC eschewed melodramatic ceived requests from judges to have narratives of seduction and betrayal the PAWC station a representative of young women. In their view, such in every police court to handle cases stories and issues were so serious involving women, an affirmation that they needed to stand outside of the PAWC’s importance and its popular discourse. They were not to members’ legal and practical ex- be traded upon and instead were to pertise. be treated as precious. The work of the PAWC had lasting influence not only in shaping the arly in its history, the PAWC’s idea and practice of providing orga- Emembers correctly understood nized legal aid to the poor, but also their power as coming from their in building Chicago’s specialized class and social position. As time courts, including its juvenile and passed, they began to base their domestic relations courts. A num- claims to expertise and authority ber of women who were officers of on their growing legal knowledge the PAWC played significant roles and experience. They proudly pro- in the creation of these courts and claimed that the bench and the bar the PAWC may have functioned as a recognized and appreciated their model for such courts. Both of these expertise. The PAWCs relationship courts were intended to move away to judges and attorneys was compli- from an adversary model of law and cated, because they simultaneously sought to minimize the role of law- looked down on many lawyers and yers. Likewise, tremendous discre- judges while still longing for their tion was vested in social workers, acceptance and basking in their often women, whose job was to un- compliments. When long-time offi- derstand holistically those who ap- cer and board member Mary Potter peared before the court. They were Crane died, the PAWC boasted that to use such knowledge to fashion “she had a judicial mind, and was individual solutions and such courts always welcome at the State’s At- were intended to be flexible insti- torney’s office, and her advice and tutions not bound by strict under- counsel in difficult cases . . . were standings of the rule of law. frequently sought by attorneys.” The PAWC was an extraordinary Likewise, one board member wrote institution. At a time when only a that Charlotte Holt “has so won the miniscule number of women were respect and confidence of the courts lawyers, it created a space in which that whatever case she presents women provided legal advice to Felice Batlan 25 other women. Situated within a In 1905, the PAWC became the Chi- thick network of women’s clubs, the cago Legal Aid Society and its vision PAWC expanded its activities to proof legal aid as part of a continuum of vide a wide range of legal services to care became the hallmark of a Chi- women, and it refused to make hard cago-style of legal aid which is still distinctions either between the types with us today. ◆ of cases that it would handle or be- Felice Batlan earned her J.D. from Har- tween legal versus non-legal cases. vard and spent a decade working in New York in the financial services industry. She then earned her Ph.D. in history from Sources and Further Reading NYU. She specializes in both the regula- ■ Protective Agency for Women and Children, An- tion of financial markets and in nine- nual Reports of the PAWC, 1886–1905. teenth and twentieth century U.S. legal ■ Felice Batlan, The Birth of Legal Aid: Gender Ideologies, Women, and the Bar in New York City, history with a focus on women and gen- 1863–1910, 28 Law & Hist. Rev. 931 (2010). der. She has published widely in law re- ■ Maureen A. Flanagan, Seeing with Their Hearts: views, history journals, and anthologies. Chicago Women and the Vision of the Good City This is an excerpt from her forthcoming 1871–1933 (2002). ■ Michael Willrich, City of Courts: Socializing Jus- book Inventing Legal Aid: Lawyers, So- tice in Progressive Era Chicago (2003). cial Workers, and the Poor, 1863–1960. 26 Then & Now: Stories of Law and Progress

“Telegraph operator printing telegram,” photo by Waldon Fawcett, c. 1908, National Photo Company Collection, Library of Congress. WHAT'S A TELEGRAM? Henry H. Perritt, Jr.

hen Chicago-Kent’s pre- Annie Morton, 22, had just finished decessors were founded playing “Now Where Did You Get in 1888 there were no That Hat?” on the piano in the parlor We-commerce, wireless access to media, of the rooming house at 2210 South e-mail, Facebook friends, or airline Prairie Street in Chicago. delays. That does not mean, however, that people did not shop remotely, en- “I should like to have one just the joy entertainment, communicate with same as that! friends, or travel. They just did them in other ways, all of which sometimes “Where’er I go, they shout ‘Hello! spawned disputes, some of which Where did you get that hat?’” she found their way into the courts. What sang. follows is a story of the dreams of 125 years ago. The characters are fiction- Patrick Boland, still dressed in his al. What they talk about is not. telegraph messenger’s blue uniform with red trim, sat on the couch by ✳ ✳ ✳ the piano and applauded. His cap with a prominent brass number “79” sat on the table beside him. Henry H. Perritt, Jr. 27 Annie giggled and then looked at fice, but I’m up to $20.” Luther Wardell, who was sitting in a plush chair beside the couch. “Oh, we know, we know,” Luther “What’s the matter, Luther?” she said. “Seven long years you’ve been asked. “You don’t like it? It’s one of telling us your boring stories about the most popular songs this year.” it .”

“Oh, I’m sorry!” Luther said. He “It’s not boring at all. It’s exciting,” plucked at his blue denim trousers. Patrick said, glancing at his cap “I enjoyed it. I was just thinking proudly and determined to gain the while I listened.” upper hand against Luther. “We’re allowed to take on special errands for “About the strike?” Patrick asked. our customers. One guy who owns the livery stable up by the river paid “Yeah. I think I’m just going to go me two dollars to follow his wife and home and help work the farm. I report to him that she had spent a didn’t think they’d fire all of us. Who good part of her day with one of the knew that they’d be able to get hun- stable boys.” He was disappointed by dreds of strike breakers to work as Annie’s lack of reaction. switchmen and brakemen within a w e e k .” “I’ve heard that Western Union pays better,” Annie said. “They have about “That’s the CB&Q Railroad for you,” 140 boys, about half of them working Patrick said. “They’re even nastier to out of the main office at La Salle and their passengers than to the brake- Washington Streets.” Annie liked to men. They’re tough.” tease Patrick almost as much as she liked playing music. “Everyone is tough,” Luther responded. “I’m sick of it. You come to “It’s not so bad,” Patrick said. He liked Chicago to make your fortune, and for Annie to think well of him. “We everyone holds you down. There are wait on benches at the office and get no decent jobs.” called in turn, according to when we went out last. Almost everyone rides “Sure there are,” Patrick said. “I’ve a safety bicycle now. When a cus- got one, with American District tomer rings his call box, we ride out Telegraph Company. When I was and pick up a handwritten message started, at age twelve, the pay was and bring it back for transmission.” $17 per month. Now, I’m one of about one-hundred boys employed, “What’s a safety bicycle?” Luther most in the La Salle Street central of- asked. 28 Then & Now: Stories of Law and Progress “You are a farm boy,” Patrick laughed. “You ought to get one. They’ve been out for three years. They’re much better than the old kind with a large front wheel and a smaller rear one. These new ones have pneumatic tires.”

“I can’t afford one now,” Luther said glumly.

“I don’t like it that we have to pay for our own uniforms,” Patrick admitted. “They cost $12, and they take it out of our pay.”

“I bet you have to buy your own bicycle, too,” Luther said. “That’s not for me. I’ve got loans to pay back n ow.” “No.”

“You had to borrow money only be- “It was headlined, ‘Telephones a Nui- cause you lived so high during the sance.’ It quoted the Reedy Elevator strike. You should have saved up be- Manufacturing Company as saying, forehand,” Annie said. ‘The service we receive is not at all satisfactory, and if all instruments She shifted her attention back to Pat- could be removed we would have rick. “You’re a thing of the past,” An- ours fired at once. Would much pre- nie said. “What do people need with fer the old system of messengers, let- telegraph boys when they can just ters, or dispatches, as frequent costly use the telephone?” errors are made by telephone, which you cannot trace to any reliable party. “Don’t be ridiculous,” Patrick said. We don’t think the telephone com- “Telephones will never replace the pany has sufficient assistance in their telegraph. Everyone knows that. Did offices to wait on calls promptly. Fre- you see the article in the January 1, quently we ring three or four times 1888, Chicago Daily Tribune?” before we hear the lazy “hello?” and more frequently they reply, “Busy

“Frank, the Telegraph Boy,” illustration (uncredited) now—call again,” or “Busy; will ring from The Telegraph Boy by Horatio Alger, Jr., 1879. you up when through.” But they nev- Henry H. Perritt, Jr. 29 er ring. We consider it very poor ser- Chicago Daily Tribune? Miss Emma vice. But as our neighbors and cus- Baumann and Miss Ada Dalter ap- tomers have the phone we must keep plied for admission to the Chicago up with the procession.’” Evening Law School. Several of the seventy young men already enrolled “That’s not fair,” Annie said. “I work objected and went to Judge Moran, very hard. So does everyone else.” one of the founders, who rebuked them and said that the precedent “We’re all getting screwed,” Luther was well established that women said. “And now, that robber baron, could be admitted to the bar. I’m go- Benjamin Harrison, stole the elec- ing to apply.” tion from Grover Cleveland.” “Even if they let you in,” Patrick said, “He’s not a robber baron,” Annie said. “and even if you get admitted to the “I wouldn’t think you would favor bar, no one will give a girl lawyer any Cleveland. He vetoed pensions for w or k .” veterans. He’s not for the common man. And he’s a sympathizer for the “I hope you won’t borrow any mon- South. He would have never sup- ey for that,” Luther said, laughing. ported the women’s suffrage move- “You’d be better off borrowing it to ment. We’re poised to get something go to saloons.” done, now, on the amendment. The two main organizations merged last “I’ve already got a promise of some y e ar.” work,” Annie said. “One of the mechanics at the telephone company “Women’s suffrage—pshaw!” Luther wants me to help him get a patent said. “Next thing they’ll want is to for his idea for a new switchboard shut down the saloons.” apparatus. It’s a good idea. The days of making a telephone call by sig- “It would help you save money for naling a switchboard operator and a bicycle, if they were shut down,” giving her the name of the person Annie said. “Anyway, I’m going to to be called are over. They have just do my part. I’m going to become a introduced five-digit numbers to l aw y e r.” accommodate the rapid growth in subscribers. Now automatic dialing “A lawyer!” Patrick said. “You can’t is being introduced in Chicago—” be a lawyer.” “Because of the rude and lazy opera- “Yes I can. Did you see the story in tors,” Luther said. the September 7, 1888, edition of the 30 Then & Now: Stories of Law and Progress “What does this guy look like?” Pat- clared. “And they shouldn’t have rick asked. done it for the post office workers. They don’t work as hard as we do, “Jealous?” Annie teased. and we damn sure don’t have a deal like that.” “Well, you ought to think about it,” Patrick said. “You’re on the verge of “They deliver mail twice a day to res- becoming an old maid.” idential customers and four times a day to businesses,” Luther said. “And all the inventiveness is already producing lots of lawsuits—more “It would be quicker if they rode bi- work for lawyers,” Annie argued. cycles, like we do,” Patrick said. “Alexander Graham Bell and West- ern Union are suing each other. “Just wait,” Annie said. “Bicycles Morse’s patent for the telegraph is aren’t the future. Self-propelled car- always being challenged.” riages are. The Wisconsin legislature just awarded a prize for a steam-pro- “Keep your job, but organize,” Lu- pelled carriage that completed a ther said. “Launch a strike against all race from Green Bay to Madison, a this mechanical foolishness, taking distance of 201 miles at an average away jobs. It was bad enough on the speed of six miles per hour.” railroad.” “That was nine years ago,” Luther “Oh, right,” Annie said. “It’s a won- said. “And nothing has come of it. der you still have all your fingers. There’ll be flying machines before They need to make the Janney auto- horses and railroads need to be matic coupler mandatory.” afraid.”

“I guess I don’t have to worry about “Better try to get a union for the that anymore,” Luther said, flexing horses,” Annie said. “There will be the fingers on both hands and look- flying machines. Four years ago, a ing at them. “That’s another thing a man named John Joseph Montgom- union could do for us. The most ba- ery made a glider flight near San Di- sic goal, though, is to insist on what e g o.” the Congress just did for mail carriers: making eight hours a full day of “Yeah, but you can’t put a steam work, with overtime pay for hours engine in a glider,” Patrick said. He worked over eight.” laughed. “If they could, Luther, you can make sure they hook them to- “That’ll never happen,” Patrick de- gether with automatic couplers. A Henry H. Perritt, Jr. 31

Photo of telephone operators sitting at a switchboard, 1903, DN-0001438, Chicago Daily News negatives collection, Chicago History Museum. flying train!” past. Everyone will stay at home, sit on the couch and listen to ‘pho- “I’m telling you,” Annie said. “Peo- nographs.’ They’ll all get fat, and no ple are inventing things all over the one will learn how to play the piano place. Pretty soon, I won’t have to any m ore .” learn the new songs to play them on the piano. Thomas Edison just got a Annie ignored him. “And he just patent for a machine that plays mu- applied for another one: an ‘Opti- sic from grooves etched on a wax cal Phonograph,’ capable of show- cylinder.” ing pictures in full-motion. Already, people are excited about the Kodak, “Well, I guess they can stop work the first roll-film camera just pat- on the Auditorium Theatre,” Patrick ented. And a man named Herman said, “even though it’s scheduled to Hollerith received a patent for an open next year. President Harrison automatic tabulating machine. You and Vice-President Levi Morton punch numbers into paper cards and are supposed to come to the grand his machine sorts them.” opening. They’ll be disappointed to hear that all the operas and plays “You must have gotten into your are going to have to find somewhere mother’s laudanum,” Patrick said. else to perform in Chicago. Oh—I “Next thing you’ll predict is send- forgot—there won’t be any operas ing telegraph signals through the air, and plays. They’ll be a thing of the without wires.” 32 Then & Now: Stories of Law and Progress “It’s possible,” Annie said. “An En- sporting goods, musical instru- glish scientist, James Clark Maxwell, ments, saddles, firearms, buggies, has already proven mathematically bicycles, baby carriages, eyeglasses, that electricity can be transferred clothing . . . ” He looked at Patrick. through free space, and a German, “Or safety bicycles,” he said. Heinrich Hertz, has demonstrated it in his laboratory.” “She must have given you some of the laudanum,” Patrick said. “Steam “Things are changing pretty fast,” powered gliders linked with auto- Luther said, showing a spark of en- matic couplers, card sorting ma- thusiasm for the first time. “There chines linked with vapor telegraph sure is a lot of stuff being invented signals. Just imagine!” Patrick chuck- on the railroads,” Luther said. “The led. “For that matter you could order Janney automatic coupler is one; from the catalog with a vapor tele- airbrakes before that. Now, people gram. Old Man Sears would track are working on automatic signaling the orders by sorting the cards, and systems and even on ways to replace deliver the stuff by steam powered the steam locomotive with some gliders and steam carriages.” kind of engine that burns fuel inside the cylinders. I’ve been coming up “I tell you what, Luther,” Annie said. with some ideas of my own before I “Don’t go back to the farm. Stay got caught up in the strike.” A hint here, with us. I’ll become a lawyer of sadness returned to his face. “One and help you get patents on all the thing I’ll miss is all the machinery.” stuff you’ll invent—if you keep all your fingers. Go talk to Reverend He thought for a moment and then Frank Wakeley Gunsaulus, the min- rushed on: “Think about what Old ister at Plymouth Congregational Man Sears and his partner Roe- Church. He’s already trying to per- buck have already done. Their new suade Philip Armour to extend his ‘Sears & Roebuck’ catalog was just grant for the Sunday School that Ju- published from their new office on lia Beveridge is running to establish Homan Street. It advertises watches a new kind of school where students and jewelry, which can be purchased of all backgrounds can prepare for by mail. ‘Book of Bargains: A Money meaningful roles in a changing in- Saver for Everyone,’ ‘Cheapest Sup- dustrial society, to study mechanics, ply House on Earth,’ and ‘Our trade chemistry, architecture, and library reaches around the World,’ he brags. science. They already have some- People are ordering them like crazy. thing like that in Boston. It’s named There’s no reason they can’t include the Massachusetts Institute of Tech- other stuff, like sewing machines, nology—‘Boston Tech,’ most people Henry H. Perritt, Jr. 33 call it.” and they’ll say, ‘What’s a telegram?’” Annie laughed. Patrick tried to Luther looked at her. smile, the hat halfway to his head.

“We’d make a good team,” she urged, “And then,” Luther said, looking at the with a quick glance at Patrick. hat and laughing harder. “They’ll say, ‘now where did you get that hat.’” ◆ “Who knows?” Luther added. “May- be we’ll get married.” He leered at Patrick. Henry H. Perritt, Jr. has been a law pro- “Maybe,” Annie said, “Even though fessor for 32 years and served as Dean of Patrick is cuter in that uniform. Put Chicago-Kent from 1997 to 2002. He has on the hat, handsome.” worked on the White House Staff and was the Democratic candidate for the U.S. House of Representatives in the Tenth “Ha!” Luther said. “I can just see it. District of Illinois in 2002. He has writ- He’ll still be riding his safety bicycle ten 15 books, 80 law review articles, four around the streets of Chicago asking plays including a musical, and five novels. people if they want to send a telegram, He is a sailor and a helicopter pilot. 34 Then & Now: Stories of Law and Progress

Advertisement for the Kodak camera, c. 1890. PRIVACY & TECHNOLOGY: A 125-YEAR REVIEW Lori Andrews

he year the Chicago-Kent your expression yesterday while College of Law was found- you were innocently talking at the ed, a new consumer product Post Office. He has taken you at a Tarrived on the scene: the portable disadvantage and transfixed your camera. Before then, taking some- uncouth position and passed it on one’s photo was a big deal. A person to be laughed at by friend and foe would get dressed up and go to a stu- alike. His click is heard on every dio. Photos were not taken without a hand. He is merciless and omni- person’s permission. But the porta- present and has as little conscience ble camera changed all that—and in and respect for proprieties as the the process led to the development verist hoodlum. What with Kodak of legal rights of privacy that endure fiends and phonographs and elec- today. tric search lights, modern inven- An 1890 newspaper article tive genius is certainly doing its warned: level best to lay us all out bare to the gaze of our fellow-men. Have you seen the Kodak fiend? Well, he has seen you. He caught Like Facebook, Twitter, Instagram, Lori Andrews 35 Snapchat and YouTube today, the and distress, far greater than could portable camera fundamentally be inflicted by mere bodily injury.” changed the way other people and Their article, “The Right to Pri- institutions could peer into people’s vacy,” was published in 1890 in the lives. But the issues raised by today’s Harvard Law Review. They demon- cutting-edge technologies are similar strated that a privacy right had a to those raised by the Kodak fiend. basis in fundamental Constitutional In the late 1800s a lawyer, Samuel values, such as the right to refuse to Warren, married the daughter of a testify against oneself, and common Senator. He was unprepared for the law principles, such as the “right of incessant media attention to their determining, ordinarily, to what ex- union, fueled by the newly-devel- tent his thoughts, sentiments, and oped portable camera. After his chil- emotions shall be communicated to dren were born, paparazzi would others.” snap photos of the babies when the “The protection afforded to family took walks down the street. thoughts, sentiments, and emotions Annoyed, he thought about what . . . is merely an instance of the en- legal recourse he might have. Were forcement of the most general right there any legal precedents for a of the individual to be let alone,” “right to be let alone”? He pondered they said. “It is like the right not to the issue with a friend from law be assaulted or beaten, the right not school, Louis Brandeis. They could to be imprisoned, the right not to be have suggested that people no lon- maliciously prosecuted, the right not ger had a right to be left alone be- to be defamed.” cause technologies could now track Their ideas were incorporated and record what they did. Instead into law through the creation of four they noted that the intrusiveness of distinct legal actions for invasion of technologies like the portable cam- privacy: for intruding on someone’s era made it even more important seclusion, for publicly disclosing for people to have control over in- private information, for putting a formation about themselves. “The person in a “false light” in the public intensity and complexity of life at- eye, and for appropriating someone’s tendant upon advancing civilization name or likeness for commercial use. has rendered necessary some retreat They advocated that information from the world,” they wrote, “so that about and photos of people could solitude and privacy have become be disseminated if they had con- more essential to the individual; but sented or if the matter was of legit- modern enterprise and invention imate public interest. Since then, the have, through invasion upon his pri- fundamental Constitutional right vacy, subjected him to mental pain to privacy has additionally been in- 36 Then & Now: Stories of Law and Progress terpreted to include a right to make ultimately, privacy prevailed. important personal decisions, such When Charles Katz entered a as whether to use contraception or public phone booth in 1965, he never whether to homeschool your child. imagined that cops would tap the The mode of analysis of the two phone line. The cops charged him Boston lawyers from a century ago with placing illegal bets—and he has been used to analyze each new protested that they had infringed the technology that has reached the Fourth Amendment limits on gov- courts. How does it affect the indi- ernmental intrusion into a person’s

vidual and society? How do funda- private life. The trial judge said that mental legal values help to protect wiretapping didn’t violate the Fourth the individual when the technology Amendment because the Founding is used? As each new technology has Fathers drafted the Constitutional been adopted—including forensic provision to honor people’s privacy technologies, medical technologies, in their homes. In this case, the po- and computer technologies—the ap- lice hadn’t trespassed into his home. plication of fundamental values has In fact, there had even been a Su- been used to protect, and often ex- preme Court decision on the matter, pand, people’s privacy rights. Some- back in 1928, when cops had used times courts, lacking the compre- earlier wiretap technology to learn hensive analysis of technology like that someone was violating Prohibi- the one undertaken by Warren and tion. Brandeis, took missteps when they In that earlier case, Olmstead v. first encountered a technology. But United States, 277 U.S. 438 (1928),

“The Kodak Fiend,”Hawaiian Gazette, December 9, 1890, the five-justice majority of the U.S. Chronicling America Collection, Library of Congress. Supreme Court had held that a Lori Andrews 37 bootlegger’s privacy hadn’t been orty years after theOlmstead invaded and he hadn’t been forced Fdecision, when Charles Katz’s to incriminate himself because, al- case was appealed to the U.S. Su- though police had recorded the calls preme Court, the majority of the he was making from his home, the justices applied Brandeis’s logic. wiretap equipment had been placed Even though Charles Katz was us- on phone lines outside his home. ing a public phone booth, the Court Writing for the dissent was none said that the Constitutional right of other than Louis Brandeis, who was privacy “protects people, not places.” then a Supreme Court justice. He ar- What a person seeks to preserve as gued that fundamental values had to private, even in a public place, may be applied to new technologies. He be Constitutionally protected. noted that when the Constitution The Supreme Court protected was adopted, “force and violence”— Katz’s privacy by enunciating a legal torture and breaking into people’s test that is still used today: Did the houses—were the only ways that the person have an “expectation of pri- government had to obtain private vacy” and was that an expectation information about people. The Con- that society was willing to protect? stitution protected against force and As a result, police need to get a war- violence. But, said Brandeis, “discov- rant, based on probable cause, before ery and invention have made it pos- they tap someone’s phone. sible for the government, by means The march of law enforcement far more effective than stretching technology continued, and in 2001, upon the rack, to obtain disclosure a new forensic technology reached in court of what is whispered in the the court. A federal agent suspected closet. . . . The progress of science Danny Kyllo of growing marijuana. in furnishing the government with Since growing pot indoors requires means of espionage is not likely to high-intensity lamps, the agent sat in stop with wiretapping. Ways may a car across from the home and used some day be developed by which the an Agema Thermovision 210 ther- government, without removing pa- mal imager to scan Kyllo’s home. The pers from secret drawers, can repro- scan showed that the roof over the duce them in court, and by which it garage and a side wall of the home will be enabled to expose to a jury were relatively hot compared to the the most intimate occurrences of rest of the home and substantially the home.” According to Brandeis, the warmer than neighboring homes Constitution’s fundamental value of in the triplex. The agent concluded privacy and the right not to incriminate that Kyllo was growing pot and con- yourself needed to be applied not only vinced a judge to allow him to search to “what has been, but of what may be.” Kyllo’s home. The agent found pot, 38 Then & Now: Stories of Law and Progress and Kyllo was convicted on a drug get of a narcotics investigation by charge. Because the thermal scan- police and the FBI. The Court held ner did not physically intrude on the 9 to 0 that the twenty-eight-day war- house and did not show any private rantless use of the GPS violated the human activities, the trial court said Fourth Amendment. In her concur- that it hadn’t infringed Kyllo’s Con- rence, Justice Sotomayor pointed stitutional rights. out how the fundamental right to The appellate court, too, held that privacy was salient even in today’s Kyllo had shown no subjective ex- world. “GPS monitoring generates pectation of privacy because he had a precise, comprehensive record of made no attempt to conceal the heat a person’s public movements that escaping from his home, and “even reflects a wealth of detail about her if he had, there was no objectively familial, political, professional, re- reasonable expectation of privacy ligious, and sexual associations,” because the imager ‘did not expose wrote Sotomayor, adding, “People any intimate details of Kyllo’s life,’ disclose the phone numbers they only ‘amorphous “hot spots” on the dial or text to their cellular provid- roof and exterior wall.’” ers; the URLs that they visit and the When the U.S. Supreme Court e-mail addresses with which they took the case, it reversed Kyllo’s correspond to their Internet service conviction. “It would be foolish to providers; and the books, groceries contend that the degree of privacy and medication they purchase to secured to citizens by the Fourth online retailers. . . . I for one doubt Amendment has been entirely un- that people would accept without affected by the advance of technol- complaint the warrantless disclosure ogy,” wrote Justice Antonin Scalia. to the Government of a list of ev- “Where, as here, the Government ery Web site they had visited in the uses a device that is not in general last week, or month, or year.” Justice public use, to explore details of the Sotomayor also was concerned that home that would previously have “[a]wareness that the government been unknowable without physi- may be watching chills associational cal intrusion, the surveillance is a and expressive freedoms.” ‘search’ and is presumptively unrea- Contemporary medical technol- sonable without a warrant.” ogies, such as genetic testing, have In 2012, the U.S. Supreme Court also raised disputes about the reach in United States v. Jones, 132 S. Ct. of privacy principles. When genet- 945 (2012), assessed the use of a ic testing became possible, people GPS tracking device installed on a were tested without their knowledge car driven by Antoine Jones, a D.C. or consent. Doctors and researchers nightclub owner. Jones was the tar- would use blood that people had Lori Andrews 39 given to labs for routine cholesterol When the existence of the files or pregnancy tests and perform ad- leaked, the employees sued. The trial ditional testing, without the person’s court dismissed the case, saying that consent, for everything from breast the test was a modest intrusion, no cancer to Alzheimer’s disease. The more than what people usually un- argument was, what’s the harm? The dergo in a physical. But the appellate person had already been pricked; the court held that genes contain per- additional tests involved no addi- sonal information that is protected tional intervention. And even if the by the fundamental right to privacy. blood was collected anew—as in a “One can think of few subject areas forensic DNA test—blood tests were more personal and more likely to safe and noninvasive. implicate privacy interests than that But then employers and insurers of one’s . . . genetic make-up,” wrote started discriminating against healthy the Court of Appeals for the Ninth people based on their genetic predis- Circuit in Norman-Bloodsaw v. Law- position to future disease. With cer- rence Berkeley Laboratory, 135 F.3d tain genetic mutations, for exam- 1260, 1269 (9th Cir. 1998). Since ple, some women had a higher risk then, Congress has passed a law, the of developing breast cancer than Genetic Information Nondiscrimi- other women. Even with those mu- nation Act, specifically prohibiting tations, half the women would not employers and insurers from dis- develop breast cancer. Some women criminating against people based on didn’t want to know whether they the results of genetic tests. People’s had the mutations or not. They said privacy rights include the right not to they would feel like they had a time have genetic information generated bomb ticking away inside them. But about them or used against them. employers and insurers wanted that Even computer technologies that information to make their decisions. collect data about people have been There were no legal limits on what subject to a fundamental rights anal- could be done with that information. ysis. When Judge Robert Bork was During routine physicals, an nominated for the U.S. Supreme employer in California asked the Court in 1987, Michael Dolan, a company doctor to surreptitiously Washington, D.C. newspaper re- test the female employees to see if porter, attempted to discredit him by they were pregnant and the Afri- publishing his video store rental re- can-American employees to see if cords. In today’s world, Judge Bork’s they carried the sickle cell anemia choices seem tame: British movies, gene mutation. The results were not Bond movies, costume dramas. The disclosed to the employees, but they reporter was disappointed not to see were put in to their personnel files. legal movies such as 12 Angry Men 40 Then & Now: Stories of Law and Progress or To Kill a Mockingbird. Instead, continue to move ahead, we must Judge Bork had rented “only one protect time honored values that are truly court-related tape”: The Star so central to this society, particularly Chamber. our right to privacy. The advent of Bork did not get the Supreme the computer means not only that Court nomination. But the publi- we can be more efficient than ever cation of his video rentals did get before, but that we have the ability to the attention of Congress. “It is no- be more intrusive than ever before. body’s business what Oliver North Every day Americans are forced to or Robert Bork or Griffin Bell or Pat provide businesses and others per- Leahy watch on television or read or sonal information without having think about when they get home,” any control over where that infor- said Senator Pat Leahy. “In an era mation goes. . . . These records are of interactive television cables, the a window into our loves, likes, and growth of computer checking and dislikes.” check-out counters, of security sys- The legislators applied the funda- tems and telephones, all lodged to- mental Constitutional right to pri- gether in computers, it would be rel- vacy and passed a law in 1988 for- atively easy at some point to give a bidding disclosure of people’s video profile of a person and tell what they rental records (or, in this day and buy in a store, what kind of food age, what they watch on Netflix). they like, what sort of television pro- The bill prohibits video stores from grams they watch, who are some of disclosing “personally identifiable in- the people they telephone. . . . I think formation”—information that links that is wrong. I think that really is the customer or patron to particular Big Brother, and I think it is some- materials or services. In the event of an thing that we have to guard against.” unauthorized disclosure, an individual Senator Paul Simon agreed. may bring a civil action for damages. “There is no denying that the computer age has revolutionized our he concerns raised by the dis- world. Over the past twenty years Tclosure of Bork’s video records we have seen remarkable chang- are mild when compared to today’s es in the way each one of us goes digital invasion of privacy. A bil- about our lives. Our children learn lion people have joined Facebook, through computers. We bank by ma- a population only slightly smaller chine. We watch movies in our living than either of the two largest coun- rooms. These technological innova- tries, India and China. Marketing tions are exciting and as a nation companies, political candidates, law we should be proud of the accom- enforcement agencies, employers, and plishments we have made. Yet, as we other social institutions peer through Lori Andrews 41

Chicago-Kent College of Law Facebook page, retrieved Feb. 5, 2013, from https://www.facebook.com. the keyholes of people’s lives by as- privacy rights are lost “on affirmative sessing the information and photos keystroke.” that individuals post and that third In just the past two years, how- parties post about them. Even more ever, courts and lawmakers have troubling, data aggregators use sur- begun to protect freedom of expres- reptitious tracking mechanisms to sion and privacy on social networks. follow people across the web and use In Layshock v. Hermitage School Dis- that information to make judgments trict, 650 F.3d 205 (3d. Cir. 2011), about them. If a woman does a Google and J.S. v. Blue Mountain School Dis- search for old guitars and then seeks trict, 650 F.3d 915 (3d. Cir. 2011), the a credit card, she will be offered a Third Circuit Court of Appeals held credit card with less advantageous that public high school students had terms—not because her credit is a First Amendment right that cov- bad, but because garage rock bands ered their posts on social networks in general are less likely to pay off even if those posts were critical of their credit cards. If she has a pho- school administrators. And a few to of herself with a wineglass in her state legislatures—including that of hand, she may be denied a job. Sev- Illinois—passed laws prohibiting enty-five percent of employers look employers from asking for the social at people’s social network presence; network passwords of an employee one-third reject people who have al- or a job applicant. That Illinois law cohol in a Facebook photo. And, as went into effect 125 years after Chi- with past technologies, courts and cago-Kent College of Law opened its legislatures have been slow to pro- doors. The Illinois governor came to tect privacy, initially holding that the campus to sign the bill into law 42 Then & Now: Stories of Law and Progress and was introduced by a Chicago- as nearly as human institutions can Kent student who was working on approach it.’ The future is their care, internet privacy issues. and provision for events of good and The Warren and Brandeis article bad tendencies of which no proph- not only created a legal framework ecy can be made. In the application that still applies today to safeguard of a Constitution, therefore, our con- people’s privacy, it also established templation cannot be only of what a method for judging new technolo- has been but of what may be.” gies. The authors analyzed how fun- When the law school opened its damental values inherent in the U.S. doors 125 years ago, it would have Constitution and common law pro- been difficult to imagine the high- vide a basis to make judgments about tech world of today. But by learning new technologies. They also assessed about cutting edge technologies as how new technologies affected indi- well as fundamental legal principles, viduals, institutions, and the larger the students at IIT Chicago-Kent society. Warren and Brandeis did College of Law have been well edu- not suggest that individuals adapt to cated, in every era, to face their gen- each new technology, but instead ad- eration’s legal challenges. ◆ vocated that society assure that each technology was employed in a way Sources and Further Reading that was consistent with fundamen- ■ Lori Andrews, I Know Who You Are and I Saw tal societal values. What You Did: Social Networks and the Death of Privacy (2013) (the basis for this chapter). When Brandeis was appointed ■ Alfred Lief, Brandeis: The Personal History of an to the U.S. Supreme Court 26 years American Ideal (1936). ■ Samuel D. Warren & Louis D. Brandeis, The after his privacy article appeared, Right to Privacy, 4 Harv. L. Rev. 193 (1890). he continued to champion the ap- ■ Eli Pariser, The Filter Bubble: What the Internet Is Hiding from You (2011). plication of Constitutional values to ■ Jeffrey Rosen and Benjamin Wittes, eds., Con- modern technologies. He also wrote stitution 3.0: Freedom and Technological Change about the nature of a Constitution. (2011). “Time works changes, brings into existence new conditions and pur- Lori Andrews is a graduate of Yale Col- poses. Therefore a principle, to be lege, summa cum laude, and Yale Law vital, must be capable of wider appli- School. She directs the Institute for Science, cation than the mischief which gave Law and Technology at IIT Chicago-Kent it birth. This is peculiarly true of College of Law and teaches courses about Constitutions. They are not ephem- the law’s response to new technologies. eral enactments, designed to meet She’s written 14 books, including three mysteries. The American Bar Association passing occasions. They are, to use Journal calls her “a lawyer with a literary the words of Chief Justice Marshall, bent and the scientific chops to rival any ‘designed to approach immortality CSI investigator.” •

43 44 Then & Now: Stories of Law and Progress

Photo of John Montgomery Ward, 1922, Bain Collection, Library of Congress. JOHN MONTGOMERY WARD: THE LAWYER WHO TOOK ON BASEBALL Christopher W. Schmidt

s 1888 drew to a close, John with “few equals and no superiors,” Montgomery Ward stood and “by long odds the most popu- atop the world of profes- lar player in the profession.” These Asional baseball. The star shortstop accomplishments would eventually had just led the New York Giants earn Ward a place in the Baseball to the National League pennant, fol- Hall of Fame. lowed by a triumph over the St. Louis Ward’s skills on the ball field were Browns of the rival American Asso- only a part of what made him such a ciation in what even then went by remarkable figure. Contemporaries the inflated title of baseball’s “World and historians alike have struggled to Series.” A dominating pitcher early describe him. One adjective-happy in his career (he threw the second biographer took the saturation ap- perfect game in major league his- proach: he was a “jug-eared, willowy, tory), an arm injury forced Ward peach-fuzzed, overreaching punk” to recreate himself as an infielder, as well as “honorable, smart, and te- where he became one of the best nacious.” More admired than liked fielders and hitters of his era. He was seems to have been the consensus lauded in the press as a ballplayer view of Ward contemporaries. In a Christopher W. Schmidt 45 profession not known for intellectu- ported the New York Times. “But alism, he stood out. Although Ward the thousands of spectators who ob- left school at the age of thirteen in served Miss Dauvray’s emotions lit- order to pursue his baseball career, tle suspected that one of the Giants he eventually earned, in his spare had any precedence over the others time, degrees in political science and so far as her affections were con- law from Columbia. He was said to cerned.” She had donated the Tiffany speak five languages. A regular con- trophy that went to the World Series tributor to newspapers and periodi- champion; it was the “Dauvray Cup” cals, in 1888 he published Baseball: that her husband brought home at How to Become a Player, which he the end of the 1888 season. In How described as a “handbook of the to Become a Player, the ever gallant game, a picture of the play as seen by Ward included a chapter explaining a player.” the basics of the game “for the ben- Ward was also a pioneering labor efit of those ladies whose escorts ei- leader. In 1885, he established Amer- ther cannot, or will not, answer their ica’s first sports union, the Broth- questions.” He also offered advice for erhood of Professional Base Ball his gentleman readers: “Whoever Players. Initially designed to help has not experienced the pleasure of sick, injured, or hard-up ballplayers taking a young lady to her first game and promote professional standards, of ball should seize the first opportu- the Brotherhood quickly evolved nity to do so.” into something approaching a craft Life was not all three-hit games union for ballplayers. Ward had for- and celebrity life for the great Mon- ward-looking attitudes on race as te Ward, however. His relationship well. At a time when the color line with Helen Dauvray was strained was hardening in American society, almost from the start. He was carry- and organized baseball had become ing on an affair, and she knew it; she a whites-only affair, Ward urged the wanted to return to the stage, and he Giants to sign an African-American didn’t want her to. They lived togeth- pitcher. er for only a year and soon divorced. If all this wasn’t enough, Ward’s His baseball career too was about social life was also noteworthy. In to veer off in some unexpected direc- 1887 he married a New York actress tions. Following his World Series tri- and socialite, Helen Dauvray, who umph, Ward captained a team of Na- also happened to be a passionate tional League all-stars that traveled baseball fan. “Her tiny hands beat around the globe between October each other rapturously at every vic- 1888 and April 1889 in an effort to tory of the Giants and her dark eyes promote the game overseas. It was a were bedewed at every defeat,” re- grand gesture, fitting for an emerg- 46 Then & Now: Stories of Law and Progress tional League in addition to a bur- geoning sporting goods empire. The game never had a more effective and more passionate salesman. Baseball, he once wrote, captured the nation because “it is the exponent of Amer- ican Courage, Confidence, Combat- iveness; American Dash, Discipline, Determination; American Energy, Eagerness, Enthusiasm; American Pluck, Persistency, Performance; American Spirit, Sagacity, Success; American Vim, Vigor, Virility.” (Spalding also basically created baseball’s all-American birth myth, which conveniently featured a future Civil War hero, Abner Doubleday, in 1839 dreaming up the game in bucolic Cooperstown, New York. In fact, baseball had largely evolved from various children’s games; if it ever had a proper birth moment, it was among young professionals in 1840s ing era of American nationalism New York City.) Spalding envisioned and confidence on the international the world tour as an opportunity to scene. But the world tour also helped sell two things he loved above all: set in motion one of the most signif- the game of baseball and the equip- icant upheavals in baseball’s history. ment that bore his name. Despite his The man who organized and led the background as a player, and despite tour around the globe was Albert his overwrought romanticism about Goodwill Spalding. Soon after they the national pastime, Spalding ap- returned home, he and Ward would proached his role as a team owner face off in an epic struggle for the fu- from the perspective of the captain ture of the game. of industry that he had become: the Spalding, a star pitcher in his players were employees, and com- younger years, now owned the Chi- fortably paid ones at that; and it was cago White Stockings of the Na- the owner’s job to control costs and John M. Ward, New York Giants baseball card por- ensure a compliant workforce. Need- trait, 1887, Library of Congress. Facing: Photo of Albert Goodwill Spalding, 1910, Bain Collection, less to say, he didn’t think much of Library of Congress. Ward’s efforts with the Brotherhood. Christopher W. Schmidt 47 he world tour had just reached TCairo, Egypt, in February 1889 when the players received news that, at their winter meetings in New York, the National League owners had adopted a major reform designed to reign in player salaries. They created a player classification system under which “Class A” players earned $2,500, “Class B” players $2,250, and so on, down to “Class E” players who earned $1,500. The clas- sifications scheme took into account not only player ability, but also “conduct, both on and off the field.” Ward, who had already established himself as his generation’s most outspoken critic of baseball’s sential to ensuring the stability of distinctive labor practices, saw the the game. It did indeed further this plan as an affront to the players. goal. But there was another reason, What made working as a profes- one they didn’t trumpet so proud- sional ballplayer different from any ly: it kept down player salaries. And other occupation was the “reserve here too it was effective. In the late clause,” a provision in player con- 1880s, as club profits tripled, player tracts under which an owner could salaries grew by only 30 percent, a “reserve” a number of players when fact at least partly attributable to the the term of their contracts ended. reserve system. The clause prohibited the player In 1887, Ward had a scathing at- from negotiating with another team tack on the reserve clause, titled “Is unless his team released him. As the Base-Ball Player a Chattel?” He professional baseball was controlled compared the reserve clause to “a fu- by an agreement between the teams gitive-slave law”: it “denies [the play- under which each team agreed to er] a harbor or a livelihood, and car- respect the player contracts of oth- ries him back, bound and shackled, er teams, the reserved player faced to the club from which he attempted three options: sign a new contract to escape.” The remedy, according to at the terms dictated by the owner; Ward, was simple: get rid of “base- hold out and hope for better terms; ball law” and allow “the business of or stop playing baseball. Owners base-ball to be made to rest on the defended the reserve clause as es- ordinary business basis.” 48 Then & Now: Stories of Law and Progress When he learned of the owners’ had National League teams. But the classification plan, Ward was so in- business model behind the Players censed he threatened to abandon the League was radically different from world tour to come home and con- anything that had come before. front the owners. (The news that the Each club was run by an eight-man Giants were trying to trade him only board, consisting of four players and added to his frustration.) He sus- four investors. The league was gov- pected that Spalding had planned the erned by a senate-like organization, entire trip just to get him and some with two representatives from each of his allies out of the country in or- team (one elected by players, one by der to go forward with their plans. owners). Players had three-year con- If this was indeed Spalding’s plan tracts, and no reserve clause. Inves- (and there is no evidence it was), it tors were promised the first $10,000 backfired, as the tour ended up giv- of each club’s net profit, with the rest ing some of the game’s top players to be divided among the players. long hours to share their grievances. Spalding and the National League The plan for the baseball revolution attacked the Players League. First, that would upend the game in 1890 they turned to the courts: the Giants might very well have been hatched sued Ward for breach of contract. in quiet conversation among the Ward had violated the terms of his players while on Spalding’s world reserve clause, they claimed, and tour. Nearly all the players on the they asked a New York state court tour would join Ward’s revolt against to issue an injunction prohibiting the National League. Ward from playing for anyone else. During the 1889 season, Ward The court denied the injunction. As began preparations for the creation the reserve clause failed to specify of a rival major league, the Players such essentials as Ward’s salary and League. Working in secret (he was, the terms of the renewed contract, after all, still on the enemy’s payroll), the judge concluded that it was too he found financial backing and con- indefinite to be treated as a bind- vinced many of his fellow players ing contract for the 1890 season. to commit to the new league. Some The court also raised the disturbing aspects of the Players League looked question of whether, assuming the familiar. The players were famil- reserve clause were read to consti- iar—the new league lured many of tute a binding contract for the fol- the best National League players to lowing season, the renewed contract its rosters. And the cities in which would also include a reserve clause. they played were familiar—the sev- If so, the player would be tied to his en cities in which their eight teams current team for as long as the team played were all cities that already desired, while the team could release Christopher W. Schmidt 49 a player with only 10 days’ notice. olution was over. This was rather absurd, according Ward returned to the National to the judge. “We have the spectacle League, where he played four more presented of a contract which binds seasons. He was still one of the best one party for a series of years and players in the league when he retired the other party for 10 days, and of in 1894. He went on to be a success- the party who is itself bound for ten ful lawyer, a gentleman farmer, and days coming into a court of equity to a top amateur golfer. Although he enforce its claims against the party mended fences with organized base- bound for years.” The judge conclud- ball, his passion for the cause he had ed that the reserve clause was unen- led never left him. In 1925, shortly forceable for “want of fairness and of before his death, he gave a speech— mutuality.” at an event to celebrate the National With the courts refusing to help, League, of all places—recounting Spalding turned to public opinion. the events of 1888–1890 in which he He pulled out all the rhetorical stops. made clear that the war against the What the players were doing was National League, while doomed, was “secession,” a “revolt,” a “war”; the justified. National League was confronting “hot headed anarchists” who were or a brief moment, the Players leading a “revolutionary movement.” FLeague presented a radical al- But the fall of the Players League ternative business model for profes- after just one season came not from sional sports, one in which the play- Spalding’s attacks in the press, nor ers and owners shared control of the from legal challenges. It came from game as well as its profits. With the the marketplace. The new league failure of Ward’s baseball revolution, had the best players, but this was not the owner-dominated system lived enough. With three major leagues on. In the following decades, various competing for a limited fan base, teams would go to court to have the everyone suffered at the gate. At reserve clause enforced against play- season’s end, when Spalding opened ers who had jumped their contracts negotiations with Players League in- (a relatively common occurrence vestors, he pointedly excluded Ward any time there was a rival league that and any other players. “[T]he mon- refused to abide by the agreement ied men met with the monied men,” that controlled the baseball monop- as Spalding put it. The National League oly). Judges, with only the rarest of owners simply bought out their exceptions, sided with the players, competition; several Players League often citing Ward’s case as authori- clubs were integrated into a recon- ty on the matter. The reserve clause figured National League. Ward’s rev- lived on, however, and it did so be- 50 Then & Now: Stories of Law and Progress cause the baseball monopoly, while the fall of the reserve clause, the game’s periodically challenged, remained in profits are far more evenly distrib- place. As long as owners respected uted between players and owners. the contracts of their on-the-field It took almost a century, but John competitors, they did not need the Montgomery Ward’s vision for ma- courts. For this reason, the most jor league baseball has, in some part, significant legal challenges to base- been realized. ◆ ball’s unique labor practices came in the realm of antitrust, not contract law. But baseball law survived this Sources and Further Reading ■ Stuart Banner, The Baseball Trust: A History of challenge too, as the United States Baseball’s Antitrust Exemption (2013). Supreme Court granted, and then ■ Robert F. Burk, Never Just a Game: Players, Own- ers, & American Baseball to 1920 (1994). twice reaffirmed, that federal anti- ■ Brian Di Salvatore, A Clever Base-Ballist: The Life trust law did not apply to profession- and Times of John Montgomery Ward (1999). ■ Mark Lamster, Spalding’s World Tour: The Epic al baseball. Adventure That Took Baseball Around the Globe— When change eventually came in And Made It America’s Game (2006). the 1970s, it was at the hands of an- ■ Harold Seymour, Baseball: The Early Years (1960). other organized players movement, but this time it was achieved not through a rival league but through Christopher W. Schmidt graduated labor negotiations (with a critical as- from Dartmouth College and received his sist from a sympathetic arbiter). To- law degree from Harvard Law School and day, major league baseball operates a Ph.D. in the History of American Civ- in a way that has some similarities ilization from Harvard University. Prior to the core premise of the alternative to joining the faculty at Chicago-Kent in model Ward had offered. The game 2008, he taught history at Phillips Acad- emy, Andover, and Dartmouth College. is governed, in large part, through His scholarship focuses mostly on consti- collective bargaining agreements be- tutional law, legal history, and civil rights, tween players and owners. With the with occasional teaching and writing for- skyrocketing of player salaries after ays into sports law and history. •

51 52 Then & Now: Stories of Law and Progress

“The fog,” Puck cartoon by Will Crawford, 1911, Library of Congress. U.S. ANTITRUST: FROM SHOT IN THE DARK TO GLOBAL LEADERSHIP David J. Gerber

hen the United States these laws. It is the touchstone and Congress enacted the frame of reference for international first “antitrust” law in discussions, and it is often used as W1890 it was taking a shot in the dark. a model or at least a major source At the time there was no concept of of guidance by other countries in “antitrust law”—i.e., a general le- developing their own competition gal regime intended to combat re- laws. The story is extraordinary, in- straints on competition. Today more terwoven with the roles of power than 100 countries have such laws, and ideas and intertwined with the including all significant participants evolution of the U.S. and its role in in the global economy. Competition the world. This brief essay sketches law has become a major factor in eco- its trajectory. Chicago-Kent’s role as nomic life throughout much of the an educational institution tracks that world. U.S. antitrust law has played trajectory. a central role in this remarkable evolution, and it is generally acknowl- edged to be the most important of David J. Gerber 53 I. A Shot in the Dark nesses. These firms often dominated specific industries, and this domi- his new type of legislation was nance allowed them to exclude new Ta “shot in the dark” in the sense entrants from those industries. It that few, if any, of the legislators had also allowed them to extract what any way of knowing what conse- many viewed as unfair prices and quences the legislation would have. conditions on their suppliers as well They were “shooting” at something, as their employees. This led to an- but they didn’t know what they ger at the power of these so-called might actually hit. So what were they “trusts” and often combined with trying to do and why? anger at the power of their owners Antitrust law was, above all, a to control the destinies and stifle response to social turbulence and the possibilities of others, especially tensions. The United States in the those in other parts of the country. 1880s presented a complex mixture A specific catalyst for antitrust law of hope, fear and resentments. The was rising anger among Midwestern terrible Civil War was a memory, farming communities at what they but not a distant one. Rapid indus- saw as rapacious and monopolistic trialization was creating great wealth conduct by railroad companies and for a few and jobs for many. Immi- others whom they believed were gration was bringing millions from manipulating prices paid to farm- Europe to take those jobs and to find ers for their grain and livestock. land to farm in the Midwest and the Groups representing these interests West. Yet the rapid changes also gen- pressured their representatives in erated sectional conflicts and social Congress to do something about the tensions, and political and legal in- “trusts” that were amassing fortunes stitutions strained to respond effec- for a few, but exploiting vast num- tively to them. bers of hard-working farmers and This mixture of pressures, con- tradesmen. flicts and resentments led Congress Congress responded to this to enact what came to be known as pressure by enacting the Sherman antitrust law. One key background Antitrust Act in 1890. The name factor was the resentment that many that soon attached to the legisla- felt towards the new super rich and tion—“anti-trust”—reflected its goals. their lavish and ostentatious life- It was a tool to be used to combat the styles. Located primarily in New monopolistic abuses of very large York and other cities on the East enterprises. There was, however, no Coast, these groups had achieved model for Congress to use in doing great wealth quickly, often through what it wanted to do—or wanted control of large manufacturing busi- to appear to be doing. So Congress 54 Then & Now: Stories of Law and Progress “punted”—it simply federalized two the basis of the legislation, and this barely used legal principles. It took was confirmed a few years later. two concepts from the common law This was the “shot in the dark!” that had been used for quite different The U.S. Congress was responding purposes, first in England and then to specific domestic pressures. The to a limited extent in the U.S., and it legislators just took common law made them enforceable under fed- concepts and gave the federal gov- eral law. The statute was very short, ernment authority to use them in and its basics have not changed since the federal courts. The legislators 1890. The first concept was “restraint paid little, if any, attention to how of trade.” This concept had been others in the world had dealt with used primarily in civil cases to com- similar issues or what, if anything, bat overly restrictive provisions in they might think about the U.S. ex- contracts. The second basic idea was periment. They just experimented, “monopolization.” It had also been basically relying on judges to sort part of the English common law, but out the issues and develop the law. for centuries it had been little used in either England or the U.S. The leg- II. An Antitrust System Develops islation contained virtually no guidance as to the substantive content of rior to the Second World War the provisions, leaving issues of con- Pthe system evolved slowly and tent to the federal courts. fitfully according to a pragmatic, The Sherman Act transformed court-based process—typical of U.S. the role of these private law concepts legal development generally. The by providing that the federal govern- judges were solving the conflicts be- ment could enforce them. Congress fore them, and there is little evidence appears to have given little thought that they thought about their deci- to how this was to take place. It did sions as creating a “system” of an- not create specific procedure for the titrust law. They relied on accumu- enforcement of the antitrust provi- lated practical experience, domestic sions. It merely authorized the U.S. conceptions of the judicial role, and Justice Department to file claims in often on ideologies about the role the regular courts, using the normal of markets as they shaped the con- rules for civil proceedings. Given that tent and roles of antitrust in the U.S. the federal government was still very There were relatively few cases, and small in 1890, the legislators could other than in a few large companies hardly have envisioned extensive there was relatively little interest in federal administrative application of this area of the law. the provisions. Some assumed that After the war the roles and im- private actions could be brought on portance of antitrust law expanded David J. Gerber 55 greatly. One factor was transna- legal environment of business and as tional. Antitrust came to be seen in such it attracted strong interest from the U.S. as a part of a global “mis- lawyers. The growing importance of sion” to provide an antidote to fas- antitrust meant that law schools in- cism and to support freedom. Many creased their offerings in the area. believed that the concentrations of According to Ralph Brill, antitrust was economic power in Germany and first taught at Chicago-Kent College Japan were at least in part respon- of Law in 1973. This also meant, how- sible for the horrors of the Second ever, that antitrust represented a major World War, and they saw antitrust cost for many U.S. businesses. These as a means of preventing such con- costs were tolerated as long as econom- centrations or at least curbing the ic factors (especially currency and reg- resulting abuses. This led U.S. gov- ulatory obstacles) buffered U.S. firms ernment officials and others actively from international competition. to promote antitrust in Europe. A In the 1970s the international European version of antitrust law economic picture changed markedly, had begun to develop in the 1920s, and these changes in global econom- but it had not gained much status in ic conditions generated a fundamen- most European countries, and thus tal change in U.S. antitrust law. The U.S. antitrust became a symbol of re- “oil shocks” of the early 1970s and the structuring in Europe, both in indi- concomitant international currency vidual countries and in connection restructuring led to increased aware- with the process of European inte- ness in the U.S. business communi- gration. At the same time, the eco- ty of the need for U.S. businesses to nomic and political dominance of compete internationally. Antitrust the U.S. in the so-called “free world” now began to appear as a burden on allowed the U.S. to apply its antitrust the U.S. economy, and this led schol- law to conduct outside its own ter- ars to examine ever more carefully ritory and thus further support the the intellectual justification for such antitrust mission. burdens. Economists and law pro- This heightened political, sym- fessors increasingly argued that the bolic and economic importance of courts had expanded antitrust law antitrust on the international plane too far and that the entire edifice of combined with the de facto protec- antitrust law should be viewed from tion of the U.S. market encouraged the perspective of its economic im- rapid growth in the perceived impor- pact. This perspective quickly won tance of antitrust within the U.S. and favor in the courts and law faculties, the expansion of antitrust principles. and within a few years it led to a rad- By the early 1970s antitrust had be- ical revision of standards for antitrust come a very important part of the law in the U.S. The central substantive 56 Then & Now: Stories of Law and Progress law questions were now to be judged on how foreign experts, lawyers, by economists according to economic government officials and business criteria. leaders see U.S. antitrust. They will make decisions about what to do in III. Global Competition Law Lead- their own countries and on the inter- ership national level. This means that their perspectives on the U.S. system are he “shot in the dark” that was critical to its roles both at home and Tthe U.S. antitrust law system is abroad, and foreign images of U.S. today no longer solely a domestic antitrust have changed radically. Prior field of law. It is now also a critical- to the Second World War, those in ly important component of global Europe who knew anything about economic policy! The system that U.S. antitrust law (and they were U.S. judges had evolved to deal with few) generally considered it a mis- purely domestic problems and that take. They tended to see it as a fail- relied on little more than confidence ure that actually created more harm in the capacity of courts to devel- than good by forcing companies to op reasonable responses to con- merge rather than cooperate. This flicts has been transformed into the view predominated in large measure central player in efforts to respond until after the Second World War. effectively to economic and other The Europeans were developing a forms of globalization. It is now a different concept of competition law U.S. export product, and the stakes that emphasized administrative con- are enormous. What directions and trol of dominant firms. This concep- forms will the rules of competition tion of competition was spreading take? Treatment of these issues will rapidly in Europe in the 1920s, but be a factor in the future of many depression and war led to its virtual countries, including the U.S., and abandonment. for more than two decades Chica- After that war ended, however, go-Kent has brought transnational U.S. antitrust law became associated competition law to our students, and with U.S. economic dominance in Chicago-Kent faculty have contrib- the “free world.” The real and imag- uted to the international discussion ined connections between economic of these issues. concentration and military expansion in both Germany and Japan A. Foreign Interactions and Percep- convinced many that U.S.-style anti- tions trust law should be used to combat such concentrations. U.S. occupa- U.S. antitrust now plays on a tion forces in Germany and Japan global stage, and much will depend imposed U.S. antitrust ideas during David J. Gerber 57

Title page of Control of the Market, by Bruce Wyman, 1911, Library of Congress. the occupation period, and the U.S. U.S. antitrust law—i.e., protecting insisted that both countries either the competitive process from re- enact or maintain competition law straints—was part of this model of after the occupation. This increased competition law, but the model itself awareness of these ideas abroad. was conceptually and institutionally Perhaps more important, however, quite distinct. European scholars and was the perception that antitrust officials in these areas often looked was a source of strength for the U.S. to U.S. antitrust for comparisons and economy and thus a potential spur insights into problems, but there was to growth that other countries could relatively little interaction between employ. U.S. and European forms of compe- U.S.-style antitrust did not, how- tition law until the 1990s. ever, always fit well with European In the 1990s these relationships legal traditions and institutions, and became far closer and more import- in most European countries skepti- ant for both the U.S. and Europe- cism toward the U.S. model limited ans. Moreover, the fall of the Soviet progress in protecting competition. Union precipitated widespread in- In Germany, however, a separate set terest in market-based approaches of ideas about how to protect com- around the world and revived the petition developed in the 1930s and messianic tenor of the U.S. antitrust 1940s in the underground, and af- law community. Many countries ter the war it became the basis for that had socialist or other com- German antitrust law. From here mand-based approaches to the or- it spread to the European level and ganization of economic activity now became part of the process of Euro- introduced antitrust laws or signifi- pean integration. The basic idea of cantly increased their investment in 58 Then & Now: Stories of Law and Progress the enforcement of such laws. Often Only then will they be in a position they looked to U.S. antitrust officials, adequately to evaluate it, compare lawyers and scholars for help in im- it with their own systems and make plementing or evaluating their new informed choices in relation to it. activities. There are many obstacles—linguis- tic, comparative, political and eco- B. Policy Issues and Obstacles nomic—to achieving an adequate understanding of the U.S. system This has raised a critically im- and of the implications of various portant issue: How will/should policy choices for the global system competition law on global markets and for individual components of it. be implemented? Globalization has Moreover, it is critical that U.S. law- shown the limitations and distor- yers, officials and scholars acquire a tions of the traditional jurisdictional better understanding of the compe- system—e.g., differing rules and tition law elsewhere and thus of the procedures for different parts of the potential bases for convergence and same economic market. Many in coordination on the global level. the U.S. and elsewhere believe that the best response to these problems IV. Concluding Comments is to encourage all countries to follow at least the basic substantive law former U.S. antitrust official not approach of the U.S. antitrust law Along ago wrote that U.S. anti- system. This would generate conver- trust is (or could be) the “light of the gence among competition law sys- world.” That might be a bit strong, tems around the world and reduce but U.S. antitrust certainly does play the harms caused by current jurisdic- a key role in the development of the tional arrangements. Many others are, global economy and its many com- however, skeptical that the U.S. model ponents. Now the big question is should be the focus of convergence. whether U.S. legal thinking and the They often see some form of coordina- creative and pragmatic impulses that tion (perhaps at the World Trade Or- have been so much a part of U.S. an- ganization level) as the best response. titrust law will continue to provide How these foreign decision mak- the leadership that can make the ers and decision shapers understand most of these opportunities. and evaluate U.S. antitrust law is These changes have important critical to this set of decisions. It is implications for U.S. legal education. important, therefore, that they un- At Chicago-Kent College of Law, derstand as clearly as possible how we are doing our part. Here, and U.S. antitrust law works and what at some other leading law schools, the guiding ideas are behind the law. these issues have generated increas- David J. Gerber 59 ing attention. Since the 1980s, and Sources and Further Reading even more so since the early 1990s, I and ■ David J. Gerber, Global Competition: Law, Mar- kets and Globalization (2010). others have included transnational issues ■ David J. Gerber, Law and Competition in Twenti- in the domestic antitrust course and eth Century Europe: Protecting Prometheus (1998). ■ Herbert Hovenkamp, Enterprise and American included an antitrust focus in courses Law, 1836–1937 (1991). such as international business trans- ■ William Letwin, Law and Economic Policy in America: The Evolution of the Sherman Act (1965). actions. I have also long offered a ■ Rudolph J. R. Peritz, Competition Policy in America, seminar in international and com- 1888–1992: History, Rhetoric, Law (1996). parative antitrust law that tackles these issues directly. These efforts have two central objectives. One is to educate U.S. lawyers to perform more effectively in this new global David J. Gerber teaches antitrust law, context. The other is to educate for- comparative law and more specialized eign lawyers about U.S. antitrust law seminars such as international and com- and provide them with tools for un- parative competition law. He has been a member of the Chicago-Kent faculty since derstanding and evaluating it and its 1982. After graduating from the Uni- global roles. versity of Chicago Law School, Professor One fact stands out in 2013 at the Gerber practiced law in New York City celebration of Chicago-Kent’s 125 and then spent several years working in years of teaching law. The U.S. will a German law firm and in several uni- have to earn its leading role in anti- versities in Europe. He frequently lectures and teaches in various universities and trust law on the global level. Effec- other institutions in Europe, Asia and tive legal education in this area will elsewhere. His most recent book is Global be a key element in whether it will be Competition: Law, Markets and Globaliza- successful in achieving that goal. ◆ tion (Oxford Univ. Press, 2010, pbk. 2012). 60 Then & Now: Stories of Law and Progress

Illustration, from The Life of David S. Terry, by A. E. Wagstaff, 1892, Internet Archive, http://www.archive.org/ details/lifeofdavidsterr00wags, p. 410.

THE LEGACY OF IN RE NEAGLE Harold J. Krent

or generations, commenta- appointments. Congress and the tors have decried the fact that courts have fought back to limit the we live in an era of an impe- scope of presidential power, at least Frial presidency. The second Presi- in discrete contexts. dent Bush famously (or infamously) Somewhat lost in history, a com- ignored Congress in subjecting sus- parable battle over executive power pected terrorists around the world to brewed one hundred and twenty-five military commissions at Guantanamo years ago, culminating in the U.S. Bay and citizens and suspected ter- Supreme Court’s 1890 decision in In rorists alike to warrantless surveil- re Neagle, 135 U.S. 1 (1890). The case lance of their phone calls. President questioned the President’s inherent Barack Obama, like his predecessor, authority to assign a U.S. Marshal has used executive power to shape to protect the life of Stephen Field, a rules and regulations that Congress sitting United States Supreme Court had delegated to subordinates in Justice. Marshal Neagle confronted agencies as opposed to the President the potential assailant, David Terry, directly. Both Presidents claimed and killed him when he thought Jus- broad power to circumvent the Sen- tice Field’s life was in danger. Cali- ate’s power to consent to treaties and fornia authorities were none too Harold J. Krent 61 pleased given that Terry had been so Sharon from some of his enormous prominent in California political life wealth. She made a demand on and that Terry likely was unarmed. Sharon for alimony, asserting that Local officials indicted and then -im Sharon had married her some three prisoned Neagle for killing the Cali- years earlier when they had started fornian. their “companionship.” In so do- Events leading up to the Supreme ing, she presented what likely were Court decision read like a soap opera, forged documents attesting to the perhaps revealing more about the marriage relationship. Sharon sued interplay of society and politics than in federal court in California (due does the decision itself. The history to diversity of citizenship) in 1883 of the case starts with David Terry, for a declaration that no marriage who before the Civil War served had ever taken place. Hill then filed on California’s Supreme Court with her own suit in state court in 1884 Justice Stephen Field. Terry gained to demonstrate that the marriage notoriety by challenging Senator was valid and requested a share of Broderick from California, a for- Sharon’s property. She hired Terry as mer friend who was also a friend of one of her attorneys. Field’s, to a duel, which left Broder- The state court bizarrely decided ick dead. The dispute centered over the case in Hill’s favor even though political rivalries, in part due to Ter- the judge labeled Hill a liar. Sharon ry’s sympathy with the Confederacy. immediately appealed to the Cali- Terry was acquitted and then left fornia Supreme Court but died be- California to support the South in fore the case was heard. His executor the Civil War. After the War, Terry pursued the appeal. returned to law practice and politics In the meantime, the federal suit in California and, of relevance here, proceeded slowly, prompting more within twenty years fell within the aberrant behavior from Hill. She orbit of an apparently glamorous but sported a pistol at many of the pro- unstable woman named Sarah Al- ceedings, and waved it at witnesses. thea Hill. She threatened to have adverse wit- In the late 1870s, Hill became nesses and their counsel killed. Al- the companion of Senator William though Justice Field, by then serving Sharon of Nevada, who had amassed on the U.S. Supreme Court, was not great sums from real estate and assigned to preside over the case, mining investments. Sharon, who he was assigned as a Justice riding was much older than Hill, evidently on circuit to hear several motions sundered relations when he suspect- arising out of the case. During one ed Hill’s designs on his money. Hill proceeding, Justice Field in an effort continued to plot how to separate to maintain decorum ordered that 62 Then & Now: Stories of Law and Progress Ms. Hill be disarmed, and he found Terry claimed that Field’s decision had her in contempt of court. At the end been bought with Sharon’s money. Ter- of the proceedings in 1886, the fed- ry then sought a pardon from Presi- eral court determined that the mar- dent Grover Cleveland, asserting in riage was a sham and the documents part that Field was retaliating against forged. him for refusing to throw his support Terry then married Hill, man- to Field in a prior presidential pri- ifesting an intriguing view of the mary. Cleveland declined, and Terry attorney-client relationship. More served out his short term. importantly, the marriage placed Upon release, Terry apparently pressure on his successors on the became even more consumed by California Supreme Court to uphold revenge, broadcasting widely his the state court finding that Hill had intent to harm Justice Field. When been married to Sharon. A divided Justice Field traveled back west from California Supreme Court acqui- Washington, newspapers speculated esced, affirming the trial court’s -de on when the confrontation would cision that a valid marriage had in- occur. Accordingly, President Benja- deed taken place. min Harrison through his Attorney In a complicated procedural General assigned Marshal Neagle to move, the estate then moved to revive protect Justice Field. the federal court decree and enjoin both Hill and Terry from maintain- he confrontation arose in the ing the validity of the prior marriage, Tsummer of 1889 when Field despite the state court ruling. At traveled by train from San Francis- this point, the case was assigned to co to Los Angeles. Terry and his wife U.S. Supreme Court Justice Stephen boarded the train at a stop along Field, sitting by designation. Field the way and entered a dining room in 1888 determined that Hill had in which Justice Field was eating obtained the marriage documents breakfast. Hill left the room—pre- through fraud. As he orally delivered sumably to gather her pistol from her the decision, Hill caused a commo- chamber—but her husband did not tion in the courtroom protesting the wait and circled behind Justice Field ruling and had to be escorted out. and delivered two blows to his head. Terry in a display of chivalry there- Neagle, the marshal, announced his upon attacked the marshal for car- presence and called on Terry to stop. rying out Field’s order. Field ordered Terry made a move as if to draw a both Terry, his former associate on knife that he customarily carried, the California Supreme Court, and and Neagle responded with two Hill imprisoned for contempt of shots from his pistol, killing the court. Hill threatened Field’s life and assailant. Harold J. Krent 63

Illustration, San Francisco Examiner, 1888, shows Terry attacking a marshal for removing Mrs. Terry from the courtroom, U.S. Marshals website, http://www.justice.gov/marshals.

A local constable arrested Nea- Marshal Neagle was not as for- gle on the spot. Ms. Terry, upon her tunate—he unquestionably fired return to San Francisco, swore out a the shots that killed Terry. He filed complaint for murder against both a similar writ of habeas corpus from Field and Neagle. California author- a California prison, asserting that ities then arrested Field who was he acted within the line of duty in released under a bond. An eastern protecting Justice Field’s life. He was newspaper reported the following moved to San Francisco, but remained imaginary dialogue: behind bars. He argued that, to the extent his actions were undertaken pur- Newsboy: “Man tried to kill a judge suant to federal authority, his conduct in California!” could only be challenged in federal Customer: “What was done about it?” court. The federal court eventually Newsboy: “Oh! They arrested the scheduled a hearing, and upheld the judge.” writ, reasoning in part that “upon general, immutable principles, the Field immediately filed for a writ power must be necessarily inherent of habeas corpus, and the federal in the executive department of any court within a matter of days grant- government worthy of the name of ed Justice Field’s writ, ending Justice government, to protect itself in all Field’s stay at the other end of the matters to which its authority ex- courtroom. tends; and this necessarily involves 64 Then & Now: Stories of Law and Progress

In re Neagle Supreme Court decision, 135 U.S. 1 (1890), photo by Emily Barney.

the power to protect all the agency generation—including petitions for and instrumentalities necessary to secession filed in the wake of Pres- accomplish the objects and purposes ident Obama’s 2012 victory—few of government.” The Supreme Court proponents today would be so bold accepted the case for review at Cali- as to approve of California’s im- fornia’s request. prisonment of a U.S. Marshal who On one level, In re Neagle reflects unquestionably was acting pursu- the generation-old conflict inherent ant to the President’s orders, not to in our system of federalism. Some mention local authorities’ decision Californians were resentful that the to arrest Justice Field himself. The federal courts did not respect the story reminds us that, no matter state courts’ determination that a how intense regional divides may be valid marriage had been entered into today, they pale before the tensions between Hill and Sharon. Moreover, between states and the federal gov- authorities in California were more ernment over a century ago. than willing to imprison and indict But, the facts underlying the case a U.S. Marshal, even when the Mar- reveal more—a sordid tale of love shal was following presidential or- gone awry, reminiscent of politi- ders. Others in California believed cians’ struggles more recently, from that California courts should be Senator Gary Hart’s famed ride on trusted to determine whether Nea- the aptly named boat “Monkey Busi- gle’s defense was valid without in- ness” to President Bill Clinton’s fling terference from the federal courts. with an intern, and from Wilbur Whatever one thinks of the resur- Mills’ dalliance with the Argentinian gent importance of federalism in our stripper Fanne Foxe to Representa- Harold J. Krent 65 tive Anthony Weiner’s more recent malice and hatred of those upon debacle of sexting. Politicians’ affairs whom their judgments may operate impact not only political races, but unfavorably.” Presidents can “infer” Supreme Court decisions as well. powers from the Constitution—in- Clinton v. Jones, 520 U.S. 681 (1997), cluding the duty to protect Justices was not the first Supreme Court case from harm. In the case, those non- on presidential power sparked by statutory or “inferrible” powers dis- politicians’ sexual misconduct. placed California’s authority to try Neagle for murder and provided he doctrinal legacy of In re Neagle a complete defense to the TNeagle endures. A divided U.S. charge. Although the accumulation Supreme Court, with Justice Field of powers and responsibilities over recusing himself, held that the Pres- the last 125 years has radically trans- ident enjoys a residuum of authority formed the presidency, the debate under Article II of the Constitution over the scope of presidential powers to take steps to protect the nation under Article II is not new. There is a even if those steps are not spelled out residuum of authority under Article by Congress. In presaging presiden- II—even if the extent remains in bit- tial power debates of the last decade, ter dispute—permitting presidents the Court concluded that the Presi- leeway to ensure protection of the dent could rely on powers not direct- government and the nation itself. ◆ ly rooted in the text of the Consti- tution in safeguarding the country. The Court explained, “In the view Sources and Further Reading ■ George C. Gorham, The Story of the Attempted we take of the Constitution of the Assassination of Justice Field (1893). United States, any obligation fair- ■ Robert H. Kroninger, Sarah and the Senator (1964). ly and properly inferrible from that ■ Alexander E. Wagstaff,Life of David S. Terry, instrument” is appropriate, includ- (1892). ing the duty to protect a Supreme Court Justice, even in the absence of explicit congressional authorization. Harold J. Krent graduated from Princ- The Court continued that “it would eton University and received his law de- be a great reproach to the system gree from New York University School of of government of the United States, Law. He has been teaching full-time since declared to be within its sphere sov- 1987 and has focused his scholarship on ereign and supreme, if there is to be legal aspects of individuals’ interaction with the government. Dean Krent joined found within the domain of its pow- the IIT Chicago-Kent faculty in 1994. He ers no means of protecting the judg- was appointed Associate Dean in 1997 es, in the conscientious and faithful and Interim Dean in 2002 before assum- discharge of their duties, from the ing the deanship on January 1, 2003. 66 Then & Now: Stories of Law and Progress

“First woman jury, Los Angeles,” photo by Bain News Service, 1911, Bain Collection, Library of Congress. THE CHANGING COMPOSITION OF THE AMERICAN JURY Nancy S. Marder

hen IIT Chicago-Kent have two deeply-held views about College of Law was the jury. The first is that the jury is founded 125 years ago, meant to represent all of us—“we Wmany of our key legal institutions, the people”—by reflecting our di- such as the jury, were well estab- versity as much as is practical. In lished. By 1888, the year of our every high-profile jury case, much school’s founding, the jury was seen attention is paid to the diversity of as an institution that provided jus- the jury. In particular, we care about tice in a nation created by a revo- race and gender more than almost lution of “we the people.” Although any other characteristics. Although it no longer seems remarkable to us the diversity of the venire is en- today, the jury system gave ordinary shrined in several Supreme Court citizens, untutored in the law, the cases, the diversity of the petit jury power to decide cases and to dis- is reinforced by the portrayal of the pense justice. jury in popular culture. Today, reinforced by movies, The second widely-held view is television shows, and constant me- that the jury has one job, and that is dia coverage, the American people to determine the facts. Although a Nancy S. Marder 67 jury trial is presided over by a judge the role of the jury, so that it decided and involves decision-making about only the facts, happened gradually the law, the jury ostensibly plays no from about 1850 to the 1930s. Some role in determining which laws ap- researchers believe that as the prac- ply or what standards should be met. tice of law became more profession- This arrangement seems sensible be- al, the distinction widened between cause the judge and lawyers bring to judges and lawyers who knew the the trial legal expertise that the ju- law and ordinary citizens who did rors do not have. not, until it made little sense for ju- While these two views are well rors to decide the law. accepted, the students in our first I offer a more radical theory in law class in 1888 would be shocked which I see a connection between to learn what our first-year students the growing diversity of the jury and now take for granted. Though our the declining power of the jury. My modern impulse is to assume that theory is that the white, male legal a jury should reflect the diversity establishment began to curtail the of our community, at one time that power of the jury as African-Amer- diversity was limited to white men ican men and women had the right of property. Our broader under- to serve on juries. Although Afri- standing of diversity has been the can-American men and women lost result of a hard-fought struggle to that right by the late 1800s, they re- extend the rights of jury service to gained it, albeit after much struggle, African-American men and later many decades later. For both groups, to women. This expansion of jury however, even when official barriers rights, however, has not been contin- were eliminated, other practices kept uous; rather, it has proceeded in fits them from actually being seated on and starts. In fact, African-Ameri- juries. Some of these practices, such can men in some states in the South as the peremptory challenge, are still were given the right to serve as jurors used today in a discriminatory man- during Reconstruction only to have ner, in spite of Supreme Court cases that right stripped away by the end to the contrary, in an effort to keep of the 1800s before being restored African-American men and women decades later. So, too, with women from being seated on juries. in the Western territories; they had the right to serve as jurors in the late The Exclusion of African-American 1800s, but it was short-lived. Men from the Jury It will also surprise the modern reader to discover that the role of the lbert Alschuler and Andrew jury was initially to decide both the ADeiss, in an article entitled A law and the facts. The diminution of Brief History of the Criminal Jury in 68 Then & Now: Stories of Law and Progress the United States, identified 1860 as total exclusion in the past. the year in which African-American Newspapers, in their reporting of men first served on a jury. In that jury trials during this period, noted year, two African-American men sat when an African-American man on a jury in Worcester, Massachu- (and they were only men) served as setts. In 1864, Congress passed leg- a juror. On January 15, 1884, in the islation that allowed African-Amer- Chicago Daily Tribune, one story ican men to testify in federal courts, questioned whether South Carolina and this was followed by legislation jurors in a particular case had vot- that allowed them to testify in state ed to convict based on their political courts. Jury service was soon to fol- parties; it included the following ob- low. servation: “Three of the jurors, one During Reconstruction (1863– a negro and two white men, refused 1877), African-American men served to find a verdict of guilty.” On Feb- on juries in some states. For example, ruary 16, 1885, in the Chicago Daily in South Carolina in 1869, the leg- Tribune, a story described a murder islature mandated not only the in- trial in New Orleans and mentioned tegration of grand and petit juries, the sole African-American juror on but also that the racial composition this jury: “The only juror who stood of the jury should approximate that out from the very beginning in fa- of the community. Similarly, in New vor of conviction was one Edwards, Orleans between 1872 and 1878, a negro, and the only negro on the one-third of the citizens summoned jury, and he maintained his manly for jury duty were African-Ameri- and honest position to the end, not- cans, and this percentage matched withstanding that [the defendant’s] their representation in Orleans friends went to his house while he Parish. Between 1870 and 1884 in was serving and threatened his fam- Washington County, Texas, where ily with violence.” African-Americans were approxi- The newspaper accounts also mately 50 percent of the population, noted when the African-American they constituted about 30 percent of juror was the first African-Amer- those who served on juries. During ican to serve in that locale. A brief the 1870s, in Warren County, Mis- story on May 6, 1891, in the New sissippi, African-Americans were York Times announced that a man about 35 percent of the grand jurors, named Nelson Stark, described as and even though that percentage did “colored,” had been selected as the not approximate their percentage in eleventh juror in the Garrison mur- the community (where they were 70 der trial. The story noted that “[it] is percent of the community), it was a the first time in the history of that significant improvement over their county [in West Virginia] that a col- Nancy S. Marder 69

“Negroes as Jurors,” New York Times headline, Nov. 3, 1885. ored man has sat on an important the first time in Madison, Wiscon- case in the State court.” Similarly, sin, an all-African-American jury on September 7, 1880, the Chicago (six jurors) heard a civil case involv- Daily Tribune noted that “[f]or the ing an assault and battery; the arti- first time in the history of Kentucky cle noted that this jury marked “an the panel of jurymen for the duty inauguration of a new judicial era.” in a criminal court included in the Newspaper accounts of jury tri- list of the Louisville Circuit Court als also reported on perceived dif- to-day three colored men.” Two of ferences between white jurors and those men were selected to serve on African-American jurors. Accord- a grand jury and the third man was ing to one story in the Chicago Daily selected for a petit jury. The article Tribune on July 10, 1880, “[t]he first noted that there were a number of negro juror in Atlanta, the other day, African-Americans at court that day promptly joined in convicting a ne- and “they evidently took great satis- gro who was put on trial.” As a result faction in seeing representatives of of African-Americans’ seeming pro- their race assume privileges hereto- clivity to convict, “[t]he next prison- fore denied them.” er, also a negro, objected to having The inclusion of African-Ameri- one of his own race on the jury.” can men on the jury was not limited Another story, published in the New to Southern states. A notice in the York Times on November 3, 1885, New York Times on November 19, also observed that African-Amer- 1890, announced that “[a]mong the ican jurors had been “decidedly jurors in a case in the Circuit Court in favor of the Commonwealth as this morning was Abe Peterson, a against colored offenders.” The arti- Grafton blacksmith, who is the first cle suggested that African-American colored man to sit on a jury in Rens- jurors wanted to show that they were salaer County[, New York].” On July committed to law and order—so 9, 1893, a lengthy story in the Chi- much so that older lawyers who had cago Daily Tribune reported that for African-American clients would not 70 Then & Now: Stories of Law and Progress select African-American jurors be- sum, according to another commen- cause “they claim[ed] that colored tator, Douglas Colbert, “[a]lthough jurors are more severe in meting it was common for blacks to have out punishment to offenders of their served as jurors during Reconstruc- race.” tion, they virtually disappeared from In spite of constitutional protec- the southern jury box by 1900, even tions provided by the Fourteenth in counties where they constituted Amendment (1868) and the Fifteenth an overwhelming majority of the lo- Amendment (1870), statutory protec- cal population.” tions provided by the Ku Klux Klan Even though statutes could no Act of 1871, the Federal Civil Rights longer prohibit African-American Act of 1875, and the Federal Jury men from serving on the jury after Selection Act Strauder, other of 1879, and a practices kept U.S. Supreme them from the Court case, jury box. James Strauder v. Forman, in Ju- West Virginia, ries and Race 100 U.S. 303 in the Nine- (1880), which teenth Century, held that a state described the statute dis- violence di- qualifying African-American men rected toward African-Americans from jury service was unconstitu- and white Republicans that kept tional, African-American men lost African-American men in the South their place on juries in the South from serving as jurors or witnesses, in the 1890s. Booker T. Wash- or seeking or being afforded the pro- ington observed at the end of the tection of the legal system. All-white nineteenth century: “In the whole Southern juries failed to convict the of Georgia & Alabama, and other white perpetrators of these crimes. Southern states not a negro juror is Non-violent and more subtle allowed to sit in the jury box in state practices also kept African-Amer- courts.” According to a 1910 study, icans from actually being seated on African-Americans rarely served on a jury, even if they had been sum- juries in Florida, Louisiana, Missis- moned to serve. These practices sippi, Missouri, South Carolina, and ranged from color-coding by race Virginia, and they never served on the names placed in the wheel from juries in Alabama and Georgia. In which jurors were selected to the

“Jury of Whites and Blacks,” illustration by James E. discretion exercised by white jury Taylor, 1867, Library of Congress. commissioners in selecting only Nancy S. Marder 71 white men whom they knew to serve though it is undertaken in more sub- as jurors. Mississippi’s 1892 law, tle ways than it once was. which allowed three state officials to select jurors based on their “good in- The Exclusion of Women from the Jury telligence, sound judgment, and fair character,” was another way to keep omen’s experience in serv- African-Americans off the jury; oth- Wing as jurors tracked Afri- er Southern states followed suit. can-American men’s experience in The practice of discriminatory some ways, but lagged behind by peremptory challenges, which con- many years. Before 1888, women in tinues to this day, was another way at least two Western territories were to keep African-Americans from permitted to serve as jurors, and in being selected for petit juries. Each 1898 women in Utah were permitted party could exercise a certain num- to serve as jurors. Wyoming Territo- ber of peremptories and use them ry gave women the right to vote and to remove prospective jurors with- to sit on juries in 1869, with the first out giving any reason at all. Parties woman sitting on a jury in Laramie, used their peremptory challenges to Wyoming in 1871. However, there is remove African-Americans from the some dispute as to when Wyoming jury. Prosecutors, in particular, exer- women lost their right to sit on ju- cised race-based peremptories to re- ries. Albert Alschuler and Andrew move African-Americans from the Deiss point to 1872 as the year that jury in criminal cases in which the “Wyoming’s experiment in equality defendant was African-American. in the courtroom” came to an end, Even after a number of cases, from and a New York Times article on No- the mid-1960s to the mid-1990s, in vember 19, 1883, claimed that “no which the Supreme Court developed woman [in Wyoming] is ever seen an elaborate framework to attempt nowadays in the jury box.” Howev- to counter the exercise of race-based er, in an article in the Chicago Daily peremptory challenges, the practice Tribune on October 26, 1891, the continues today. Lawyers have sim- first Governor of the State of Wyo- ply learned ways to avoid discovery. ming was interviewed and said that In some courts in the South, defense there had been “several women ju- lawyers in capital cases will not even rors in the courts of Cheyenne, the challenge the prosecutor’s use of a Capital of Wyoming.” TheWyoming race-based peremptory because they Almanac of Politics included an arti- know the judge will never find a pe- cle from the Cheyenne Daily Leader, remptory to be discriminatory. The dated September 17, 1891, describ- practice of exercising discriminatory ing a trial in which the defendant peremptory challenges persists, even was female as were two of the jurors. 72 Then & Now: Stories of Law and Progress In 1884, women in Washington Ter- ticle also suggested that whenever ritory had the right to vote and to the defendant is a woman, “there serve on juries. However, in 1887, are few men not predisposed to re- after a change in personnel on the gard the opposite sex with tender Supreme Court of Washington Terri- consideration.” In 1893, the Senate tory, women lost their right to sit on Judiciary Committee held a hearing juries. In 1898, Utah allowed women to consider a bill that would allow to serve as jurors, and has tradition- women to serve as jurors if they “are ally been credited as the first state to wives of men who are duly qualified do so, though women rarely served so to act,” according to an article in as jurors until the 1930s. the New York Times on February 1, Although there were few wom- 1893. The article reported that Dr. en serving as jurors in the 1880s, Mary Walker spoke in support of the there were occasional ruminations bill, but the bill did not go forward. about what women jurors would be Women thought the passage like and what difference they would of the Nineteenth Amendment in make on juries. In a brief note in 1920, which gave them the right to the Chicago Daily Tribune on April vote, would also give them the right 21, 1888, entitled Call for Feminine to serve on juries, but this proved Jurors, the writer suggested that it is not to be the case in most states. Ac- difficult to convict a female defen- cording to Professor Gretchen Ritter, dant on the West Coast, and perhaps around the time of the Nineteenth if women were permitted to serve as Amendment, 14 states granted wom- jurors this situation would change. en the right to serve on the jury. In The writer offered the following rec- seven of these states, new laws were ommendation: “It would be a good passed that gave women the right to thing if the rights of women could serve. In the other seven states, ju- be so extended that in cases where ry-qualification statutes described a woman is accused of crime she jurors as “electors,” so once women might be tried by a jury of her own became electors under the Nine- sex.” On June 28, 1893, there was a teenth Amendment, they automat- brief article in the Chicago Daily ically became eligible to serve as Tribune entitled Women as Jurors, jurors. However, other states, like which raised the question wheth- Illinois, rejected this idea. The Illi- er Lizzie Borden should have been nois Supreme Court reasoned that tried by a jury that included women at the time when the Illinois General because “a woman on trial for her Assembly used the term “electors” life should have the right to demand only men could be electors. If woman equal representation of women en were to be included as “electors,” on the jury.” However, the same ar- then it was up to the Illinois General Nancy S. Marder 73 Assembly to say so, which it did, as jurors. Although women were though not until 1939. summoned to serve, they could be States decided whether to allow struck from the petit jury by lawyers women to serve on juries in their exercising gender-based peremptory own courts, and the federal courts challenges. Whereas race-based pe- followed the practice of the state in remptory challenges were addressed which the federal court was located. by the Supreme Court in a series of It was not until the Civil Rights Act cases spanning from the mid-1960s of 1957 that federal courts allowed to the mid-1990s, this line of cases women to serve as jurors in feder- did not become applicable to gen- al courts regardless of the practice der until J.E.B. v. Alabama ex rel. of that state’s courts. State courts, T.B., 511 U.S. 127 (1994). Although even when they ostensibly permitted there are many reasons that lawyers women to serve as jurors, followed defend the peremptory challenge— practices that kept many women from giving defendants control over from actually serving. In some states, jury selection to ridding the jury women had automatic exemptions of an outlier who could not be dis- from jury duty. In other states, such missed for cause—the peremptory as Florida and Louisiana, women challenge also should be seen as a could serve as jurors, but only if they practice that has been, and contin- went down to the courthouse and ues to be, used to keep women and affirmatively registered for service, African-Americans from serving on which was an extra step that men juries. did not have to take. States that ad- hered to this practice claimed that it A Decline in Jury Power respected women’s role in the home and that most women would be un- ack in 1888, when Afri- able to serve because of their duties Bcan-American men had for all at home. The effect of affirmative intents and purposes lost their right registration was that very few wom- to serve on juries and the few women registered for jury service. As late en in Western territories still had as 1961, this practice was upheld in their short-lived right to serve on Hoyt v. Florida, 368 U.S. 57 (1961), juries, the jury had begun to experi- and was not found to be unconstitu- ence a decline in power. Whereas the tional until Taylor v. Louisiana, 419 jury—from colonial times until the U.S. 522, 533 (1975). 1850s—had always had the power to Even after the demise of affir- decide the law and the facts, the jury mative registration, the exercise of started to lose its power to decide peremptory challenges was another the law and was reduced to deciding way to keep women from serving only the facts. This loss came about 74 Then & Now: Stories of Law and Progress through state court interpretations though African-American men and of state statutes and constitutions. women had not yet been able to se- This loss could be seen in a number cure their right to serve, the writing of states, including Massachusetts was on the wall. in 1855 and Louisiana in 1871, and Thus, the late 1880s were a time soon spread to other states, includ- of transformation for the jury. Juries ing Georgia in 1879 and Vermont in in many states had lost their power 1892. Today, only two states, Indiana to decide the law, and were officially and Maryland, still instruct jurors limited to finding the facts. It is no that they have the right to determine coincidence that this occurred at a the law as well as the facts. Although time when African-American men these two states’ constitutions pro- and women had experienced the vide for this right, the judiciary in right to serve as jurors, albeit brief- both states has narrowed this right ly, and sought to recover that right, through case law. even though it would take them My own theory is that as Afri- many years to do so. ◆ can-American men and women sought to serve on juries, there was Sources and Further Reading ■ Albert W. Alschuler & Andrew G. Deiss, A Brief a move on the part of judges to limit History of the Criminal Jury in the United States, 61 the power of juries. Some commen- U. Chi. L. Rev. 867 (1994). ■ Douglas L. Colbert, Challenging the Challenge: tators suggest that this move came Thirteenth Amendment as a Prohibition Against the about because of the growing pro- Racial Use of Peremptory Challenges, 76 Cornell L. Rev. 1 (1990). fessionalization of judges. As judg- ■ James Forman, Jr., Juries and Race in the Nine- es received legal training and saw teenth Century, 113 Yale L.J. 895 (2004). ■ Holly J. McCammon, The U.S. Women’s Jury themselves as professionals, they Movements and Strategic Adaptation (2012). began to see the functions of judges ■ Gretchen Ritter, Jury Service and Women’s Cit- izenship before and after the Nineteenth Amend- and juries as distinct, and attempt- ment, 20 Law & Hist. Rev. 479 (2002). ed to limit juries to the fact-finding function only. Another possibility is that as the law grew more complex, it Nancy S. Marder graduated summa cum laude from Yale College and re- seemed appropriate for professionals ceived her Masters degree in interna- with training and knowledge to de- tional relations from Cambridge Univer- cide it, rather than citizens who had sity and her law degree from Yale Law only common sense and experience School. After clerking at every level of the to guide them. My own theory is that federal judiciary, including two years as the move to limit the function of the a law clerk to Justice John Paul Stevens at the U.S. Supreme Court, she began jury to fact-finding came about at a teaching. Professor Marder’s areas of re- time when outsiders—women and search include juries, judges, and courts. African-Americans—were trying to She thanks Sam Castree for his excellent claim a right to serve as jurors. Al- research assistance. •

75 76 Then & Now: Stories of Law and Progress

Gideon v. Wainright Supreme Court decision, 372 U.S. 335 (1963). CRIMINAL PROCEDURE AND THE SUPREME COURT: THEN AND NOW David S. Rudstein

fter examining the Unit- of criminal law or procedure cases ed States Reports contain- decided by the Supreme Court? No ing the cases decided by the one would deny that crime in the ASupreme Court during its 1887–88 United States has increased since term, one might conclude that the 1888. But the true explanation for United States in the late 1880s was the increased number of criminal a law-abiding country with little law and procedure cases decided by crime. Of the approximately 270 cas- the Supreme Court is the “constitu- es decided by the Court during that tionalization” of criminal procedure. term, only seven (2.6 percent) raised When originally adopted in 1791, issues of criminal law or procedure. the Bill of Rights (the first eight In contrast, in its most recently com- amendments to the U.S. Constitu- pleted term, 2011–12, the Supreme tion) placed limitations only upon Court decided 76 cases, 22 (29 per- the Federal Government, not upon cent) of which involved issues of the individual States. Consequently, criminal law or procedure. none of the rights provided in those What accounts for this dramatic amendments—such as the protec- rise in the number (and percentage) tion against unreasonable searches David S. Rudstein 77 and seizures (Fourth Amendment), Process Clause”)—the Bill of Rights the guarantee against double jeop- still provided no protection to state ardy (Fifth Amendment), the privi- criminal defendants. lege against self-incrimination (Fifth Shortly after the turn of the twen- Amendment), the right to counsel tieth century, the Supreme Court (Sixth Amendment), the right to a recognized that the Due Process jury trial (Sixth Amendment), and Clause of the Fourteenth Amend- the right to confront hostile witness- ment protected some individual es (Sixth Amendment)—applied in rights from state infringement, in- criminal prosecutions brought in cluding, perhaps, some safeguarded state courts. Hence, an individual by the Bill of Rights against National convicted of a crime in a state court action. Nevertheless, the Court ex- could not challenge his or her con- pressly stated that if the Due Process viction in the U.S. Supreme Court on Clause protected such latter rights, it the ground that he or she had been was not because they were enumer- denied a right guaranteed in the Bill ated in the first eight amendments. of Rights. Many states did of course It explained that the Due Process have their own constitutional pro- Clause protected only those rights visions guaranteeing various rights that are “the very essence of a scheme to those accused of crime in their of ordered liberty” and essential to “a own courts, but each state could in- fair and enlightened system of jus- terpret its own constitutional provi- tice.” In determining whether a par- sions, and many of these provisions ticular safeguard met this standard, turned out to be less protective of the Court asked whether “a civi- individual rights than their federal lized system could be imagined that counterparts. Moreover, since these would not accord the particular pro- were rights guaranteed by state law, tection.” Applying this test, the Su- rather than federal law, their alleged preme Court held that several of the violation did not raise a federal issue protections contained in the Bill of that could be adjudicated by the U.S. Rights, including the privilege against Supreme Court. self-incrimination and the right to a Even in 1888, after the adoption grand jury indictment, did not apply of the Fourteenth Amendment— to the States. Even when the Court which, among other things, prohibits held that a particular right enumerated a State from abridging the “privileg- in the Bill of Rights fell within the es and immunities” of United States concept of due process, it frequently citizens (“Privileges and Immunities concluded that the protection afford- Clause”) and from “depriving any ed against state infringement was less person of life, liberty, or property, than that afforded against infringe- without due process of law” (“Due ment by the Federal Government—a 78 Then & Now: Stories of Law and Progress prosecution’s case. The Connecticut Supreme Court agreed; it reversed the conviction (and life sentence) and, despite Palko’s implicit acquittal for that offense, ordered a new trial for first-degree murder. At the second trial, a jury convicted Palko of first-degree murder, and he was sentenced to death—a conviction and sentence that the Supreme Court ultimately upheld against a claim that Palko’s second trial had placed him twice in jeopardy for first-degree murder.

hroughout the 1940s and 1950s, “watered-down” version of the right. Tthe Supreme Court consistently To illustrate, although the Fifth rejected the view, persuasively ar- Amendment guarantee against gued by Justice Hugo L. Black, that double jeopardy precluded the the Fourteenth Amendment had “in- Government in a federal criminal corporated” the entire Bill of Rights prosecution from appealing a jury and made its provisions applicable to verdict—whether a conviction or the States to the same extent as they an acquittal—that protection did applied to the Federal Government. not apply in state court proceedings. Even as late as 1961, despite the Consequently, in the mid-1930s, Sixth Amendment’s guarantee that after a Connecticut jury consider- an accused in a criminal prosecu- ing a charge of first-degree murder tion “shall enjoy the right . . . to have against Frank Palko convicted him the Assistance of Counsel for his of second-degree murder (thereby defense,” an indigent being tried in implicitly acquitting him of the orig- a state court for a non-capital felony inal charge of first-degree murder), had no federal constitutional right to the State, acting pursuant to a state have counsel appointed to represent statute, sought review of the con- him or her. Thus, when Clarence viction. The State claimed the trial Earl Gideon, an indigent drifter be- judge had erred in instructing the ing tried in a Florida state court for jury on first-degree murder and in breaking and entering a poolroom, excluding certain evidence from the requested the trial court to appoint

Photo of Clarence Earl Gideon, 1961(?), State Ar- counsel to represent him, the judge chives of Florida, Florida Memory, RC12789. could respond: David S. Rudstein 79 Mr. Gideon, I am sorry, but I can- are not imaginary and theoretical not appoint Counsel to represent schemes but actual systems bearing you in this case. Under the laws of virtually every characteristic of the the State of Florida, the only time common-law system that has been the Court can appoint Counsel to developing virtually contemporane- represent a Defendant is when that ously in England and in this country. person is charged with a capital of- The question thus is whether given fense. I am sorry, but I will have this kind of system a particular pro- to deny your request to appoint cedure is fundamental—whether, Counsel to defend you in this case. that is, a procedure is necessary to an Anglo-American regime of or- During the 1960s, however, un- dered liberty. [Emphasis added.] der the leadership of Chief Justice Earl Warren, the Supreme Court Today, virtually all of the provi- adopted the position that the Due sions of the Bill of Rights safeguard- Process Clause of the Fourteenth ing the rights of a criminal defen- Amendment “selectively incorporat- dant apply to the States (the lone ed” various provisions of the Bill of exception being the right to an in- Rights and made them applicable to dictment). As a result, the Supreme the States. Using this approach, the Court each term receives hundreds Court held that the Fifth Amend- of petitions requesting it to review ment privilege against self-incrimi- a state-court conviction alleged to nation, the Fifth Amendment guar- have been obtained in violation of antee against double jeopardy, the the defendant’s federal constitutional Sixth Amendment right to a jury rights, and each year the Court de- trial, and, in overturning Clarence cides 20 or so cases involving such Earl Gideon’s conviction, the Sixth issues, a large percentage of the Amendment right to counsel were number of cases it decides each term among the rights safeguarded from with written opinions. ◆ infringement by the states. In 1968, David S. Rudstein graduated with hon- the Court explained that it had re- ors from the University of Illinois at Chi- formulated its test for determining cago. He received his J.D. cum laude from whether a particular provision of Northwestern University and his LL.M. the Bill of Rights was incorporated from the University of Illinois. After by the Fourteenth Amendment. It teaching at the University of Illinois for stated: a year, he served as a law clerk to Justice Walter V. Schaefer of the Illinois Supreme Court. He joined the faculty of IIT Chi- The recent cases . . . have pro- cago-Kent in 1973, serving as Associate ceeded upon the valid assump- Dean from 1983 to 1987. He has focused tion that state criminal processes his scholarship on criminal procedure. 80 Then & Now: Stories of Law and Progress

“Our overworked Supreme Court,” Puck cartoon by Joseph Keppler, 1885, Library of Congress. A “PROGRESSIVE CONTRACTION OF JURISDICTION”: THE MAKING OF THE MODERN SUPREME COURT

Carolyn Shapiro

he Supreme Court in 1888 system. The Act divided the coun- was in crisis. Its structure try initially into thirteen districts, and responsibilities, created which were in turn combined into Ta century earlier by the Judiciary Act three circuits. Unlike today’s circuit of 1789, were no longer adequate or courts, however, the circuit courts appropriate. The Court was over- created in 1789 had original jurisdic- whelmed by its docket, and the jus- tion over certain types of cases and tices’ responsibilities, which included provided appellate review of only circuit riding, were impossible to a few cases heard originally in the meet. Shaped as it was by a law al- district courts. In addition, the Judi- most as old as the country itself, the ciary Act provided for district court Supreme Court in 1888—and the judges and Supreme Court justices, federal judicial system as a whole— but no circuit court judges. Instead, would be barely recognizable to twice a year, two Supreme Court jus- many today. tices would visit each district and, The Judiciary Act of 1789 estab- along with one district court judge, lished not only the Supreme Court, would sit as the circuit court. There but also the entire federal court were six Supreme Court justices, so Carolyn Shapiro 81 that two could be assigned to each Faced with overwhelming case- circuit. Even after 1793, when sub- loads, by 1888 the Supreme Court sequent laws provided that only had already attempted to adjust its one Supreme Court justice at a time standard of review in order to dis- would sit on a circuit courts, mean- suade lawyers and litigants from ing that each justice had to make appealing fact-intensive cases with the trip only once a year rather than few implications beyond the partic- twice, an enormous portion of Su- ular parties. In Newell v. Norton and preme Court justices’ time, was Ship, an 1865 admiralty case involv- spent riding circuit—at a time when ing a steamboat collision, for exam- travel was slow and difficult. And as ple, the Court summarily affirmed the country grew, more circuits were the verdict for the plaintiff, holding created. that there was “ample testimony to Not only did Supreme Court jus- support the decision.” The Court ex- tices ride circuit, but the Supreme plained that it would not engage in Court itself had no discretion over a searching review of the lengthy re- its docket. Cases were appealed to cord, which included more than 100 the Supreme Court as of right, unlike depositions: today. This lack of control turned out to be extremely problematic. During Parties ought not to expect this court the first century of its existence, not to revise their decrees merely on a only did the United States become doubt raised in our minds as to the geographically larger and more pop- correctness of their judgment, on ulous, but industry grew, the coun- the credibility of witnesses, or the try’s economy became increasingly weight of conflicting testimony. sophisticated, and new laws and sources of litigation abounded, espe- The Court’s reluctance to engage cially after the Civil War. As a result, in error correction, even at a time when the Supreme Court’s docket grew it had no formal control of its docket, dramatically. At the beginning of the continues to this day. Today, Supreme 1888 Term, there were 1,563 cases on Court Rule 10, Considerations Gov- the docket. The Court simply could erning Review on Writ of Certioari, not keep up. As Felix Frankfurt- explains that a “petition for a writ of er and James M. Landis described certiorari is rarely granted when the the situation: “The Supreme Court asserted error consists of erroneous docket became a record of arrears.” factual findings or the misapplica- Less poetically, it took three years for tion of a properly stated rule of law.” a case to be heard. The situation was untenable. 82 Then & Now: Stories of Law and Progress espite the Court’s effort to define after many years of considering and Da very narrow scope of review, it rejecting proposals for major reform, was unable to halt the flood of cases and the federal judicial system we coming to it. Facing both its own know today began to emerge. Most swelling docket and the geographic significantly, Congress established expansion of the country, the jus- intermediate appellate courts for the tices found circuit riding to be in- first time. If litigants were required creasingly difficult and they often to appeal first to those intermediate simply did not do it. As Frankfurter courts, the hope was, many fewer of and Landis explain, “[B]y 1890 the them would subsequently take their statutory duty of the Justices to at- cases to the Supreme Court. The law tend circuit was practically a dead indeed appeared to lessen the tide of letter.” cases, at least at first. During 1890, And it was not the Supreme before passage, 623 new cases were Court alone that was unable to func- docketed at the Supreme Court. In tion properly. Despite some earlier 1892, the number dropped by more attempts to expand and reform the than half, to 275. lower courts, there were still not The 1891 law, known as the Evarts nearly enough judges. Circuit courts, Act, also contained the seeds of to- which were supposed to sit with two day’s Court’s largely discretionary judges, often had to function with jurisdiction. For the first time, Con- only one. Even more problematic, gress created a category of cases that that single judge was often a district the Supreme Court would review court judge who was hearing appeals only upon certification, or certiorari, of his own decisions. In 1889, a pa- although most cases continued to per presented at the Annual Meeting flow to the Court as a matter of right. of the American Bar Association put The Supreme Court embraced it this way: the opportunity to limit the number of cases coming before it. During Such an appeal is not from Philip the first two years after passage of drunk to Philip sober, but from the 1891 act, it granted certiorari Philip sober to Philip intoxicated in only two cases. While careful to with the vanity of a matured opin- maintain its power to grant certiora- ion and doubtless also a published ri in any case pending in the courts decision. of appeals, the Court was, quite deliberately, “chary of action in re- This arrangement could not possibly spect to certiorari,” as it explained inspire confidence in an impartial in Forsyth v. City of Hammond, de- and fair justice system. cided in 1897. In Forsyth, the Court Congress finally acted in 1891, announced narrow criteria for when Carolyn Shapiro 83

“The Supreme Court/Men Who Know the Law,” October Term, 1895. Designed by the American Lithographic Co., 1896, Collection of the Supreme Court of the United States. certiorari would be appropriate: of the Court’s mandatory appellate jurisdiction. The hope that the cre- [The certiorari] power will be ation of the intermediate appellate sparingly exercised, and only when courts would satisfy litigants’ need the circumstances of the case sat- for appellate review, thereby making isfy us that the importance of the an appeal to the Supreme Court less question involved, the necessity of attractive, proved largely illusory. avoiding conflict between two or (Lawyers and litigants often appar- more courts of appeal, or between ently used the right of an appeal to courts of appeal and the courts of a the Supreme Court simply as a de- state, or some matter affecting the laying tactic, a possibility that seems interests of this nation in its inter- entirely obvious to a modern legal nal or external relations, demands audience.) In the years following the such exercise. enactment of the Evarts Act, the Su- preme Court’s caseloads increased These criteria remain, largely un- again to unmanageable proportions, changed, the stated criteria for cer- as the nation, its economy, and its tiorari today as set forth in Supreme judicial business continued to grow. Court Rule 10. Moreover, even after 1891 and de- The Evarts Act, however, was spite the concern for the Supreme not successful in its goal of cutting Court’s caseload that inspired the the Court’s workload to a manage- Evarts Act, Congress continued to able size. It did not eliminate most create even more categories of man- 84 Then & Now: Stories of Law and Progress datory appeals to the Court. In 1903, ally significant matters. The House for example, it passed the Expediting Committee report on the Judges’ Bill Act, which created the three-judge explained: district court to hear certain antitrust cases. Appeals from this type The problem is whether the time of district court went directly to the and attention and energy of the Supreme Court as of right. And over court shall be devoted to matters the following 10 to 15 years, Con- of large public concern, or whether gress provided that more and more they shall be consumed by matters types of cases follow this procedure. of less concern, without especial (A handful of cases, such as consti- general interest, and only because tutional challenges to congressional the litigant wants to have the court districts, are subject to this proce- of last resort pass upon his right. dure even today.) Although it expanded the Court’s In a 1925 Yale Law Review article, mandatory jurisdiction in some ar- Chief Justice William Howard Taft eas, Congress did cut back on it in provided more detail about what others. In 1916, for example, Con- sorts of cases he believed the Court gress eliminated mandatory juris- should take on certiorari after pas- diction over Federal Employers’ Li- sage of the Judges’ Bill, reiterating ability Act cases, as well as certain the criteria the Court first articulat- cases arising out of state courts, cas- ed in the 1890s—and that today are es from the Philippines, and cases embodied in Rule 10: arising under certain other federal statutes. The most significant over- The function of the Supreme haul of the Supreme Court’s jurisdic- Court is conceived to be . . . the tion, however, was the 1925 Judges’ consideration of cases whose deci- Bill—so called because it was drafted sion involves principles, the appli- by members of the Supreme Court cation of which are of wide pub- itself. The Act dramatically expand- lic or governmental interest, and ed the Court’s certiorari jurisdiction, which should be authoritatively leaving only a few, relatively small declared by the final court. Such categories of cases for mandatory cases should include issues of the appeals. Federal constitutional validity of The goal of the Judges’ Bill, like statutes, Federal and State, genuine the Evarts Act, was to free the Court issues of constitutional rights of from having to decide cases that were individuals, the interpretation of not important to anyone beyond Federal statutes when it will affect the immediate parties involved and large classes of people, questions to allow it to focus on more nation- of Federal jurisdiction, and some- Carolyn Shapiro 85 times doubtful questions of gen- cert pool was introduced in the 1970s. eral law of such wide application For cases decided on the merits, that the Supreme Court may help however, the Court continued to remove the doubt. Where there feel greatly burdened by its work- is a conflict of opinion between load in the mid- to late twentieth intermediate appellate courts in century, even as the number of merits the different Circuits or between cases shrank. In the 1980s, the Court the Federal intermediate appellate heard argument and issued written courts and the Supreme Courts of opinions in approximately 150 cases the States, the public interest cer- a year. Many observers, and some of tainly requires that the Supreme the justices themselves, believed that Court hear the cases, if its decision 150 cases were simply too many for will remove the conflict. the Court to handle well. Moreover, these people argued, the Court was The Judges’ Bill did not com- unable to give truly important cases pletely eliminate caseload pressures, the time and attention they needed of course. Petitions for certiorari alone in part because of the need to man- topped 5,000 a year by the early 1980s. age the mandatory appeals, which In October Term 2011, the Court con- were often not of interest beyond the sidered more than 7,500 petitions, parties themselves. There was much although this number represents a discussion of some kind of national modest decrease from prior years. court of appeals or other panel to Despite these massive numbers, assist the Supreme Court with the however, the Court has not fallen more mundane cases. Then-Justice behind in dealing with these filings. William H. Rehnquist explained at Instead, it has adopted a variety his 1986 confirmation hearings to be of ways of dealing with them effi- Chief Justice: ciently—from eliminating the need to discuss a petition in the justices’ I think if Congress could be per- conference unless at least one justice suaded, not ultimately but very wants to consider it, to relying on presently, there ought to be a law clerks to read the petitions and new national court, frankly summarize them in brief memos. recognized as such, with judges This latter mechanism relies heavi- appointed by the President and ly on the “cert pool”—a cooperative confirmed by the Senate, who agreement among most of the jus- would act as something of a junior tices (currently, all but Justice Alito) chamber of the Supreme Court, in which the petitions are divided to hear primarily statutory cases among the chambers and each petition about which there are presently is assigned to a single law clerk. The conflicts in the circuit[s]. 86 Then & Now: Stories of Law and Progress

Photo of Supreme Court Room (in the Capitol), c. 1894, Wittemann Collection, Library of Congress.

s we all know, no such dramatic load is vanishingly small. He “com- Achange occurred. During the pare[s] the percentage just of fed- 1970s, Congress eliminated man- eral court cases in which the Court datory jurisdiction in a number granted certiorari in 2004—0.11% of types of cases and in 1988, once (64 divided by 56,396)—with the again at the justices’ urging, it elim- corresponding percentage in 1960— inated almost all of the remaining 1.6% (60 divided by 3753)” to find direct appeals to the Supreme Court. that “the Court reviewed, in relative The Court, freed from mandatory terms, almost 15 times as many fed- appeals and aggressively applying its eral court cases in 1960 as in 2004.” certiorari criteria, has been hearing Put another way, what Frankfurter argument in fewer and fewer cases and Landis said in 1928 remains just a year. In October Term 2011, for as true today: example, the number of cases decided after briefing and oral argument Perhaps the decisive factor in the reached the historic low of 65 cases. history of the Supreme Court Not only do these numbers place is its progressive contraction of the Supreme Court caseload at his- jurisdiction. . . . In contrast with toric lows, but, as Judge Richard A. the vast expansion of the bounds Posner has pointed out, when mea- of the inferior federal courts, the sured as a proportion of all cases in scope of review by the Supreme the federal judicial system, the case- Court has been steadily narrowed. Carolyn Shapiro 87 This “progressive contraction,” Sources and Further Reading both of mandatory jurisdiction and ■ Bennett Bosky and Eugene Gressman, The Su- preme Court Bids Farewell to Mandatory Appeals, of the Court’s exercise of its own dis- 121 F.R.D. 81 (1988). cretion to hear cases, has reached a ■ Felix Frankfurter and James M. Landis, The Busi- ness of the Supreme Court: A Study in the Federal point where the concerns expressed Judicial System (1928). today about the Supreme Court’s ■ Richard A. Posner, The Supreme Court 2004 Term, Foreword: A Political Court, 119 Harv. L. workload are unprecedented. Com- Rev. 32 (2005). mentators and observers today com- ■ Carolyn Shapiro, The Limits of the Olympian Court: Common Law Judging versus Error Correc- plain that the Court is not taking tion in the Supreme Court, 63 Wash. & Lee L. Rev. enough cases and that the justices 271 (2006). ■ Joshua Glick, Comment, On the Road: The Su- do not work hard enough. In stark preme Court and the History of Circuit-Riding, 24 contrast to Chief Justice Rehnquist’s Cardozo L. Rev. 1753 (2003). statements at his confirmation hearings, then-Judge John G. Roberts in- Carolyn Shapiro earned both her B.A. dicated at his hearings in 2005 that and J.D at the University of Chicago. he thought there was “room for the After law school, she went on to clerk Court to take more cases.” None- for then-Chief Judge Richard A. Posner of the Seventh Circuit Court of Appeals theless, since his confirmation, the and Justice Stephen G. Breyer of the Unit- Court has not in fact done so. As al- ed States Supreme Court. Following two ready noted, the Court decided only years as a Skadden Fellow and four years 65 cases after briefing and argument as a civil rights lawyer in private practice, in October Term 2011. Whether she joined the faculty of Chicago-Kent as and how Congress—or the Court it- a visitor in 2003 and as a tenure-track faculty member in 2004. Her research self—will ultimately respond to such focuses on federal courts, especially the complaints and observations, and Supreme Court, and she is the director of what the next 125 years will bring, Chicago-Kent’s Institute on the Supreme remains to be seen. ◆ Court of the United States. 88 Then & Now: Stories of Law and Progress

Photo of Law Library of the Library of Congress in the U.S. Capitol, c. 1895, Library of Congress.

125 YEARS OF LAW BOOKS, 1888–2013 Keith Ann Stiverson

To attain a competent knowledge of the common law . . . requires steady perseverance, in consequence of the number of books which beset and encumber the path of the student. —James Kent

ames Kent wrote those words in The early classes at Chicago-Kent 1826, decrying the fact that more College of Law were taught in judges’ than 600 volumes of English and chambers or in law offices, where JAmerican case reports and treatises the library usually belonged to the had been published, but not many instructor. Students were often free of them were helpful to the student to use the books, and sometimes seeking an understanding of the could borrow them for short periods common law. “Steady perseverance,” of time. The trouble was, everyone to Chancellor Kent, meant setting needed the same books. The prob- aside more books than were consulted, lem was underscored when Dean to take control of the “indigestible Langdell’s case method became the heap of . . . legal authorities.” dominant means of instruction. Many volumes of case reports had to Keith Ann Stiverson 89 be replaced year after year, because Publishing Company of New York, the pages where the assigned cases and the Illinois Book Exchange, appeared were simply thumbed to which provided student textbooks. death by students: the casebook was The most famous law book store of born of necessity as much as conve- all was “Callaghan’s Three Miles of nience. Law Books” at 68 West Washing- The nineteenth century law ton Street, which eventually became schools that merged to become Chi- “Miles and Miles of Law Books” in cago-Kent College of Law had very later advertisements when its stock small collections of books, but stu- was replaced after the Great Chicago dents had access to both the city’s Fire of 1871. Law books were often public library (founded in 1872) and distributed through the publishers’ the Newberry Library, a human- own book stores, but Callaghan sold ities research collection open to the books from many publishers. public that was established in 1887. It was in the 1880s that American The only Chicago law library of any law publishers began to create order size was the Chicago Law Institute out of the “indigestible heap” of law Library, which was incorporated by books that was growing very fast a small group of lawyers in 1857 to as the nation and commerce devel- serve the needs of the city’s grow- oped. By then, case reports had been ing legal community. The collection published in the United States for consisted of approximately 7,000 approximately 100 years, but not in a volumes and was housed in the systematic way until West’s National Cook County Courthouse, where Reporter System began in 1879 with judges, government employees, and the Northwestern Reporter. West law students were permitted to use was the company that established a the collection at no charge, while lo- real system for publishing cases, and cal practitioners paid an annual fee then followed that innovation with of $100. The Law Institute collection the American Digest System. Soon eventually served as the basis for the after the Northwestern Reporter be- Cook County Law Library, which is gan, West took over and improved now estimated to have more than the U.S. Digest, which was previously 300,000 volumes. published by Little, Brown. West’s Law book publishing in the nine- digests and Key Number System teenth century was initially based enabled lawyers to find what they in Albany, New York City, Philadel- needed in the rapidly-growing sets phia, and Boston, but Chicago also of West reporters. The company then had a share of the industry, includ- answered the needs of lawyers who ing E.B. Myers & Co., a book store/ could not afford (and did not want) office for Lawyers Co-operative the entire national system when it 90 Then & Now: Stories of Law and Progress began publishing state digests and narrative to explain the development reporters. of a particular area of law. It was sim- As West was inventing a sys- ply impossible for most lawyers to tem to grapple with the burgeon- keep up with the massive number of ing case law, Frank Shepard was court opinions being published, so inventing the case citator. Shepard’s the idea of highlighting and explain- Citations began in 1873 as a service ing only the leading cases had real in which adhesive labels were sent merit. The earliest of the annotated to subscribers who affixed them to cases, in the 1880s, were accompa- the pages of published case reports nied by short notes; later on, editors so that the lawyer reading the case wrote hundreds of pages to explain could determine whether the court’s the development and current state decision in the case was still “good of an area of law in multiple juris- law” or had been overturned on ap- dictions. peal. Eventually Shepard developed Another innovation that came a complicated system of abbrevia- from the law book publishers soon tions to indicate the importance and after the turn of the century was the validity of the case so that a reader specialized loose-leaf service. The knew if the case could be cited as au- first successful one was published by thority for the statement he wanted Commerce Clearing House in 1913 to make. The awkward method of after ratification of the Sixteenth updating (the gummed labels often Amendment created the income dried up and fell off the pages) didn’t tax. Soon there were other services work very well, so Shepard began covering such subjects as trade reg- publishing his updating system in ulation and banking, then additional bound volumes keyed to the various areas of law as more publishers en- reporters and updated by paperback tered the field. The most useful of the supplements. The lawyer who needed loose-leaf services brought together in to determine the history or current one publication all of the things that a status of a case he was reading could practitioner needed: court opinions, simply check by citation. Finally, in rulings, statutes and regulations, as the 1980s, the Shepard’s Citations well as secondary commentary. Many system became the extremely cur- of the services were updated weekly, rent online citator that lawyers use so the lawyer had less reason to worry today. that the information he had was out of One response to the proliferation date. In the 1980s, many lawyers who of cases was the birth of selective specialized in a particular area of law case reporters with so-called anno- welcomed the new CD-ROM format, tations, i.e., an explanation that put which made it easy for them to carry the case(s) in context and provided a around their entire law library. Keith Ann Stiverson 91 Judges were not the only busy No law library could afford to writers; legislatures, both state and collect all of the official statutes and federal, began to pass more laws to court opinions of Federal and state deal with the demands of an increas- governments, let alone the commer- ingly complex industrial society. Ses- cial versions of primary material. The sion laws were often published only huge wave of secondary legal publi- at the end of a session of the legisla- cations that appeared in response ture; these, along with the occasional to the New Deal and the eventual statutory digest and the various in- specialization of the legal profession dexes, were not sufficient to make made it impossible to build a truly the material available in a timely comprehensive collection. The 600 manner. It was increasingly difficult volumes of case reports that once to piece together the original statute annoyed Chancellor Kent contin- with all of the amendments of later ued to multiply until it eventually years. The Revised Statutes of 1873 became the behemoth that also in- was a temporary solution to the cluded thousands of law reviews and problem, but it was 1926 before the legal newspapers. Luckily, the tech- first publication of theUnited States nology we needed and the uniform Code. The Code finally gave lawyers system of legal citation made it pos- access to federal law in a topical ar- sible to control this enormous mass rangement that was updated. The of material, and to simplify the many official Code is republished every elaborate systems that had been cre- six years; the most recent edition ated to help the practitioner find the consists of more than 200,000 pages. law by subject. West began publishing an unofficial The 1970s and 1980s were de- version of the Code right away, in cades of real achievement in mak- 1927, called the United States Code ing the whole body of law and the Annotated. As everyone knows who many secondary sources more read- has done research in federal statutes, ily available in convenient form. West did a faster, better job than the The Lexis database was followed government of publishing the sup- eventually by Westlaw, and the two plementation necessary to keep the systems have dominated the market Code up to date. Many states also for online legal research ever since, began to compile their statutes into despite weak challenges from small- a topical arrangement with an exer publishers and from the open ac- tensive index. Some of these com- cess movement. The recent entry of pilations provided citations to cases Bloomberg Law/BNA into the online or short annotations of the court market is the first real challenge to decisions that had construed each the supremacy of Lexis and Westlaw. section of the statute. A collection of historical books 92 Then & Now: Stories of Law and Progress

Class poem from The Transcript, 1920, Chicago-Kent’s student yearbook, photo by Emily Barney.

named The Making of Modern Law collection as the 10,510th volume, a (MOML) was an important con- work that is still available on a shelf tribution to law collections several in the library, but also accessible as years ago that helped to level the field a full-text e-book that can be read for new academic law libraries that 24/7 by clicking a hyperlink. had few of the older books. MOML is a digital collection of more than ow that our huge collections of twenty thousand nineteenth and Nprint volumes are disappearing early twentieth century treatises and from shelves, what will happen next other legal documents that are acces- to the academic law book collections sible through Chicago-Kent Library’s that took more than a century to online catalog. As one flips through acquire? One can probably predict the pages of this electronic book col- more offsite storage, more e-books, lection, it is somewhat surprising to and more use of print-on-demand realize that quite often one is looking options. What was once known as at images of a print work that was “collection development” in the li- once prized by our nineteenth centu- brary has undergone radical change. ry faculty and students. An example Acquisition is often temporary, and is Thayer’sA Preliminary Treatise on research materials are not automat- Evidence at the Common Law, pub- ically added to the library’s perma- lished at the turn of the last century nent collection. and later added to our library’s print Keith Ann Stiverson 93 Many law libraries are returning for research, and client files are often to their roots to make the historical in an electronic knowledge manage- materials of their law schools avail- ment system rather than in a print able. For instance, Chicago-Kent file. But if she returns for a law school Library is starting a project to pre- class reunion in a few years, hoping serve the law school’s unique his- to re-live her triumph at a law stu- torical collections by placing them dent talent show, we hope we’ll have in a digital repository. The images a link to the video. ◆ will reside in the cloud, rather than moldering away, page by page, in a dark room. The institutional reposi- Sources and Further Reading ■ James R. Grossman, et al., eds., The Encyclopedia tory will be the permanent home for of Chicago (2004). (among other things) the early pub- ■ Historical Development of the American Lawyer’s Library, 61 Law Libr. J. 440–462 (1968). lications and videos of and about the ■ Chicago-Kent College of Law, The Transcript law school. We will be able to tell the (student yearbook), 1917–. descendant of a 1915 graduate where to find the online class photograph that includes his great-grandfather. The nephew of a woman who was Keith Ann Stiverson is the Director of the Library at Chicago-Kent. She received the class poet many years ago can her law degree from Georgetown Univer- now read her work online, because sity Law Center and her M.S. in Library we saved on old student yearbook Science from Catholic University. Keith before it disintegrated. Ann was engaged in private practice (mu- Today’s law student may finish nicipal bonds) for several years in Cincin- her legal education and then go into nati before leaving to take a position as Special Assistant to the Law Librarian at the practice of law without ever using the Library of Congress. She came to Chi- a print volume, given the twenty-first cago-Kent in 2001 from the University of century reality that online databases Texas at Austin, where she served as As- usually contain everything she needs sociate Director of the Law Library. 94 Then & Now: Stories of Law and Progress

Photo of Grand Pacific Hotel, LaSalle St. and Jackson Blvd., site of the Illinois Supreme Court chambers of Justice Joseph M. Bailey, where Chicago College of Law classes met, 1887–1889. CHICAGO-KENT: 125 YEARS AND COUNTING Ralph L. Brill

I. The First 100 Years over one thousand student-apprentices. Graduates included two Vice A. The Early Years Presidents of the United States, 101 members of the United States House t the end of the nineteenth of Representatives, 28 United States century, the major meth- senators, three justices of the United od by which one became States Supreme Court, 14 state gov- Aa lawyer was through self-study ernors and 13 state Supreme Court under the supervision of a prac- chief justices. In 1779, Thomas Jef- ticing lawyer—an apprenticeship. ferson established a “chair in law” at Few law schools or even university William and Mary. George Wythe law departments existed. In 1774, was appointed to the position, and Judge Tapping Reeve of Connecti- gave lectures on various law subjects cut established the first law school, as part of the university’s multifari- Litchfield. Over the next 58 years, ous curriculum. Harvard, Pennsyl- Reeve and his partner James Gould vania, Maryland and other schools lectured on all areas of the law to later added actual law departments; Ralph L. Brill 95 their graduates were awarded bach- Joseph Grannick—asked Mr. Burke elor degrees. Most schools offered for advice on how they could obtain a curriculum similar to Litchfield’s: mentoring after work as they stud- lectures on Domestic Relations, Ex- ied for possible admission to the bar. ecutors and Administrators, Sheriffs Mr. Burke recommended they talk and Gaolers, Contracts and Actions, with Justice Thomas A. Moran of the Torts, Evidence, Pleading and Prac- Illinois Appellate Court. Moran was tice, The Law Merchant, Equity, intrigued with the idea but at that Criminal Law, and Real Property. time believed he was too busy. He in Apprenticeship remained the major turn recommended they speak with means to becoming a lawyer. Justice Joseph Meade Bailey, then As interest in law training in- of the Appellate Court and soon to creased, lawyer/mentors tended to be elevated to the Illinois Supreme overwork their apprentices with Court. Justice Bailey agreed to meet work growing out of their practices, with the group from 7 p.m. to 9 p.m. leaving little time for the would-be three nights a week in what they infor- lawyers to study on their own. Also, mally called “The Evening Law Class.” the significant increase in immi- The group met in Justice Bailey’s grants furnished a large audience chambers at the Court, located in the eager to enter a profession in their Grand Pacific Hotel, at LaSalle and new country. Thus, a number of eve- Jackson. As word of the class spread, ning law programs began, enabling other apprentices throughout the those interested in keeping their jobs city requested to be allowed to sit in while preparing for careers in law. In on the class. In 1888, the class was Chicago, the first of these was Union formalized and Justice Bailey incor- College of Law, begun in 1859. It was porated it as Chicago College of Law, founded and maintained through a with himself as dean and president. loose association of Northwestern Bailey induced Justice Moran and University and Chicago University. Appellate Court Judge Shepard to join The Chicago University was not The him as teachers, enabling them to split University of Chicago, which was the evenings and have classes Monday founded years later in 1890. Chicago through Saturday. University went defunct about 1871, Classes were spread over two at which time Northwestern com- years, and labeled the Junior and pletely took over the Union College Senior Classes. The Junior classes of Law. were held on Monday, Wednesday In 1887, four young clerks at and Friday, from 7 p.m. to 10 p.m., the law firm of Burke, Hollett and and the Senior classes were held on Tinsman—Kickham Scanlon, Louis Tuesday, Thursday and Saturday. Tu- Henry, Rudolph Frankenstein, and ition was set at $5 per month, pay- 96 Then & Now: Stories of Law and Progress able three months in advance. The to practice in Illinois. Twenty of the judges’ lectures were supplement- first one hundred women admitted ed for the Junior Class by readings to practice in Illinois were graduates from law books, including Black- of the school. stone’s Commentaries, Kent’s Com- Things moved quite quickly in mentaries, Bishop on Contracts, the first few years. The rapid increase Walker’s American Law, and Morey’s in enrollment led Justice Bailey to Elements of Roman Law. The Senior move the classes to the Appellate Class was assigned readings from Court rooms at the Chicago Op- more advanced legal texts includ- era House Building, on Clark near ing, Bishpam’s Principles of Equity, Washington. In 1889, the Chicago Gould on Pleading, Taylor on Cor- College of Law merged with Lake porations, and Langdell on Equity Forest University, which was seeking Pleadings. Completion of the two- to become a full-fledged university year program enabled graduates to with affiliated medical, dental and be eligible for admission to the bar, seminary schools. In addition, be- upon proper motion by an existing cause so many lawyers had already member of the bar. been admitted to practice, based Students could be admitted with- only on their home-study, the Chi- out having attended college or fin- cago College of Law established a ishing high school. Students who post-graduate program to help them lacked a high school diploma could measure up to the demands of the be admitted by showing that they profession. The graduate program had a “good common school edu- consisted of one year of practice-ori- cation” and could pass a test on the ented courses, two nights per week branches of learning commonly for eight months, with tuition of $40 taught in high school. Many other per year. Further help was offered schools in the country did not admit through a summer school, with women or persons of color. In con- classes on drafting pleadings and trast, the Chicago College of Law cat- contracts, for a fee of $12. Comple- alogue emphasized that “no distinction of the full three-year program tion will be made in the admission of earned graduates a Bachelor of Laws students on account of sex or color.” degree and automatic admission to Thus, among the students in the early the bar. classes were several women and stu- The success of the College is dents of color. Ms. Emma Bauman shown by the fact that over the first was in the very first class and was six years of its existence, 766 students admitted to practice in 1890. Ms. graduated from the two-year under- Ida Platt, Class of 1894, was the first graduate program, and 290 lawyers African-American woman admitted from the graduate program. In 1892, Ralph L. Brill 97 the ever increasing size of the classes caused the College to move once again, this time to the Atheneaum Building, located on Van Buren near Michigan. Justice Bailey passed away in 1896. Judge Moran took over as dean and president. Judged by modern standards, the law school was liter- ally an undergraduate college, with very young students. It was thus natural that the typical college organizations formed, including fraternities and sororities, clubs of all kinds, a school newspaper, and a combina- tion catalog/yearbook/law review, The Athenaeum Journal. and Stratton Business School Build- Meanwhile, in 1891, Northwest- ing. Kent’s first catalog opined that it ern took full control of the Union would be the first law school in the College of Law, and renamed it country emphasizing the “practical Northwestern Law School. Marshall method,” requiring each student, af- Ewell, one of Union College’s lead- ter learning the basics of the law, to ing professors, was unhappy with “engage in the practical work such the shift in teaching philosophy and as usually engages the attention of a pedagogy that was put into effect at regular practitioner.” Such training Northwestern. He believed that by would enable graduates “at once to eliminating many practical courses fill important and responsible positions from its curriculum, Northwestern . . . which, under the old method, they had lost sight of the fact that the law could not . . . fill without from six school was supposed to be training months to a year’s further training in students for the practice of law. In an office.” The curriculum featured 1892, he and several other faculty an upper class School of Practice, in members resigned and formed a new which each student would have to school, Kent School of Law. Within a draft all of the typical documents for year the name changed to Kent Col- cases that would arise in every area lege of Law. Forty-two Northwestern of practice. students followed Ewell to Kent. The Kent College was very success- initial classes were held at the Briggs ful, enrolling well over 500 students during the first three years of its ex- Painting of Justice Joseph Meade Bailey, Dean, Chi- cago College of Law, 1888–1896. istence. Within a year, the law school 98 Then & Now: Stories of Law and Progress

Photo of 116 North Michigan Ave., site of Chicago-Kent College of Law, 1912–1924. moved to the sixth floor of the Ash- law school market, including colleges land Block Building at Clark and named YMCA, Webster, Western and Randolph. Two years later, it moved Chicago Business Law. The Chica- again, this time to the Association go-Kent curriculum was expanded to Building, next to the Chicago Bar three years, and a bachelor of laws Association’s quarters on LaSalle awarded to graduates, which made Street. them eligible for admission to the In 1902, Ewell’s advancing age bar. The law faculty adopted the Case apparently led him to negotiate a Method of teaching, pioneered by merger with Chicago College of Law Langdell of Harvard, but also retained of Lake Forest University. The law the senior School of Practice inherited school name was changed to Chica- from Ewell and Kent College. go-Kent College of Law. Ewell and In 1904, Judge Thomas Moran some Kent faculty made the move as passed away. He was succeeded by well. Two years later, Lake Forest de- Justice Edmund W. Burke, also of cided to leave the professional school the Appellate Court. The law school business, rescinded the merger, and now employed, part-time, about 20 Chicago-Kent became a freestand- lawyers and judges to teach the solid ing independent law school, which array of courses in its three-year cur- it remained for 65 years. In subse- riculum. They were paid $5 per class quent years, Chicago-Kent absorbed hour for their teaching. Courses were other law schools that had tried to divided by the number of weeks they establish themselves in the Chicago would meet. Thus, during their first Ralph L. Brill 99 year, students took Contracts for five against teams sponsored by other local hours a week for 14 weeks, Torts for colleges, churches, or clubs. One of the two and one-half hours per week for six fraternities, Phi Alpha Delta, was 18 weeks, Personal Property for two established at Chicago-Kent, and in and one-half hours for 11 weeks, etc. fact had its own fraternity house on The law school moved again in south Michigan Avenue. The first legal 1913. It occupied three floors in the sorority, Kappa Beta Pi, likewise began new 116 N. Michigan Avenue Build- at Chicago-Kent and soon had chap- ing, which also housed the Chicago ters throughout the country. A band, Municipal Courts. This arrange- the Kent Syncopators, was hired out ment made it easier to draw on the for weddings and bar mitzvahs. When judges and lawyers who served as World War I broke out, many students faculty, and reach out to the employ- enlisted or were drafted. Some, unfor- ers of many of the students. Among tunately, did not return from the war. the faculty was one distinguished alumnus of the school, Hon. Henry B. World Wars I and II Horner, Judge of the Probate Court. Horner continued to teach until n 1918, upon the death of Dean 1924, during which time he wrote IEdmund W. Burke, his son, Web- the leading treatise on Illinois Pro- ster Burke, became dean and pres- bate Law. In 1933, he was elected ident of the Board of Trustees. He Governor of Illinois, serving till his continued to run the school for over death in 1940. 30 years, at a salary of $400 per year. The make-up of the student body He waived all salary during and after was incredibly diverse. A survey of World War II. Tuition in 1918, which one class showed that the students had been $60 per year in 1888, had held jobs as disparate as accountants, slowly risen to $90 per year. The ear- court reporters, dentists, engineers, ly period of Webster Burke’s tenure law clerks, letter carriers, merchants, as dean saw the law school grow to secretaries, teachers, etc. They were one of the largest in the country. primarily young people on the rise. Thus, from 1909 to 1912, Chica- Thus, the school had a debating so- go-Kent had the sixth largest student ciety, which placed teams in compe- population; from 1913 to 1916, it titions against teams from other col- had climbed to second largest. leges. These debates were carried on Webster Burke was a frugal ad- radio, and the listeners sent in their ministrator and somehow raised ballots to choose the winners. The enough money so that by 1923 the school also had a swimming team, a law school was able to finally buy wrestling team, and a highly success- its own building, a small four-story ful basketball team, all competing structure at 10 N. Franklin Street. 100 Then & Now: Stories of Law and Progress That year coincided with the inau- accreditation. The rules required a guration of the Chicago-Kent Law full-time dean and he still was work- Review. ing and drawing a salary at his old Over the next 15 years, the law law firm. Donald Campbell was pro- school increased its requirements for moted from the full-time faculty to admission. The first change was to take on the job. AALS accreditation require applicants to have complet- was received in 1951, making Chica- ed at least 30 hours of college credit. go-Kent one of only three non-uni- Within a few years, the requirement versity affiliated schools to be -ac grew to 60 hours. The school also credited by the AALS. The year 1951 gradually moved towards adding a also saw over 500 alumni attend the day division. A major step was taken 65th annual homecoming luncheon in 1937 when the law school received in the Grand Ballroom of the Sherman ABA accreditation, enabling gradu- Hotel. At that event, a Chicago-Kent ates to be eligible to seek admission student team was honored for reach- to practice in any other state. In ad- ing the finals of the National Moot dition, part-time teachers were no Court Competition, a first for the longer the entire law school faculty. law school. By 1940, six full-time teachers made In 1956, Dean Campbell retired up the nucleus of the faculty: Don- and William F. Zacharias was cho- ald Campbell, James Hemmingway, sen to succeed him. Zacharias at first Charles Pickett, Roger Severns, Ernest declined the offer because of what he Tupes and William F. Zacharias. Tui- asserted was the deplorable physical tion now was charged by the credit condition of the law school. The 10 hour—$7 per hour, with 75 hours N. Franklin building had no library. required to graduate. Students had to use the library of the World War II had a serious im- Cook County Bar Association at the pact on the law school. Unlike many Civic Center. It had only three class- other law schools, it remained open, rooms and not enough offices for the though with very small classes. The full-time faculty. In fact, Zacharias’ student-body was roughly a third of first faculty “office” was located in its normal size. Warren Heindl, born the boiler room! with cerebral palsy and thus ineli- Zacharias agreed to accept the job gible for the draft, took one class in after President Douglas Schwantes which he was the only student. The of the Board of Trustees announced professor held every class and re- a fund-raising campaign, seeking to quired Warren to “recite” on every acquire for the law school the adjoin- assigned case. ing wine warehouse at 12 N. Frank- In 1949, Dean Burke resigned so lin, and to blend the two buildings that the school could apply for AALS into one. A $500,000 campaign was Ralph L. Brill 101

Photo of 10-12 North Franklin St., site of Chicago-Kent College of Law, 1924–1976. successfully launched, the building secretary all-in-one. He made all was acquired, and classes continued admissions decisions, some of them to be held at 10 N. Franklin while the controversial. He cut off the locks blending construction took place at from student lockers at the end of 12 N. Franklin. When it was com- the year. He physically removed plete, the law school now contained students from classes if they were space for a library reading room, a behind in paying tuition. He also reserve library stack area for 25,000 personally threw out the occasional books, a 200-seat auditorium, six Skid Row bum who wandered into classrooms, a student lounge, a small the building. At the time of registra- faculty library, seven faculty offices, tion for a new semester, he wrote out a separate faculty washroom, a large the class schedule for each student, entry area, offices for the dean, reg- including selecting their “electives” istrar, and two assistants, as well as for them. When grades were turned space for a switchboard operator. in, he computed each student’s grade Dean Zacharias prided himself point average by pencil, and then on “running a tight ship.” However, personally typed the warning letters he often ran it too tightly. He was to those who were to be put on pro- dean, policeman, security guard, bation and the dismissal letters to registrar, admissions officer, and those who would be dismissed. 102 Then & Now: Stories of Law and Progress Faculty who taught for most of wide search for Zacharias’ successor; the Zacharias years included the however in the end, the faculty and brilliant Fred Herzog, a judge in administration chose Fred Herzog Austria who fled the Nazi invasion to be its new leader. Simultaneous- to come to America, James K. Mar- ly with his taking office in Septem- shall, Theodore Bayer, John Drac, ber 1970, an unexpected rise in ap- Marty Hauselman, Warren Heindl, plications for admission occurred. Shelvin Singer, Jerry Bepko, Dean The number of women taking the Sodaro, and a very young Ralph LSAT rose dramatically. Within the Brill. Faculty salaries were very low, three years of his deanship, the total and teaching loads were very high. enrollment of the school rose from In 1968, both Dean Zacharias 450 to 750, with most of the increase and President Doug Schwantes an- being traceable to the high percent- nounced that they would be retiring age of women entering law school. within a year. While the school was The boom necessitated a dramatic maintaining steady enrollment and increase in full-time faculty, and income, it had a very small endow- pushed the limits of the existing ment to fall back on should leaner physical plant to a nearly unman- times appear. The Trustees contin- ageable level. ued to insist on quality education Dean Herzog made history by at an affordable tuition—$18 per the faculty he recruited and hired. credit hour with 75 hours required Among the many new faculty hired for graduation. Some felt that the during Dean Herzog’s short term reputation and the future of the were Mary Lee Leahy, the first law school were jeopardized by the woman professor at Chicago-Kent, fact that it was not connected with and Emerson Blue, the first Afri- a university. Thus an agreement was can-American professor. Dr. Walter reached to merge the school with Jaeger, a nationally famous profes- the Illinois Institute of Technology, sor at Georgetown and the author effective in 1969. A controversial of the revised edition of the famous provision in the agreement indicated treatise, Williston on Contracts, was that the law school would be moved induced to join the Chicago-Kent to the IIT campus in the future, away faculty. He also hired Lew Collens, from the downtown law firms and who later would become dean of not convenient for evening students. the law school and then president The agreement also specified that of the university. Two wonderful the Chicago-Kent name would not colleagues, Howard Chapman and be changed. Phil Hablutzel, were also hired at For the first time in its history, that time and are still active and pro- the law school performed a nation- ductive professors at the law school. Ralph L. Brill 103

Photo of Lewis Collens, c. 1975, Dean of IIT Chicago-Kent College of Law, 1974–1990. When Professor Leahy left for a gov- sors hired by the law school. War- ernment appointment, Dean Herzog ren Wolfson, a well-known Chicago hired another well-known female lawyer and judge, was hired to start lawyer, Jill McNulty, who later would the Trial Practice program. be elected as Justice of the Appellate Court. C. The Lew Collens Era In December 1973, Dean Herzog was recruited by the Illinois Attor- n 1974, the IIT administration ney General to become First Assis- Iselected Professor Lew Collens to tant Attorney General of Illinois. become the dean of the law school. Professor Ralph Brill, then the asso- Lew went on to serve as dean for 17 ciate dean, was elevated to interim years, at which time he was selected dean, and served for two years. to be the president of the university. Much was accomplished in those During Lew’s long reign as dean, the two years. The law school space was law school made tremendous prog- doubled by annexing space at 33 W. ress as an innovative and exciting Madison. Five new professors were law school. hired, including David Rudstein and One of the first steps taken by Richard Conviser. A new clinical Dean Collens and IIT’s new presi- program was started in which third dent, Tom Martin, was to resolve the year law students earned credit by physical plant issues that had mush- working on Cook County Legal As- roomed as the school had grown. sistance Foundation cases, under the The 10–12 N. Franklin building was supervision of three clinical profes- much too small for the many stu- 104 Then & Now: Stories of Law and Progress

Photo of 77 South Wacker Dr., site of IIT Chicago-Kent College of Law, 1976–1992. dents and faculty now at the school, a multi-use auditorium. The library and the 33 W. Madison annex was grew to house 450,000 volumes. The only a temporary solution. While school moved into the new space in the merger agreement with IIT had mid-1976. specified that the law school would Dean Collens was a very prag- relocate to a building on campus at matic dean, willing to take chanc- 31st and Federal, the law school fac- es with new ideas and back them ulty, Chicago-Kent Board of Over- fully. Thus, in 1977, he approved seers, and the alumni agreed that the creation and implementation this would be a significant mistake. of the first three-year Legal Writ- President Martin agreed, and instead ing program in the country, headed raised funds to acquire a six-sto- by Professor Brill. As it developed, ry building at 77 S. Wacker Drive. students were required to take 11 The more than 120,000 square feet credit hours of the total of 90 now was at least five times the total space required for graduation, in five sepa- of the old building and annex. The rate courses, spread over three years space was refurbished with modern of law school. The program received furniture and fixtures, several floors superlative reviews and the posi- of classrooms, two floors of open li- tive publicity was used successfully brary stacks and reading rooms, over as a recruiting tool by the admis- 50 faculty, administrative and stu- sions office. Full-time Legal Writing dent organization offices, a cafeteria, teachers taught the first-year classes one separate floor for the clinic, and and expert practitioners taught spe- Ralph L. Brill 105 cialized advanced courses. In later student computer laboratory, and years, a Visiting Assistant Professor to teach students how to create their component was added to help cover study materials, do legal research the first-year component. The VAP and experiment with the creation program, basically an apprentice- and drafting of legal documents us- ship for new teachers, still receives ing this then novel tool. Doctrinal wide acclaim today. Over 50 former faculty, who at first were against the VAPs have gone on to careers as law use of the new gadgets, were taught professors at law schools throughout word processing and research, and the country. soon became supportive advocates The successful Legal Writing pro- for the program. gram also led to another remarkable The Legal Clinic, begun as a sup- program. At the behest of students plier of legal services for the poor, Ron Petri and Tom Krebs, the facul- was turned into a full fee-generating ty approved the creation of the Moot law firm under the direction of Pro- Court Society. Students who had fessor Gary Laser. The Chicago-Kent excelled in the first-year second-se- Law Offices was and is still the only mester Legal Writing oral advocacy law school clinic of its kind in Amer- competition were invited into the ican law schools. Clinic lawyers and Society, and received credit for par- students worked on famous cases, ticipation in an advanced intra-mu- such as representing John Wayne ral competition. From this compe- Gacy. One clinician, assisted by stu- tition, students were chosen to staff dents, won acquittal on attempted Chicago-Kent teams in an increas- murder charges for Vietnam veter- ing number of inter-mural national an Jerald Wood based on a Vietnam moot court competitions. Almost stress syndrome defense. The Law immediately, student teams began Offices also initiated an externship winning local rounds of national program, placing students as law competitions and then advancing to clerks for credit with judges. the final rounds of competitions such In the 1980s, the Trial Advocacy as the very prestigious National Moot program began sending teams to a Court Competition and the ABA number of national competitions. National Advocacy Competition. In 1988, a Chicago-Kent team, con- Professor Ron Staudt was respon- sisting of Lauretta Higgins, Peter sible for the next innovation the law Roskam and Joel Daly, and coached school could justly claim—the es- by Professor Warren Wolfson, won tablishment in 1983 of the Center the 13th Annual National Trial Ad- for Law and Computers. Professor vocacy competition, the start of a Staudt received a grant from IBM marvelous string of victories in na- to install desktop computers into a tional competitions. 106 Then & Now: Stories of Law and Progress Dean Collens also devoted much number of specialized J.D. programs attention to hiring and financially and several graduate programs. supporting the best possible schol- The graduate programs during this ars to teach at Chicago-Kent. Thus, period were in Tax Law, currently within a few years of his decanal run by Professor Gerry Brown, Fi- appointment the following nation- nancial Services, currently run by ally recognized scholars joined the Hank Perritt, and an LL.M. for for- faculty: Dan Tarlock, Mike Spak, eign students, currently run as part Sheldon Nahmod, Stuart Deutsch, of our international programs under Howard Eglit, David Gerber, Marty the direction of Ed Harris. J.D. spe- Malin, Jeffrey Sherman, Joan Stein- cialization certificate programs were man, Margaret Stewart, Richard available to students in Environmen- Wright, Steve Heyman, and Jacob tal Law and Labor Law, later joined Corre. The law school also benefited by Litigation and Dispute Resolution from semester or year-long visits by and Intellectual Property. distinguished professors from elite The successes of the school’s in- law schools, including John Hart novative skills programs led Chief Ely of Harvard, and Gerald Gunther Justice Burger in 1986 to single out of Stanford. Special lectures were Chicago-Kent for special praise. The delivered by celebrated dignitaries high quality of scholarship produced including Justice Arthur Goldberg, by the faculty played a key role in Judge Abner Mikva, Governor Adlai having Chicago-Kent inducted into Stevenson III, Mayor Harold Wash- the prestigious Order of the Coif, the ington, and Mayor Richard J. Daley. 70th school to receive that honor. Financial support for Chicago-Kent And, in 1990, U.S. News and World faculty scholarship was augmented Report listed Chicago-Kent as the by a grant from Paul Freehling in top “Up and Coming Law School in honor of his father, a Chicago-Kent the Country.” alumnus. In 1987, the law school celebrated Wise decisions also were made in its 100th anniversary. The all-day judging young talent. Teachers who celebratory program featured vis- were given their start at Chicago- its by alumni and guests to the law Kent, developed into leading experts school, a convocation at McCor- in their fields, and then moved on to mick Place, the bestowal of honor- other schools included: Fred Abbott, ary Doctor of Laws degrees on Hon. Randy Barnett, Dale Nance, Anita Harry Blackmun of the U.S. Supreme Bernstein, Linda Hirshman, J. Gor- Court and Professor Gerald Gunther don Hylton, and Carol Silver. of Stanford. Speeches were given by Another major change for the law representatives of the students, fac- school was the establishment of a ulty, alumni, legal education organi- Ralph L. Brill 107 zations, and IIT. Dean Collens listed with which to construct a new, state- the agenda the school faced for the of-the art building at 565 W. Adams next 100 years. The list included: St., near Union Station. Among the establishing faculty chairs to attract many innovations in the new build- and retain great faculty; establishing ing were the Abraham Lincoln Ma- interdisciplinary research centers rovitz Courtroom, a 500-seat audi- in such subjects as environmental torium, full computer technology law, energy, computers and the law, in all offices and classrooms, a large legal theory, and problems of the el- fresh food cafeteria, and multiple derly; creating exchange programs student function areas. The building abroad to enhance the teaching of was finished and occupied in 1992. international and comparative law; During the 1990–96 era the law expanding scholarship programs to school faculty and dean focused on attract great students and ease their trying to improve the school’s rep- financial burdens; and to expand the utation among peer groups—i.e., physical plant to accommodate ex- scholarly faculty at other law schools. pected growth in students and fac- Dean Matasar therefore created a ulty. All of these and more would be number of Distinguished Professor- accomplished in the next 25 years. ships, rewarding some of the faculty’s most productive scholars. Many fine D. The Last 25 Years scholars were added to the faculty, including: Cheryl Harris, Lori An- he year 1990–91 was one of the drews, Katherine Baker, Fred Bossel- Tmost important in the school’s man, Evelyn Brody, Bartram Brown, history. First, when IIT’s President James Lindgren, Richard McAdams, Meyer Feldberg suddenly resigned, Richard Warner, Harold Krent, Steve Lew Collens was elected by the IIT Sowle, Richard Hasen, Rafael Gely Board of Trustees to fill that position. and Sarah Harding. The annual law He served as President until 2007. school catalog listed 12 pages of law Professor Joan Steinman served review articles and books for this as interim dean for one year. Rick period. Matasar, the associate dean at Iowa, Dean Matasar resigned in 1996 was then selected to become Chica- to become dean at the University of go-Kent’s next dean, the first Chica- Florida School of Law, and Professor go-Kent dean to be chosen from out- Stuart Deutsch filled in as interim side the ranks of the existing faculty. dean for a year. Professor Steve Sowle Second, the IIT Board of Trustees took over as assistant dean from seized an opportunity to sell the exist- long-time Associate Dean Howard ing law school building at 77 S. Wacker Chapman, who continues to teach Drive and to raise additional funds major courses in the curriculum. 108 Then & Now: Stories of Law and Progress Professor Henry Perritt of Vil- recruiting, to scholarly production, lanova was selected as dean of the to superior skills training, to hav- law school in 1997 and served until ing a major role in legislative and 2002. Perritt was a pioneer in the societal planning. The quality of the use of computers in legal education, students has increased dramatically. wrote a multi-volume treatise on Members of the faculty are leaders in labor law, and consulted on issues their fields, invited to appear on na- related to the war and recovery in tionwide programs as well as deliver Kosovo. As dean he established the talks to individual law school audi- extensive multi-disciplinary Global ences. They are regularly recruited Law and Policy Initiative through by more elite schools, but luckily most which faculty, students, and alumni have remained at Chicago-Kent. The worked together on issues related to Moot Court and the Trial Advocacy international criminal law, assisting programs are consistently ranked the media to deal with political cen- among the top 10 in the country. sorship in Bosnia, computerizing in- The three-year Legal Writing pro- frastructures for courts and business gram remains unique and emu- in Poland, and providing advice to lated. The physical plant has been refugees from the war in Kosovo. continuously upgraded and is still Among the faculty hired during a state-of-the-art facility. The school Dean Perritt’s term were: Graeme has added many international and Dinwoodie, Steven Harris, Mark LL.M. programs, attracting over 100 Rosen, Claire Hill, Tim Holbrook, students annually from all corners of Christopher Leslie, Nancy Marder, the globe. and Peggie Smith. The beginning years of the By the end of Dean Perritt’s term twenty-first century continued the in 2002, Chicago-Kent was ranked wonderful successes of the Moot in the top third of all law schools Court program. Under the direc- by U.S. News and World Report. It tion of Professor Sanford Greenberg was one of only a few schools with and, for the last nine years, Professor an evening division to be ranked Kent Streseman, the Chicago-Kent that high. It ranked behind Chicago, Moot Court program has achieved Northwestern and Illinois among remarkable successes in national law schools in the state. competitions. Our teams have won In 2003, Hal Krent was selected 36 national and regional moot court to succeed Perritt as Chicago-Kent’s competitions, along with over 80 in- dean. He still holds that position. It dividual awards for brief-writing and is fair to say that since his appoint- oral advocacy. It has the distinction ment the law school has succeeded of being the only school nation-wide in every major respect, from faculty to win back-to-back national titles in Ralph L. Brill 109

Photo by Hedrich Blessing Photography of 565 West Adams St., site of IIT Chicago- Kent College of Law, 1992–present. the National Moot Court Competi- Strubbe and Susan Adams, Chica- tion, the oldest and most prestigious go-Kent’s three-year Legal Writing tournament in the country. program continues to be a model Similar successes have come in emulated by many other schools the Trial Advocacy program. Under and consistently ranks among the the direction of former Judge Dave top writing programs in the country. Erickson, and with coaching assis- The program has a group of very tance of many Chicago trial lawyers experienced and dedicated teach- and judges, the Chicago-Kent trial ers: Elizabeth De Armond, Suzanne teams and members have excelled in Ehrenberg, Doug Godfrey, Sanford national and regional competitions. Greenberg, and Kari Johnson. Cher- Since 2000, Chicago-Kent teams ish Keller was hired recently to work have been National Champions four with teaching foreign students in the times. In various regional compe- LL.M. programs. Outstanding Vis- titions Judge Erickson’s teams have iting Assistant Professors fill out been declared Champions nine times. the program before going on to Under the direction of Mary Rose tenure-track teaching jobs at other 110 Then & Now: Stories of Law and Progress law schools. school’s excellent reputation aided The Law Offices of Chicago-Kent the dean and faculty in recruiting greatly expanded during the last 25 outstanding teachers including, years. It now offers a wide range of Sungjoon Cho, Carolyn Shapiro, Mi- long-standing programs in live-cli- chael Scodro, Daniel Hamilton, Felice ent clinical legal education that ac- Batlan, Bernadette Atuahene, William commodate more than 150 students Birdthistle, Kimberly Bailey, César in the fall and spring semesters and Rosado Marzán, Christopher Bucca- more than 50 students in the sum- fusco, Edward Lee, David Schwartz, mer semester. The programs are Stephanie Stern and Christopher diverse, covering the practice of Schmidt. criminal defense law, health and Chicago-Kent’s reputation for disability law, immigration law, em- constant innovation has continued ployment discrimination law, tax law, in the early twenty-first century. The family law, business law, and medi- energy of the new faculty and of the ation and alternative dispute reso- dean has led Chicago-Kent to be- lution. Current full-time teacher/ come home to several institutes and practitioners in the clinic are Gary centers, with missions that range Laser, Richard Kling, Daniel Coyne, from conducting scholarly and Richard Gonzalez, Laurie Leader, practical research on legal and so- Heather Harper, Rhonda de Freitas, cial issues to providing topical pro- Edward Kraus, Ana Mencini, Jona- gramming for the legal community than Decatorsmith, and Pam Ken- to developing public interest initia- tra. Natalie Potts runs a program in tives. Students who become involved Open Government. Vivien Gross su- in these activities, many of which pervises the Judicial Externship and involve cross-disciplinary projects, Legal Externship programs in which learn to appreciate and adapt to students are placed as law clerks for major social and global influences credit with a judge or legal practice. changing the nature of legal practice. The last 10 years have seen the greatest growth in the breadth and II. The Future credentials of the faculty. Dean Krent raised one and a half million hope that one reading this histo- dollars from 450 alumni to create I ry is impressed with the tremen- Chicago-Kent’s first endowed chair, dous growth of this great law school, The Ralph L. Brill Chair in Law. Pro- from the Evening Law Class meeting fessor Adrian Walters, a world-re- in the chambers of Justice Bailey in nowned expert on bankruptcy law 1887 to a vibrant, innovative, state- from the United Kingdom, was ap- of-the-art educational institution. pointed as the first chair-holder. The Among the thousands of its gradu- Ralph L. Brill 111 ates are governors, senators, judges, Ralph L. Brill has been a member of the outstanding lawyers, corporate exec- IIT Chicago-Kent College of Law faculty utives, teachers, and societal leaders. since 1961. He served as Associate Dean from 1970 to 1973, and Acting Dean The present situation is challeng- from 1973 to 1974. For 14 years, Profes- ing. The economy has weakened the sor Brill was director of Chicago-Kent’s demand for lawyers. The costs of unique three-year legal research and writ- legal education have escalated dra- ing program, for which he is widely known. matically. The innovations of the He has been the recipient of numerous past, while great, may not be enough awards for his contributions to the field of Legal Writing, including the Burton for the new issues law schools will Foundation Legends Award, The AALS face in coming years. But through- Section on Legal Writing, the Reasoning out its history, this law school has and Research Annual Award, the Legal met every new challenge, including Writing Institute Lifetime Achievement the Great Depression and two World Award, the ALWD Leadership Award, Wars, by finding ways to innovate and the special LWI/ALWD Ralph L. Brill Award for Long-Time service. Chi- and advance. The Spirits of the cago-Kent’s first endowed chair is named founders, Justices Bailey and Moran, after him, and is held by Ralph L. Brill and Marshall Ewell, and of their suc- Professor Adrian Walters. Professor Brill cessors, hold great promise that this is co-author (with S. Brody, C. Kunz, R. law school will continue to thrive Newmann and M. Walter) of the Amer- and prepare great lawyers and public ican Bar Association publication, A Sourcebook on Legal Writing Programs, leaders far into the future. ◆ has written numerous practical articles on Tort law, and has prepared appellate briefs in many important Tort cases.