University of Wisconsin Law School Forum ARGOYL VolumeXVIII Number 2. Fall 1987

Profiles in Diversity 2 Assistant Dean Joan Rundle o James B. Doyle, In Memorium 6 Han. Barbara Crabb Han. John Reynolds Han. Nathan Heffernan Han. Thomas Fairchild Prof Frank 'Iuerhheimer Atty. John Greene NorthwestOrdinances:Fundamental Lawor TrivialPursuit? 13 Professor Gordon Baldwin On Returningto LegalEducation 17 Professor Walter Dickey Alumni Notes 21 Editor'sNote 22 MysteryPicture 23

Bulletin of the University of Wisconsin Postmaster's note: Please send form Cover: Law School, published quarterly. 3579 to "Gargoyle;' University of Wis- Law School courtyard consin Law School, Madison, WI 53706. Edward J. Reisner, Editor Earl J. Madden, Design Subscription price: 50¢ per year for members. $1.00 per year for non-members. Publication office, Law School, University of Wisconsin, Madison, WI. ISSN 0148-9623 USPS 768-300 2

Profiles of Diversity: Four Members of the Class of 1989

by Assistant Dean Joan Rundle

Three years ago, the Law School conducted an experimental and voluntary survey, which will be repeated this fall, of the entering first-year class. As a result, the Admissions Office com- piled a booklet which listed the background and experiences of 257 of the 283 first-year stu- dents, in areas such as foreign languages, musical talents, public service and volunteer activi- ties, and work experiences. The survey confirmed what the Admissions Committee members, faculty and deans had observed: Wisconsin attracts an incredibly diverse and talented group of people. Some indication of that diversity is available in the general statistics regularly compiled on each entering class. For example, the figures on the Class of 1989 reveal that of 286 first-year students, 223 are residents and 63 are non-residents. They represent 106 undergraduate insti- tutions and 24 home states plus the District of Columbia. The women students comprise 46% of the class, continuing a l O-year trend of over 40% in each class. {By contrast, the University of Michigan law School reached an all-time high of 39% in their incoming class of 1986.} The average age of the class of 1989 upon entry was about 26 years, and 65 students had com- pleted college work beyond the bachelor's degree. These figures suggest that the Class of 1989 continues the tradition of diversity which makes this Law School a special place to be. 'Ib demonstrate the "spice of law school life," I asked four students of the Class of 1989, who have completed their first year, to write brief personal profiles. Their stories follow:

Linda Bennett, New Jersey the proposed ERA. I remember one hot afternoon, my feet were blistered and an I studied Communications at Rutgers elderly man had just spit on me and I University in New Brunswick, New Jer- thought "How is this going to do a damn sey. To fulfill requirements in my pro- thing to make society more just?" Yet, it gram, I took several photography was the time I spent in Florida and Geor- courses. Strangely, it was those classes gia, discussing with senior citizens, labor- which I think best prepared me for law ers, homemakers and other students the school. Photographic process is similar to meaning of equality that sparked my legal analysis. I had to master technical desire to study law. Through my grass skills in developing film and printing neg- roots work on the ERA I became inter- atives so that I could control the variables ested in questions about the nature of to create the images and visions I wanted law, its limits, history and theory. to express. Similarly, I have worked to I did not enter the University of Wis- develop expertise in researching law and consin Law School immediately after col- in understanding legal doctrines so that lege. After graduation in 1983, I worked a I can marshal persuasive arguments. year's stint as a typesetter and graphic When taking a picture, I concentrated artist in a newspaper production com- on what to exclude as well as what to pany. I worked on the production of include in the view finder. My sense of the Spanish newspaper, "EI Diario! how to characterize the facts of a case La Prensa." In 1984, I took a staff job was prefaced by this attention on focus- at Ms. Magazine in New York City and ing and framing the basic question of worked there until I entered the Univer- what to photograph. sity of Wisconsin Law School in fall 1986. During college, in 1981, I helped start While my job in the Research Depart- an Equal Rights Amendment Action ment did have its share of drudgery, I Group on campus. Over winter recess, in felt an urgency about the work that was Florida and Georgia, I worked to ratify exciting. Part of that urgency stemmed 3 from the journalistic demands of the job. This summer I will be enrolled in the I was a fact-checker. I was responsible Legal Assistance to Institutionalized Per- for verifying information in Ms. articles sons program (LAIP).LAIP is a clinical under deadline pressure. That meant program in which students gain experi- reading each article carefully and criti- ence while attempting to resolve legal cally. Then I double-checked each sup- problems of indigent clients. I will be porting detail for accuracy and tried to working under the supervision of attor- ascertain if the facts were relevant and ney Dave Cook with inmates at various not misleading or potentially libelous. Wisconsin minimum security prisons, Aside from the rush created by the and I look forward to this hands-on push to get the magazine ready for the experience. printers, I felt an immediacy about the I was born in Chicago and lived there issues and ideas contained in the articles. on and off until I was eight years old. In As a fact-checker I enjoyed digging into 1966, my family moved to Peoria, Illinois, the trivial and essential facts surrounding and there I attended elementary and high social and political issues. One day I school. I don't want to say anything would be on the phone with scientists to unkind about Peoria. verify the reproductive effects from the Despite my parents' goading, I did Bhopal tragedy and the next day I would only mediocre scholastic work in high be checking statistics about female school. I barely graduated in the top third headed families living below the pov- of my class, but I did enjoy being on the erty line. high school debate team and won a num- Besides the research and editorial ber of tournaments and speaking awards. skills I developed at Ms., I also gained I attended Carleton College in Northfield, insight into feminism and law. I had a Minnesota, for two years, and took a jun- daily view of the conflicts between the- ior year abroad in Scotland at the Univer- ory and practice, the tensions between sity of St. Andrews. Like many people, the push for feminist change and the I found college brought out better work inertia of the status quo. My research on from me. Activities at Carleton included articles about product liability, affirma- the Eating and Arguing Society (informal tive action and child abuse, made me parliamentary style debate), celibacy, and more appreciative of the difficult and hopping freight trains to various points complex task our courts face when trying in Iowa and Minnesota. I think I enjoyed to resolve disputes in these areas. the freight hopping the best, consumed Currently, I am working as a Research then (as now) with a passion for the rail- Assistant for Law Professor Martha Fine- road. This passion later led me to two man and at the law offices of Boardman, fine seasonal jobs, one as a brakeman for Suhr, Curry & Field, in Madison. the Toledo, Peoria and Western Railroad; I am helping Professor Fineman and the other as a coach and sleeping car research the politics of fathers' rights. I porter for Amtrak. Since then I have been am also helping to coordinate this sum- active in groups (such as the National mer's Feminism and Legal Theory Con- Association of Railroad Passengers) that ference. The theme of the conference is seek to promote and improve passenger intimacy. Scholars will be exploring how train service in the United States. I have law regulates, structures and maintains served as president of our local group, a variety of relationships. ProRail, and am on the board of the state organization. I also have the dubious tal- Aaron Bransky, Wisconsin ent of being able to recite from memory much of the Amtrak timetable. After four years of working as an ice In 1980, I transferred to the University cream and frozen foods route salesman, of Wisconsin at Madison to complete my I decided to change my career to an undergraduate degree. I graduated Phi indoor job with no heavy lifting. As such, Beta Kappa with a double degree in I returned to the University of Wisconsin Geography and History of Science and as a first-year law student. then went out to find some kind of job. Some people told me how horrible I managed a food co-op for a short time legal education was supposed to be. True, until it folded, and then climbed aboard I have had to work harder in law school the ice cream bandwagon with Larry than I ever had before. However, I have Tuthill, Madison's Haagen-Dazs distribu- not found my home life to suffer from tor. This job was generally quite pleasant, this workload, and I have been pleasantly and it gave me enough spare time to do surprised by the high quality of instruc- things I liked. Through volunteer work, tion and by the friendliness and intelli- I met my wife, a nurse at Methodist Hos- gence of my classmates. This friendliness pital. We married in July 1986, a move and relative informality is a big reason I that I am glad we made, and we enjoy decided to enroll here and is one of the bicycling, travelling, fishing, and star- Law School's strongest points. gazing together. 4

The Law School admits a fair number I was recipient of the Oklahoma Uni- of older students, so at 28, I am about the versity President's Leadership Award, same age as many of my classmates. Buford V. Lawson Orator Award, David Those of us who have worked and have A. Burr Leadership Award and the been out of school probably appreciate George Henderson Leadership Service student life more than before, and I hope Award. I have been honored as the Alphi all of my classmates have enjoyed their Phi Alpha Distinguished Collegian and first year as much as I have. Brother of the Year, and named BigMan on Campus at the University of Okla- Keith Borders, Oklahoma homa from which I graduated in· ly 1986 with a public administration degree I have just finished my first year as a law Hopefully, my professional and aca- student at the University of Wisconsin, demic experience will contribute to my which has been an enlightening experi- credibility as a future attorney. ence conducive to my belief of achieving When I am not preparing for classes knowledge through broadening my expo- or examinations, I enjoy "lighter" read- sure to environmental, cultural and aca- ing. The subjects I enjoy most relate to demic differences. public affairs and policy, such as Minorit; My interest in the law, public policy Vote Dilution, Capitol Hill in Black and and leadership, spans from being senior White, and Simple Justice. I also enjoy class president at Del City High School in easy-listening jazz, public speaking and Del City, Oklahoma, to participation in playing basketball. an Anti-Apartheid Rally on the steps of Capitol Hill. In the summer of 1987, as Kimberly Patterson, Wisconsin a Jackson Fellow, I interned with the NAACP Legal Defense Fund in New York After working for nine years, walking City, a clinical program of the Law School back into school, never mind law school, under Professor James E. Jones, Jr. is pretty intimidating. It wasn't long I have attempted to place myself in before I knew I had done the right thing. many leadership roles to fulfill my contri- Everyone here did their best to lower the bution to establishing a more equitable anxiety level, and soon I felt as though environment for minorities. I would I'd never left school. hope that my intentions and experience School began and ended in Milwau- through public policy construct a more kee, where I was born and raised. The aware society. oldest of five children, I was always My current organizational affiliations strongly encouraged to continue my include being a student liaison to the education. My parents often told me that State Bar of Wisconsin Governmental/ I could be whatever I wanted to be if I Administrative Law Committee, a mem- worked hard. I'm sure they never ber of the Faculty Appointments Com- thought I would be a lawyer, though. mittee and Black Law Student Associa- My dad wanted me to be an architect. tion. I have been chapter president at the In looking back, it seems that I've been University of Oklahoma and state vice almost everything but an architect. president of the Alpha Phi Alpha Frater- In high school and my early college nity. I served as the president of the career, I wanted to be a professional Black People's Union at Oklahoma Uni- musician. Playing several concert violin versity and later became the Chairman solos gave me valuable experience in of the Big Eight Conference on Black appearing in front of people. The though Student Government. of going blank in the middle of a concert Such involvement has lead to my performance is more terrifying than the selection for several honors and awards. prospect of losing your place during oral I have also been fortunate to participate argument-the orchestra will just go on in numerous internships. As a research without you! Giving music lessons in vio assistant for the Southwest Center for lin, guitar and bass generated my interest Human Relations Studies, I prepared a in education, and later I switched to an report on the "Feminization of Poverty:' education major. and a demographic analysis of Oklahoma After graduation from the University ethnic groups. of Wisconsin-Milwaukee in 1977, I sub- I contributed to an analysis on Okla- stitute taught part-time in elementary homa Economic Development Strategies education and music. At the same time, for the State Senate through an Economic I started the job which made me decide Policy Internship. I received the Cortez that I wanted to be a lawyer. As a private M. Ewing Public Service Internship investigator, I got my first close look at which allowed me to prepare a summary the criminal justice system. Working pri- of the Department of Education financial marily in the criminal defense field, I assistance programs. The information realized the important part attorneys play was later compiled in a policy report for in protecting our rights, and indeed our U.S. Senator David Boren. system of law. I also realized that law can 5 provide a continuing intellectual chal- I hope will serve me well as an attorney, lenge. I was lucky enough to work with including discipline, persistence and feel- several of the finest attorneys in Wis- ing comfortable making presentations to consin. influential people. It was very hard to Even a criminal defense investigator's leave my company because the people life is not like Mike Hammer's. The scari- I worked with became my second family. est thing I ever had to do was to drive I still check the I.:eggs display when I'm across the ice highway of Lake Superior in the grocery store. However, my desire from Bayfield to the Apostle Islands to to become a lawyer was strong. I recall see a client. Pretty tame stuff! that once, when I was particularly upset In 1980, I took a detour from law that because things hadn't gone well with an lasted for six years. I began working for account, my boss had some advice for the division of Hanes Corporation which me. He told me not to worry, that in the distributes I.:eggs hosiery. In 61/2 years, long run, "it's only pantyhose." You can't I held five positions. These ranged from say that about law. the coordinator of a test market program, I am spending the summer working to managing a region which generated for LAIP,Legal Assistance to Institutiona- $8 million per year in sales, to generating lized Persons, program. One of the major $6 million in sales as a key account sales reasons I chose Wisconsin is their fine representative. clinical programs, which combine pub- Working in business helped me to lic service with a strong educational develop many skills and habits which experience. 6

James E. Doyle (1915-1987) Senior Judge, U.S..District Court, W. District of Wisconsin

When Jim Doyle died, the University of Wis- consin Law School lost a good friend. This tribute to him may seem unusual since he never attended our School. But we could have had no better alum, no firmer friend than James Doyle. If the Law School was sponsoring some event, or welcoming some dignitary with a dinner,Jim Doyle was there. If we needed someone to talk to law students about judi- cial clerkships, Jim Doyle was there. Long after his wife, Ruth, had retired as an Assis- tant to the Dean, Ruth and Jim were as much a part of our Law School family as anyone. Early in his career,Jim even found time to serve us as a lecturer. The reflections of his friends and col- leagues collected on the next several pages more than tell his story. It is a story of politi- cal idealism, scholarship and inspiration by example. We will miss Jim Doyle, and use these pages to say not only good bye, but also remind ourselves that his memory will be with us forever.

Remarks by the the more I admired him and marveled at Many capable people can confront a his abilities. If he had a bad side, it was particular problem and devise a reasona- Hon. Barbara B. Crabb, never visible. With Judge Doyle, "what bly satisfactory solution to it. Only a few, U.S. District Court, you saw was what you got." And what like Judge Doyle, have a different order you saw was simply the kindest, bright- of intelligence that impels them to look W. District of Wisconsin est, most courageous, principled, and beyond what appears to be the problem wryly humorous person I ever expect to a different reality, to see the problem Dear Friends of James Doyle, to know. in a broader context, with farther reach- Each of you knows what kind of a per- He relished the intellectual challenge ing implications, and to approach it with son he was. You know how difficult it is of judging and brought to it a formidable an utterly fresh perspective. to describe him other than in superla- intelligence. I would call him brilliant, This capacity often caused some sur- tives, or worse, becoming mushy-a fate but for the possibility that "brilliant" prises for lawyers, who had not antici- I will try to avoid. might suggest an arrogant intellect, and pated the issues that Judge Doyle would I swear to tell the truth and nothing arrogance was never any part of Judge discover lurking below the surface of an but the truth. I do not presume to tell the Doyle. His intellect was of the probing, apparently straight-forward case. More whole truth. speculative, questioning kind. It could than one bewildered lawyer has found As a witness, I would have greater never be said of him as it is of many fed- him or herself in Chicago urging the credibility if I could testify that Judge eral judges, "often in error; never in court of appeals to affirm a favorable Doyle had some major fault or character doubt." Tothe contrary, he was often in decision of Judge Doyle's on a ground the flaw. If he did, I never discovered it. The doubt-particularly of easy answers or lawyer never asserted-or necessarily truth is, the longer I worked with him, unexamined assumptions. understood in full. 7

For Judge Doyle, there was no such His empathy and compassion made appointment show or let it affect his thing as an unimportant case; there was him an outstanding judge, but I don't friendship. no such thing as an unimportant person. think they made it easy for him to be a By friends, I include his children and To him, the purpose of the Constitution judge. Many of the aspects of the job their spouses. Never have I known any- of the United States, expressed in the pre- were terribly difficult for him. I think one who treated his children with such amble, "to form a more perfect union" in particular of the early 1970swhen so respect for their own abilities and indi- meant to form a more perfect union of many of the defendants who came before viduality. He was proud of each of them every person, whatever his or her situa- the judge for sentencing were highly for their accomplishments, but his pride tion. In a speech he gave in 1973,he moral, young men, full of promise, who was entirely for them and not for expressed this view, saying, "In signifi- chose to resist the draft. himself. cant measure, the patients in mental hos- However difficult the task, Judge Judge Doyle cared deeply about his pitals, the inmates of prisons, the stu- Doyle never flinched from carrying out friends and cherished them particularly dents in the public schools, the soldiers the duties imposed upon him by the law. after he became a judge and had to re- and sailors and marines and air corps He never viewed himself as having been move himself from the active, more personnel, have not beep.afforded full appointed to the bench to "do good," sociable life of politics and private membership in the constitutional com- whatever that might mean. He observed practice. munity. It is time that they and others the rule of law with that absolute integ- There is much more to say-about become full members. It is time that rity that governed everything about his Judge Doyle's gift of expression and love there be a sense that the majestic phrases life. He was incapable of ignoring an of language that made his speeches and of the constitution-due process of law, inconvenient fact in a case or a contrary his writings so eloquent, his courage in the equal protection of the laws-have legal precedent. He might disagree with the lonely years of judging and the lone- real meaning for every person within our the views of a higher court, but he would lier years of his illness, his self-deprecat- borders. It is time to form a more perfect never disregard those views. He never ing humor, and his sharp appreciation of constitutional union." hesitated to exercise the authority of his the absurdities of life. But time runs out. It was a fundamental proposition with office when it was necessary, but no one Having established myself a hope- him that women and minorities were as knew better than he the limits of that lessly biased witness, I will cease with capable and as deserving of opportunities authority, or was more careful not to the statement of a more impartial ob- as white males and he recruited them exercise it except when he was certain of server: a letter to Judge Doyle written and appointed them to positions within its justification. He operated on the prin- on March 2, 1987, from a United States the court. In this, surely he was spurred ciple that, as arbiters of the legal obliga- Attorney appointed by President Nixon: by Ruth Bachhuber Doyle, who by her tions of others in our society, the courts Dear Judge Doyle: own example destroyed any myth of must be particularly fastidious about the For a long time, I have had some female inferiority. propriety of their own actions. thoughts that I wanted to express to you. He extended his unimaginable cour- I have been telling you about James I regret that I did not share these thoughts tesy and kindness to everyone with Doyle as a judge. Let me tell you briefly with you at a time prior to learning of your whom he dealt. He had an empathy for about him as a friend, and about the continuing illness. No matter how clumsy people and their circumstances that was quality of his friendships. the timing of this letter may be, I could not remarkable. As anomalous as it may sound to say let my thoughts go unstated. Indeed, his empathy was legendary. It about a judge, he was the least judgmen- It would not be truthful on my part to was displayed most publicly in the court- tal of persons. There were no precondi- suggest that I agreed {or now agree} with room when lawyers struggling with their tions to his friendship or any obligations some of your more controversial decisions. arguments might hear the judge articu- placed upon it. Dozens of people sought What is totally truthful is the fact that dur- late the issue for them, more cogently him out for help, for comfort, for moral ing the time I had an opportunity to work in than they would ever have achieved. The support. He never failed to respond, but your presence, I knew then that I was in the same phenomenon occurred with all of he almost never gave advice. presence of greatness. It may be that I can- us who worked with him; we'd start talk- He trusted others to make their own not define "greatness," but I like to think ing to him about some problem and find decisions. He might help with the pro- that I know it when I see it. What I saw in that he had grasped it and could respond cess of deciding, articulating the prob- you was a magnificent human being and before we'd even given shape to it. Un- lem, listening with that focused, calm jurist. I can truthfully say that I have never like most people, and particularly unlike concentration to what was said, and sens- had an opportunity to know another person most people in public life, Judge Doyle ing much of what was left unsaid, but he who I considered to measure up to the quali- preserved a calm inner center, and the would not impose his own views on his ties that you display. ability to focus all his energies on the friends. If at times the course of action I will always cherish my brief association issue, or the task, or the person before taken disappointed him, and I'm sure with you. him. sometimes it did, he never let the dis- SO SAYWE ALL. 8

Remarks by the combs." With his extraordinary wit and a devoted and loyal following, many of dry sense of humor, Jim would make whom adored him. In fact, his following Hon. John Reynolds, friends and gain supporters wherever he at times was referred to as a cult. It traveled for the cause. wasn't though, because you can't have a U.S. District Court, The first statewide convention of the cult without a cult leader; a role that Jim E. District of Wisconsin Democratic Organizing Committee was would never accept. Jim was truly loved held in Green Bay in 1949, and Jim Doyle and admired deeply by his friends, and of Madison was elected party treasurer. they showed their feelings by the hard James E. Doyle played a central role in Joe McCarthy started his national cam- work they did for him. shaping Wisconsin's political and legal paign against the "communists" in the As the intellectual leader and con- history for four decades. Jim was the con- state department about then. Jim saw the science of the Democratic party in Wis- science and intellectual leader of the Wis- challenge and rededicated himself to the consin from 1945 until he assumed the consin Democratic party in the twenty rebuilding of the Democratic party as an bench in 1965,James E. Doyle had great years immediately following World War effective vehicle against Joe McCarthy. influence. jim's individual support for a II. His dedication towards protecting and His speech attacking Joe McCarthy at the candidate translated into a statewide net- nurturing the policies of the Progressives, 1950Democratic state convention in Eau work of workers. He gave to the party and extending those principles into the Claire was electrifying. It inspired those to which he dedicated himself not only areas of civil rights and individual liber- present to go home and work incessantly intellectual leadership, but a form of ties, is his lasting contribution to our for the defeat of what was then consid- pragmatic liberalism. He recognized that society. ered to be one of the most evil forces in compromise was often times the price of Jim was born and raised in Oshkosh, America, led by a relatively innocuous, political support for government action received his undergraduate education at almost comical, figure. Jim later stated or inaction. the University of Wisconsin-Madison that he regarded the whole effort of Jim brought to the DOC and later to and his law degree from Columbia. He rebuilding the Democratic party worth- the Democratic party its first and, for a immediately commenced his public ser- while if it slowed down or stopped Joe while, only national contacts. His time at vice by becoming a law clerk for Justice McCarthy. The opposition to Senator Columbia, and as a Supreme Court clerk James F. "Jimmy" Byrnes of the U.S. McCarthy at home was, in no small part, and assistant to the Secretary of State, Supreme Court. Service in the U.S. Navy due to the efforts of Jim Doyle. gave him contacts with the eastern estab- during the war interrupted his legal Jim was elected chairman of the Dem- lishment that few of the homegrown lib- career. He left the navy when Jimmy ocratic party of Wisconsin in 1951and set erals in Wisconsin had. During those cru- Byrnes, who was then "Deputy Presi- upon preparing for the campaign against cial post New Deal years, Jim led the dent," asked him to serve as his aide. Joe McCarthy. He released the organiza- DOC, and later the state Democratic He went with Byrnes to the state depart- tional director of the Democratic party, party, towards the Americans for Demo- ment and attended the peace conference Pat Lucey, to manage Tom Fairchild's sen- cratic Action's support of Truman's Fair at Potsdam as an aide to Secretary of atorial campaign. He then hired John Deal, and away from Henry Wallace's State Byrnes. Gronouski, who later served as Postmas- Progressive Party. Jim returned to Wisconsin in 1946as ter General and Ambassador to Poland, Following his term as state chairman an Assistant U.S. Attorney for the West- as the party organizer. Despite the non- in 1952, he was elected national co-chair- ern District of Wisconsin. At that time, endorsement position of the Democratic man of the Americans for Democratic the liberals were in disarray. Senator party, Jim was pleased to ~ee his old Action with Arthur Schlessinger. Eleanor Robert M. La Follette, jr., had just been friend, Tom Fairchild, win the party's Roosevelt was honorary chairman. Jim defeated by Joe McCarthy, and the Dem- nomination to run against Joe McCarthy. continued his interest in national politics ocratic party was an empty shell. After Jim and other Fairchild supporters and supported Adlai Stevenson in 1952 he left the U.S. Attorney's Office, he worked tirelessly because they were and 1956. In the 1960 campaign, he was joined the law firm headed up by former driven by a feeling, rarely experienced the national chairman of the "Stevenson Governor Phillip F. La Follette. in a political campaign, that it truly was for President" committee. Jim and his wife Ruth became active a battle between good and evil. Jim was blessed not only with an in Wisconsin politics. They helped organ- All through the 1950s, he took an amazing political and legal life, but also ize the "Democratic Organizing Commit- active role in the Wisconsin Democratic by a remarkable family. Throughout tee" ("DOC"); the vehicle used to turn party, going from county meeting to his career, his wife Ruth was equally the then-conservative Democratic Party county meeting. Particularly memorable involved in the organization of the Demo- of Wisconsin into a liberal movement. was a speech he gave to a county meeting cratic party; and in fact one time, Jim Jim drafted the original constitution of in Green Bay in 1957. He discussed John wondered out loud, "Wasn't it remark- the DOC in 1948, and he, along with sev- Kenneth Galbraith's then-new book, able how we men just all assumed that eral other young persons, set about to The Affluent Society. Jim thoughtfully ex- those Dane County women should do all organize a DOC chapter in each country plained to the Green Bay Democrats the that hard work while we would go out in the state. difficulties of maintaining a high level of and give the speeches." Ruth always Jim and his fellow DOC state co-chair- governmental services, the support for worked very hard in her own right-in men, Carl Thompson and Gaylord Nel- which came from the unpopular progres- party activities, as a candidate for state son, proceeded to travel to every county sive income tax. He was one of the first treasurer, as a two-term member of the in the state, including some where there Democrats to support the sales tax as a legislature, and as a member of the Madi- were almost no Democrats. Jim once said means to pay for the services the voters son school board. "There are places around the state where desired. Jim was also a remarkable and patient it takes courage to be a Democrat. The jim's defeat by William Proxmire in father. If he ever gave his children direc- few professed Democrats are like the the primary race for Governor in 1954 tion, I never noticed it, but he certainly early Christians-they feel as though they was a keen disappointment to him. It inspired them. They were free to do what should hold their meetings in the cata- was especially so because he had such they wanted to do, but it so happens they 9 all wound up being lawyers. Mary is the rare in political life. Others will write, active and still retain their intellectual Dean of the Law School at University of I trust, of his great legal career, but his honesty. Miami; Jim, Jr., is practicing law in Madi- work and dedication to shaping the pub- James E. Doyle had a great and full son; Kate is practicing law in Milwaukee; lic policy of the State of Wisconsin was life, and for those of us who had the and Ann just graduated from Georgetown even more important and profound than opportunity to work with him, we were Law School in Washington. his contributions on the bench; and this inspired by his example. We are, even Jim was a true friend in that he stuck is not because he wasn't an outstanding those who never met him, better for the with you even when he thought you were judge. His life is a shining example to our fact that Jim has lived amongst us. wrong. Anyone can stand by you when young lawyers who will shape the politi- you're right, but a man like Jim is very cal future; they can become politically

persons he considered worthy to be can- While there are those who would con- Remarks by the didates in each county. Additionally, he tend that judges should spring fullblown Hon. Nathan Heffernan, was the philosopher of the party, articu- from the head of Zeus-or a judicial qual- lating in carefully researched speeches ifications commission-it is my belief Chief Justice, the reasons why there should be a vigor- that the best judges are those who have Wisconsin Supreme Court ous Democratic Party in Wisconsin. He had experiences in the struggles and pas- was also the principal speechwriter for sions of their time and have had some numerous candidates on the state Demo- contact with the political world. Because I knew Judge Doyle well in his cratic ticket. I think it is clear that he, Additionally, Jim Doyle possessed- two separate careers-first as a partisan more than anyone else in the early days beyond mere technical competence and politician and then as a non-partisan of the party's struggles and up to the qualifying experience-the cardinal vir- judge, it is tempting to dwell on the for- breakthrough election of 1958when Gay- tues which are the prerequisite to being a mer at the expense of the latter. I will try lord Nelson was elected governor was the great judge. He was independent within not to do so and instead will attempt, I spokesman for the party's reason for the limits of the litigation before him. He hope, a balanced remembrance of Jim existence. strove and succeeded in being free of all Doyle's completely separate, but never- In addition, Jim Doyle was the state partisan influence and the influence of theless related personae. I believe the party's principal liaison with the National any factors save those that he conceived relationship is important, for Jim Doyle's Democratic Party and such national to be a part of the law and the cause of career as a politician foreshadowed his organizations as the Americans for Dem- justice. He was a courteous and patient qualities as a judge. ocratic Action, which he co-chaired with man. When a lesser person would have Jim, a Wisconsin native and graduate Mrs. Eleanor Roosevelt. In 1960, he was been rankled by vexatious situations, Jim of the University of Wisconsin, received first the State Chairman and then the Doyle, painstakingly and with consum- his legal training at Columbia University. National Chairman of Adlai Stevenson's mate patience, gave every litigant and From the beginning, his career was spec- attempt to secure the Democratic Party lawyer his day-and then some-in court. tacular. He was president of his senior nomination for the presidency. He also was a judge of great dignity in class at Wisconsin; and after his gradua- His services as a partisan Democratic the sense that he manifested the noblest tion from the Columbia Law School, he were idealistic, unselfish, and commit- and most honorable attributes of high was clerk to United States Supreme ted. While so engaged, he also was devel- office. He was a person to be trusted Court Justice James Byrnes and assistant oping his skills as a lawyer, and he soon with great powers vested in a United to the Solicitor General of the United was recognized as one of the leading law- States District Judge. Yet, although he States and, as assistant to the Secretary yers in the state. took his duties seriously, he was far from of State, one of the principal organizers In 1965,Jim Doyle volunteered to being a lugubrious or overly solemn per- of the San Francisco Conference which manage my campaign for the Supreme son. He did not take himself too seri- formed the United Nations. Court. He put his talents as a political ously. He was, in fact, one of the funniest But he left this brilliant career in organizer and as a fundraiser unstintingly and best humored persons I have ever Washington to return to Wisconsin for at the disposal of my campaign commit- met. It was his good humor that kept Jim the avowed purpose of revitalizing the tee. His wise counsel and abundant expe- Doyle from being a stuffed shirt. He was state's Democratic Party, which had rience were undoubtedly the difference dignified but never pompous. fallen into difficult days when the La Fol- that meant success in a hotly contested Despite his partisan past, open- lette branch of the Republic Party pre- and narrowly won election. mindedness and careful attention to con- empted-or so it seemed-the liberal Shortly after that election in 1965, tending parties' points of view were the point of view in Wisconsin. President Johnson appointed Jim Doyle hallmarks of his craft as a judge. Never Jim Doyle, more than anyone else, to be the United States District Judge did he issue an opinion that failed to I believe, was the healer who brought a here in Madison. He was immediately demonstrate that he had carefully con- degree of harmony between the bickering confirmed by the Senate. sidered the conflicting points of view of branches of those who would be Wiscon- He was a natural for the job. His past the litigants. sin Democrats. He worked unceasingly career had proved that he was a brilliant He had the great literary aptitude of on the difficult organizational problems scholar and a person who understood being able to express his views in a way of the new party. He travelled from one how the government operated and how that his consideration of the fine points end of the state to the other to encourage the political and legal systems really ran. of law and the point of view of the par- 10

ties was demonstrated and expressed not the time to digress and to restate his crossed-first in the political world and with unmistakable clarity. concern about those who had come then as judges. Judge Doyle was acutely A corollary to his open-mindedness before him and had been convicted of aware of the role of the state courts in was his impartiality. Although he was a crimes, I mention in passing his interest our American system of justice and was person of intense personal predilections in seeing to it that our prison system not always ready to cooperate and to lead in and beliefs, in his judicial work those contribute to man's inhumanity to man. the efforts to smooth the occasional dif- personal preferences, no matter how Also, while all these attributes-inde- ferences that cropped up between the clearly cherished, were put aside and pendence, courtesy and patience, dignity courts of Wisconsin and the courts of the the cases before him were decided with with a sense of humor, open-mindedness, United States. He actively participated in impartiality on the basis of the facts and impartiality, thoroughness and decisive- the programs of the Wisconsin Judicial in accordance with the applicable law. ness, and an understanding heart-made Conference. He was the understanding While these attributes stated above are Jim Doyle a great judge, we should not friend of every Wisconsin judge. indicia of deliberativeness, his judgments forget the characteristic that made him By the passing of Jim Doyle, I have were decisive for the very reasons that a great man before he became a great lost a great friend, who has been an the ratio decedendi of each decision was judge-the characteristic that made him inspiration to my career and for whose so framed that the results were the logi- a great and respected political leader-an help I will be forever grateful. But more cal and inexorable outcome of his delib- acute and sensitive social consciousness. significantly, Wisconsin and the nation erations. Yet, if I were to rest my ap- I have no doubt that Jim Doyle was have lost a great man and a great judge. praisal of Jim Doyle on only the above impelled to be a judge for the same rea- But the fact that he, for more than forty qualities-all of which are qualities that son that he was impelled to be a political years, contributed to the political and make a great judge-I would miss the leader. His motivating force was to im- judicial life of Wisconsin is cause for characteristics that made him more than prove the lot of his fellowman-as a parti- gratitude. Wisconsin and the nation are just an extraordinarily fine judge. I refer san through a revised and more sensitive better places to live because Jim Doyle to his oft demonstrated characteristic of political order, and as a judge by assuring has been among us. This enhancement an understanding and compassionate that each person before him was afforded of the cause of justice overshadows our heart. He was not a mechanical jurispru- equal justice under our Anglo-American momentary loss. I am sure Judge Doyle dent. He was concerned with each liti- system of law. would want us to view his career in no gant as a human being entitled to justice It has been my good fortune that Jim other way. under our system of law. While this is Doyle's career and mine occasionally

Remarks by the tions, but by 1958,the party began to work out, but bringing government elect Governors. toward his ideal was always the main Hon. Thomas Fairchild, Starting in 1948,Jim played a signifi- goal. He said his activity in Americans cant role, along with Carl Thompson, for Democratic Action and his support 7th Circuit Court of Appeals Bob Tehan, Horace Wilkie, Jerry Fox, for Adlai Stevenson, continuing into 1960, Gaylord Nelson, Miles McMillin, and as furthering this purpose. More than 50 years ago, while I was a others in the revitalization of the Wiscon- We know now, of course, of the great law student at Madison, I became aware sin Democratic Party. The objective was individual contribution of public service of the stature of lim Doyle as a forceful to spark up long-time Democrats, win he was to make as United States District and eloquent leader among independents over former La Follette Progressives, and Judge from 1965 to 1987. His task was in campus politics. Two other university appeal to other unaligned people. Jim unusually arduous. He was the only students, Ruth Bachuber, later Doyle, profoundly affected my life with a tele- judge in the Western District of Wiscon- and Eleanor Dahl, later Fairchild, had be- phone call early one Sunday morning in sin. Comparing the per judge case load come friends, and Jim and I got to know July, 1948. He told me a state ticket was figures in all Districts, his were for many each other as a result. being put together, not with any expecta- years consistently near the top. He car- I recall a visit with Jim after the war, tion of winning, but as a start in building ried the burden magnificently, without shortly before he returned to Madison to an effective Party. He persuaded me sacrificing his standard of objective, practice law. He had,been a law clerk for within a day or two to be a candidate for even-tempered consideration of every Justice Byrnes, and an aide when Byrnes Attorney General. During my political person who came before him. was Secretary of State. Byrnes had efforts for the next four years, and in the He believed in his duty to uphold First advised him not to return to Wisconsin, years to come, I often received his valued Amendment freedoms and gave judicial a solidly Republican state. Jim had said advice and help. He was a wonderful per- protection to types of expression distaste- Democratic strength could be built up. son, and great fun to know. ful to the majority and probably to him- Byrnes replied with a prediction: "You Jim worked to create an effective self. He was devoted to the University as will work hard. Every election you will political instrument to express the will an intellectual institution, but in the trou- take satisfaction in increasing the Demo- of the many. He had an ideal of a govern- bled times of protest, firmly insisted on cratic vote a tiny fraction of a per cent. ment capable of making rational choices due process in its regulation of student And about the end of your career, maybe in the search for peace, protection of conduct. He was not in awe of shibbo- you can say, 'Yesterday, we got close to individual well-being, and broadening leths and would carefully test a newly 49%: t t In the late '40s and early '50s, opportunities. Any thoughts he had of advanced proposition in any type of case Jim had to be happy with the little frac- holding political office himself did not until convinced it had no merit. 11

After Congress authorized a second respect of his colleagues on those courts. eign to his judicial work. The political judge for the district, and after Jim Objective, impartial, analytical, and judicial stages of his career had in became a senior judge, he was free to learned, and considerate. All those adjec- common, however, his service of lofty accept designations to courts of appeals tives were characteristic of Jim Doyle as ideals with ability, integrity, and respect around the country. His work won the a judge. Partisan politics were wholly for- for every individual.

success rate may have improved some- than I had in my whole life up to an hour Remarks by what-it hardly couldn't-one aspect of ago." For any attorney wanting to learn, Prof. Frank Tuerkheimer, the first two experiences remained con- Judge Doyle was there to teach. stant: every time I appeared before him All of the above, however, only yields University of Wisconsin I learned something. Therefore the per- a partial picture of Judge Doyle. There Law School spective I developed of Judge Doyle is were yearly notes on the anniversary of a rare perspective of a judge: the judge my appointment as United States Attor- In my first appearance before Judge as teacher. ney containing some personal sentiments Doyle, I represented the Sierra Club in Judge Doyle was clearly that. He of his. There were yearly notes to my sec- an effort to enjoin construction of a dam made sure that a lawyer swept nothing retary on her birthday, written in a tone on the Kickapoo River. I had heard that under the rug in trial preparation for he of appreciation and affinity with just a Judge Doyle was a great "liberal" judge was certain to lift the rug and find it. He touch of appropriate distance. There was and, feeling that my case was correct and made sure that lawyers, while mired in his inevitable presence at courthouse solid, was quite sure that with this com- the complexities of a case, asked the functions, usually co-mingling with non- bination I would prevail. When I lost the basic and simple questions because if the legal staff-open, but still, at times, shy. case I learned that "liberals" growing up lawyers didn't, he was sure to do so. Per- It is here that Jim Doyle emerges from during the New Deal do not necessarily haps most important, Judge Doyle was a the pack. There are other brilliant judges, view public works projects with the same fantastic barometer of the rhythm of a judges who inspire reverence, if not awe misgivings as latter-day liberals. case. Passion and dispassion are not from those regularly appearing before In my second appearance before Judge mutually exclusive courtroom demean- them. Perhaps some of these are even Doyle, I represented an indigent in an ors; there is a time for each. I learned more brilliant than Jim Doyle-he cer- effort to set aside a judgment of convic- that by watching him, I could gauge by tainly would be the first to say they were. tion. I had heard that Judge Doyle was a his reactions whether he thought either But very few judges evoke both a sense "pro-defendant" judge and, feeling that was out of place or wanting. His involve- of reverence and a sense of warmth. Jim my case was meritorious, was sure I had ment in a trial was total and it created an Doyle is one of the very few who does. a good chance at prevailing. When I lost exciting dimension to the trial of cases in His extraordinary abilities set him apart the case I learned that Judge Doyle, front of him. from the many; his warmth sets apart while perhaps "pro-defendant" in the Because he had so much to offer trial from this select few. sense that the presumption of innocence attorneys, I encouraged new Assistant From a professional point of view, meant something to him, in the last anal- United States Attorneys to talk to him every litigator's dream is the triad of an ysis, was governed by the facts. In that about their appearances in front of him interesting and complex case, a masterful vein, he was a master at culling a record once the case was over. Their initial reac- judge, and a skillful opponent. With Jim and combining the product of that search tion of "You can't be serious" amused Doyle as judge in the Western District of with precedent.There was a weakness me because implicit in it was an aura of Wisconsin, we who Were fortunate in my position, he found it, enlarged it unapproachability about Judge Doyle enough to practice here, knew that we masterfully in his opinion, and the case which was just plain wrong. The Assis- always began with a third of that triad as was lost. tants, after building up their courage, a given. How lucky we were! He was a I subsequently appeared before Judge would see him and perhaps an hour later giant of a judge and a giant of a human Doyle on numerous occasions while would return with comments such as being and we will miss him. representing the Government. While my "I just learned more about trial practice 12

Remarks by Atty. John Greene, who wondered what the Judge did with inmates pro bono. Such was the inner the motions "under advisement," I can soul of James Doyle, and such is the Legal Action of Wisconsin say that from the beginning of the day to picture of him that I will carry always. the end he would twist and turn prob- The Judge's great gift to the legal I had the great fortune of spending one lems in his mind, examining them from world was to demonstrate that a court is year at the elbow of a most remarkable all sides and creating his own conceptual a place where grace, dignity, compassion, human being, Judge James Doyle. From context. A major part of his job was to and high intellect could unfailingly pre- my law clerk's perch inside the Judge's make law clerks feel inadequate by vail. In the world of mortals in which we chambers, I offer a few observations of demolishing and recreating within min- travel most of the time, perpetual frustra- the Judge, as pitifully inadequate as mere utes what had taken days or weeks to tion is the natural result of the Judge's words are in such an endeavor. accomplish. Without fail the Judge'S anal- demonstration. Yet as he always tried to Tome Judge Doyle was and always ysis was more creative, more insightful, transform negative into positive, the will be a man of mystery and contradic- and accomplished in much less time. Judge would have us strive to erase our tion: a consummate lawyer and legal When he had completed his delibera- discontent by elevating our standards, by scholar, yet utterly lacking in the arro- tions, the Judge would march impatiently always reaching for the higher path, by gance and self-importance which so often to his writing table where he would stand not sacrificing our values for unworthy are appendages to superior traits; a mas- and with great gusto and precision pour short-term ends. Tohave inspired some- ter politician, yet without the capacity for out his inventive, smooth prose. thing good that otherwise would not have guile and self-promotion; physically frail, Every attorney and litigant in Judge been would have given Judge Doyle his in his last years, yet possessed of granite Doyle's court was treated with great highest pleasure. strength. And he was a magnificent judge respect. The Judge was acutely sensitive Apart from his attributes as a Judge, in all respects, marvelous to behold in to the unequal distribution of power in however, what really defined James the courtroom, yet his character was non society, and was loath to perpetuate that Doyle were his intangible personal qual- judgmental to the core. inequality in his courtroom. Thus the ities-his genuine love of others, his On the bench, Judge Doyle was a Judge went to great lengths to give per- unflagging kindness and generosity, his straight arrow, unbending and undaunted sons, particularly unrepresented ones, sharp wit and warm humor, his absolute in his pursuit of the right decision. He the chance to speak their mind. The devotion to open inquiry and honest never flinched when faced with tough patient and careful attention which he answers, his compassion for persons decisions, and he never hesitated to lavished upon even the most exasperat- scorned by society, his genuine modesty, apply the rule of law. Those who prac- ing, unpolished, pro se litigants reflected and his simple lifestyle and indifference ticed in his court know well his insis- the fact that Judge Doyle's federal court to the trappings of wealth and luxury. tence on adherence to the rules of proce- belonged as much to the poor, ordinary Those around him could not escape the dure, and his intolerance of sloppy citizen as to the wealthiest and most spell cast by his qualities, and he in turn thinking and careless practice. The many well-heeled. could not escape the universal admira- lucky enough to practice before him also No case or legal question was too tion and love for him that exuded from know well the excitement and rigors of minor or mundane to engage the full, those whose lives had intersected his- the Doyle School of Law, which con- attention of the Judge. He approached from former law clerks, from attorneys, vened in the federal courthouse. every decision with intellectual freshness from the courthouse staff, from friends. While many lawyers and litigants and open-mindedness, and in his I hold out little hope of ever meeting were able to observe Judge Doyle in his approach he did not distinguish between another Judge Doyle. Although I look for courtroom, perhaps what a former law the important and the unimportant, the him in every courtroom and on every clerk can best offer is a view of the Judge sexy and the routine, the momentous and corner, I am resigned to the futility of from behind the bench. I must report the trivial. During my period with the my search. Yetthe Judge would not be that his fabled courtroom demeanor and Judge, however, there were some cases pleased with such a negative perspective. approach to cases were not ruses to con- which he considered so deserving of the The eternal optimist, the Judge would ceal his true persona; he was consistent utmost care that he shielded them from want us all to strive for the better, to through and through in his public and any tampering by law clerks. These were think of the brighter side, to struggle to private faces. pro se prisoner cases. To me there is create in ourselves what we admire in Judge Doyle savored the intellectual nothing more telling about the judge's others. challenge of judging, and he had a great compassion for the powerless in society Judge Doyle left a legacy far more gift of analysis. He would spend long than in his agonizing over lawsuits important than his legal decisions, a leg- hours mentally dissecting and recon- brought by inmates and other pro se acy found in the lives of all those he structing conceptual problems, and he plaintiffs. touched and who inexorably came under relished his contemplative tasks. The I once asked Judge Doyle what he his spell. It is to the great fortune of the Judge'S agile mind and his mental creativ- would most like to be doing if he were legal profession that James Doyle brought ity were astounding, not to mention his not on the bench. I will never forget the his extraordinary intellectual gifts and remarkable memory (which despite the Judge'S response-so poignant and reveal- wisdom to bear on the legal issues fact that it had been used over forty years ing. After a deep sigh and his usual brought before him. It is, too, the undy- longer than mine, was in much better reflective pause, he replied that he ing benefit of us all that he graced our working order). For all those attorneys thought he would like to represent lives with his magical human qualities. 13

The Northwest Ordinance: Fundamental law or Trivial Pursuit? By Professor Gordon B. Baldwin

On July 13th we observed the 200th Anniversary of the Northwest Ordinance, the last significant work of the expiring Continental Congress in New York.It predates the Constitution by two months, but we don't celebrate it with fireworks as we did for the Statute of Liberty, or with the hoopla that at Disneyland began the Constitution's bicentennial. But we should pay tribute, because the Ordi- nance, I submit, was an indispensable precondition to the success of the Con- stitutional Convention in Philadelphia. Without the assurance it guaranteed that more states would, in due course, join the union, and that they would dilute the influence of such big states as Virginia, the small states would not have agreed to the federal union. Three vital forces converged to pro- duce the Northwest Ordinance: high minded idealism, pragmatism, and greed. The authors of the Ordinance, and the minds behind it, included idealists such as Jefferson, honest but aggressive lobby- ists like Mannaseh Cutler, politicians with a gift for writing turgid prose like Nathan Dane, and greedy knaves such as William Blount. These remarks focus on of its first three sentences are more than descendants of a deceased child in equal those forces and upon the people repre- 170words long. parts, the descendants of a deceased senting them. Who but lawyers would frame a new child or grandchild, to take a share of The Continental Congress with its government by starting with the words, their deceased parent in equal parts power to dispose of lands was a magnet "be it ordained by the authority aforesaid among them ... ." for rapscallions-hot Philadelphia offered that there shall be appointed from time And so the first substantive part of the them very little. Hence although there to time by Congress a governor... ."? Northwest Ordinance of 1787 starts with were some overlaps with delegates in They didn't teach legal writing in those the rules of intestate succession. There Philadelphia acting also as state repre- days. follows, in this dense opening paragraph, sentatives in New York, the knaves and In contrast to the turgid Ordinance, directions preserving the law of dower, pharisees mostly collected in New York the language of the Constitution reflects a rudimentary law of wills, and finally while perhaps the most competent col- the style and grace of Gouverneur rules for conveying real and personal lection of living Americans gathered in Morris, Chair of the Committee of Style. property. Philadelphia. Much in final draft of the Constitution "First things first." What one places The good, the bad and the indifferent was written by that brilliant but notori- first tells us something about the placer. politician-drafters of the Ordinance ous rake. How many great writers were Who else but lawyers would put the rules shared a common quality-they were ter- philanderers! of intestate succession and the law of rible writers. Primary blame for the Ordi- The Ordinance's stolid prose at the wills in the vanguard of a document nance's style and prose must be placed beginning deals with an apparently charting the course for new governments, on Nathan Dane, for whom Dane county dreary subject: "Be it ordained ... that and who else but landowners, or poten- is named. But there is too much crabbed, the estates of both resident and non-resi- tiallandowners, would reveal concern inverted and obscure writing to blame on dent proprietors in the said territory, about rights to sell and convey property. a single mind. The Ordinance's phrasing dying intestate, shall descend to and be Idealism, pragmatism and self-interest reflects the worst of our profession. 'IWo distributed among their children, and the are revealed in these initial provisions 14

relating to intestate succession, and What is in the Ordinance that inspires on those vast, unexplored but Indian authorizing bequests and transfers by such hyperbole, and is it justified? Cer- occupied lands should form a free society will. Idealism and equality are revealed tainly not the law of wills and of intestate linked to the 13 states by articles of com- in treating male and female children succession. The chief merit is that the pact. The new territories would, in his equally, and by failing to give any special Ordinance succeeded where previous view, become new states equal in law to rights to the first born child. Fairness is efforts to establish a legal regime in the the old. Jefferson also urged that slavery exemplified by the Ordinance's recogni- northwest failed. Those failures were be forbidden, but that idea was quickly tion that French and Canadian settlers spectacular and fully understood by all put aside. could retain their own laws and cus- Americans. Only a bare outline of Jefferson's ideas toms relating to rights of conveyance Failure begins with the French. France survived the sporadic debates between and descent. sent missionaries, explorers and fur trad- 1784 and 1787. The idea of a multiplicity By focusing first on the right to con- of new western states was viewed suspi- vey property, inter vivos or by will, the ciously by the North, largely because Ordinance's framers promoted the self they feared that Southern interests would interest of those representatives with dominate them, and that the settlers western land claims, and also the inter- would either fight Spain, or demand con- ests for which Dr. Mannaseh Cutler lob- Three vital forces converged to cessions from her. Spain controlled the bied. Mannaseh Cutler is an appealing produce the Northwest Ordinance: Mississippi, and showed no signs of giv- figure. In the Revolution he served as an ing up that valuable monopoly. New Eng- Army chaplain. Later he read law, and high minded idealism, pragmatism, land wanted concessions from Spain too, learned enough medicine to practice that and greed. the right to trade freely with its colonies too. He was also an accomplished bota- in Latin and South America. Northerners nist; he talked shop with Benjamin rightly feared that western settlers would Franklin, whom he met in Philadelphia. give up free trade interests in return for He was in New York and Philadelphia in ers, but no settlers in large numbers. The navigational rights on the Mississippi. So, 1787because he was a lobbyist-perhaps Paris government never supported large it looked better to discourage settlements. the first successful one in our history. migration to America. "Why do you wish It took several years for the knaves to Several of Cutler's fellow lobbyists were to depopulate France," scolded Colbert, realize that a legal regime for the North- rapscallions. Cutler went back and forth chief minister to Louis XIV,in response west would produce an incentive for set- between New York and Philadelphia for a plea to promote settlement. Colbert tlement, and that settlers would buy land revealing his concern with the immediate was wise, but not enough to appreciate retail from those smart enough, or pow- in New York, and with the future plans that world history would indeed be dif- erful enough, to get title wholesale. Land, of the nation being debated in Philadel- ferent had French settlers poured into the they eventually realized, offered better phia. Cutler was among several people Mississippi valley as did British settlers promise of profit than trade by sea. Wil- who helped New York and Philadelphia onto the Atlantic coast. liam Blount was one of the greedy. politicians understand each other. William Blount's notoriety lies less Cutler represented the Ohio Company, Victorious Britain took over French in the fact that he was a boorish, unedu- which was organized in New England, Canada in 1763 and they also discouraged cated, and successful rascal, than in his and he was instrumental in that compa- settlement, but with better reasons. The being the first person expelled from the ny's purchase of large tracts of Ohio land American colonists were a rough, hardy United States Senate, and the first ever from New York, Massachusetts and Con- and prolific breed moving foolishly close impeached by the House of Representa- necticut. The Ordinance legitimized some to Indian settlements. Naturally Indians tives. His father was wealthy, but didn't of those cloudy claims, and set the stage and settlers fought, and the brutality of press much formal education on his eld- for future purchases. Soon after Cutler those wars matches anything we've expe- est son. The Blount family's abiding persuaded the Congress to confirm the rienced in the 20th century. Many white interest was making money. William Ohio Company's title to 5,000,000 acres men inflicted cruelties on the red men as Blount's indifference as to means was for a few cents an acre. The Ordinance savage as anything the Indians had done matched only by his success. He could made that land marketable. The national to them. The British solution to the resist anything except temptation. He government would make a modest profit Indian conflicts was in 1774 to extend owned mills, forges, ships and planta- and the speculative land companies the boundaries of Quebec into the Ohio tions, but it was in western lands that might make a lot more. Tobuy land lands, and most irritating to the colonists he saw the most promise. He owned mil- wholesale, and sell it retail was the trick, to forbid settlement. It would have been lions of acres when he died, young at 51, and the land beyond the Ohio River, if it easier to stop the tides! This foolhardy although a good deal of his land claims could be pacified, promised vast profits. prohibition is mentioned in the Declara- rested on forged or false deeds. The Ordinance like the Constitution, tion of Independence and was among the William Blount is a sleazy and alto- inspires overblown praise. Given its causes of our Revolution. gether unappealing figure. At the end of opening, and its origin, Daniel Webster's After 1783 the promise of rich lands, the American Revolution he promoted statement that no law in world history which could be used to raise revenues, piracy against British merchants who had produced effects "more distinct, marked and payoff the Continental Army, in- some claims of safe passage back across and lasting" than the 1787 Ordinance spired new effort to agree upon some the seas. During 1787 he acquired more sounds absurd. Likewise inflated is the legal regime for the wilderness. than 100,000 acres of western land by claim Senator George Hoar of Massachu- Ancestry of the Ordinance, but not its inventing dummy purchasers. Any land setts made 100years ago that the Ordi- language, is traceable to the imagination title traceable to William Blount is surely nance ranked with the Constitution and and foresight of Thomas Jefferson who weak. All in all William Blount was a liar, the Declaration of Independence as one in 1784framed what we may consider a cheater and a thief. of the three "title deeds of American con- the first draft. It was Jefferson who con- Blount was 38 in 1787and serving as stitutionalliberty.' ' ceived the idea that the settlers to come one of North Carolina's representatives 15

in the Continental Congress in New York. Blount's group present it's entirely likely plied a natural and convenient model for Blount's chief interest, after being frus- the Constitutional Convention would other territories. Thirty-one of the 50 trated in his hope that he'd be elected have foundered on the small state versus states joined the union under the princi- President of the Congress, was in buying large state acrimony. ples of the Northwest Ordinance. and selling tobacco, the value of which Why did Blount so hurriedly return to The Ordinance has two parts. Part I was enhanced by Virginia's willingness New York?A short note from the secre- establishes the interim ruIes for that vast to accept tobacco in payment of taxes. tary of the Continental Congress told him mostly unexplored land. With the excep- He also sought much more land. But he that he, and his Georgia friends were tion of the property rules the document was distracted by a call for duty, which needed in New York to make a quorum. is procedural. It tells us how the land uncharacteristically he answered. If a quorum could be gathered, an ordi- shall be governed in the beginning, and North Carolina needed another hand nance authorizing disposition might how, "five thousand free male inhabit- at the Philadelphia Convention and make the lands of the northwest available ants of full age" can elect representatives Blount's younger brother, John, also an for quick sale. Blount realized his to a territorial assembly. Like the contem- affluent merchant and entrepreneur, rec- poraneous Constitution, the Ordinance is ommended him to the friendly Governor largely a procedural document telling us of North Carolina. It wouldn't cost much how, and when, the settlers can create a to give double duty to the delegates in new local government. The Ordinance New York, so Blount, whose ambitions promotes colonization, but not colonial- to become President of the Continental Thirty-one of the 50 states joined ism, for it tells us how, in due course, the Congress were thwarted, willingly set off the union under the principles of settlements may become states on an for Philadelphia. equal footing with the original 13. Blount arrived at the Constitutional the Northwest Ordinance. The "equal footing" doctrine that all Convention in mid June, and promptly states must be treated equally has roots breached the pledge of secrecy by writing in the Ordinance as it has in the Constitu- a North Carolina friend and describing in tion itself. It is remarkable that newcom- detail the Randolph/Madison plans for a personal interests would be immediately ers to the union enjoy the same rights as federal union. He never said a public served. The land speculators were getting those in the original parts of the nation. word in Philadelphia, but his vote impatient. They wanted the Northwest Part II of the Ordinance consists of the was vital. Ordinance passed quickly. They sum- "Articles of Compact" between the "orig- Blount's legacy to us lies not in what moned Blount, Few, Pierce and Hawkins. inal states and the people and states" in he bought, or in what he said-evidently They came, voted and prospered. the northwest. This part of the ordinance he said not a word at the Constitutional They had other immediate interests. is substantive law. The compact binds the Convention. Blount's importance was in The Continental Congress might, they new states, and in form and substance it where he was at a critical time in July prayed, supply aid to the settlers in Ten- constitutes more formidable limits on 1787-he was not at Philadelphia where nessee who were hard pressed by Indi- government than were supplied by the he was a delegate, but in New York pro- ans. The Congress might also be per- XIVth Amendment eighty years later. moting the Ordinance. We are fortunate suaded to obtain navigation rights on Part II, the Articles of Compact, makes in his choice. the Mississippi from Spain. the Ordinance enduring. The contents of The Convention at this time was Congress had toyed with the Ordi- the Compact explain why for years it was deadlocked on the question whether the nance for nearly three years, but there periodically republished in the biennial Senate would reflect population, that is was no agreed upon text. What it ap- collection of Wisconsin Statutes. The be proportional or whether it's member- proved on July 13th was a hurriedly pre- Articles of Compact are superior to state ship would be equal. The small states pared final draft, a condition that doubt- laws and state constitutions. They reflect insisted on equal representation, the less contributed to its graceless prose. modern values despite their graceless large ones, including North Carolina, The Ordinance allowed the United form. The 6 Articles concern religion, demanded proportional representation. States to become the most successful col- the protection of civil liberties, Indians, Each state voted as a unit: if a state's onizing nation in all history. The Ordi- taxes, navigable waters; new states, and delegates were tied, the state's vote was nance promoted colonization without slavery. It is these provisions that give not counted. The Georgia delegation nar- the promise of long colonial rule. As soon the Ordinance permanent value. rowly favored proportional representa- as enough people congregated an area The clause calling for freedom of reli- tion in the Senate, but at a critical time would become a state, but only after gion supplies an instructive contrast to two Georgia representatives favoring pro- defeating the Indians in battle. It was the first amendment. It has no establish- portionality left town. This left the Geor- military victories, not a statute, that per- ment clause, the source of our greatest gia vote divided, and hence null. The mitted settlement. The first victory was difficulty in accommodating religion and Convention was equally divided, and in in 1795 when the Indians, defeated by government. It simply states that: "no effect the large states lost their battle for Mad Anthony Wayne abandoned the person, demeaning himself in a peace- proportionality. lower midwest. Then only a few thou- able and orderly manner, shall ever be Blount bears some responsibility for sand people inhabited the Territory. molested on account of his mode of wor- the Georgia split. He and his two Georgia Eighty five years later there were more ship or religious sentiments." Instead of a colleagues who favored proportionality than eleven million, and nearly half of clause like the Establishment Clause, for- might well have changed history by their the total wealth of the nation was held in bidding too much government aid, the votes. But they never voted, instead they the five states formed from the old north- Ordinance actually encourages the teach- hurriedly scurried off to New York. Their west. Military victory was the indispens- ing of religion, and thus accommodates absence saved the day. The Convention able precondition for settlement. The church and state interests in ways that continued; the small states were molli- Ordinance supplied the mechanics for Chief Justice Rehnquist would like to fied, and were willing to make some con- exploiting those victories. promote today! "Religion, morality, and cessions to their larger neighbors. With More important, the Ordinance sup- knowledge being necessary to good gov- 16

ernment and the happiness 'ofmankind, treaties, even ones we now view as The document is littered with ambi- schools and the means of education shall unfair, were encouraged. guity and questions that necessarily had forever by encouraged." Nothing in the It is not, moreover, in any way a to be answered promptly. If draftsman Ordinance forbids teaching religion in model representative government. Its today wrote so sloppily their malpractice the schools. method for choosing the first territorial carrier would surely cancel their policy. At the last minute a clause forbidding government is authoritarian. Congress In the first stage the governor and the slavery was added. This was not simply appoints the governor, for a three year judges, or a majority of them, are em- unselfish idealism, it was self interest as term, a secretary for a four year term, powered to "adopt and publish" such well. Congress had earlier rejected the and a three judge court, the judges to laws of the original states as best suited abolitionist measure, but in 1787half hold office "during good behavior." So for the territory. They presumably can't the Continental Congress was from the littered among the miasmic prose are make new laws, they merely can import south, and southerners feared that new the roots of an independent judiciary. laws already existing on the seaboard. states might compete with them in grow- Could a law once adopted for the terri- ing cotton, indigo and tobacco-crops tory be repealed? Could only portions of which slave labor made profitable. Best existing state laws be imported, or must eliminate slavery and eliminate danger- the whole statute, which might include ous competition. So, like the Temperance The document is littered with appeals to the Privy Council in England, Union and the bootleggers in Kansas who be adopted. These unanswered questions march together to the polls to vote dry, ambiguity and questions that simply illustrate the slovenly language of the interests of slave owners and aboli- the Ordinance. tionists converged and they voted to- necessarily had to be answered When the Ordinance says a majority gether to abolish slavery in the new promptly. If draftsman today wrote of the four (Governor plus 3judges) may lands. adopt and publish laws does it mean that The speculators who already had pur- so sloppily their malpractice the three judges can act alone? Is the sig- chased land in the unsettled west were carrier would surely cancel nature of the governor required? In short worried-their titles were by no means the Ordinance is so slovenly written that clear given the bribery, theft, and naked their policy. it is hard to acknowledge it as the prod- force underlying their claims. The Ordi- uct of a committee of lawyers. nance, while not explicitly recognizing But these are in large measure quib- these cloudy titles, did allow claims, bles. What makes the Ordinance great, however shady, to be conveyed and Basically the Ordinance is framed to important, and in some measure endur- bequeathed. promote colonization. In the first stage ing are: Notable, and it was a practical as well of territorial government the inhabitants 1. It settled, albeit imperfectly, com- as an idealistic move, the lands and prop- have no rights to self government. Even peting state claims, and supplied an erties of the Indian inhabitants were rec- in the second stage, reached when 5,000 assurance that the nation would grow ognized. Doubtless the protection of free male inhabitants appear, rights of and the influence of the old seaboard Indian claims was more a pious platitude self government are minimal. The gov- states would be diluted. than a significant limitation on invading ernor still appoints major government 2. It promoted notions of equality- settlers, but it did promote an important officials and has an absolute veto over new settlers and new states would stand value. The settlers, knowing that Indian territorial laws passed by the elected rep- on equal footing with the old. land claims had some legal basis, were resentatives. Substantial property qualifi- 3. It supplied a small, but indelible encouraged to deal with the tribes and cations for voters assured that relatively model upon which self governing territo- make treaties with them. Without the conservative legislators would be chosen. ries could be formed, which would, in Ordinance it would be cheaper to simply One sees in the second stage government the course of human events become fight. In reality the Indians had no real the ideals of a monarchy which a few of states. choice but to fight or make the best deals our early leaders promoted. That the set- It did these jobs awkwardly. Hence they could and move further west-the tlers did not like this part of the Ordi- the Ordinance confirms Lord Chester- Ordinance supplied some incentive to nance is suggested by the first state field's poignant observation, that "any- make treaties, but many Indians fought. constitutions which established male thing worth doing, is worth doing badly." Without the Ordinance, however, fight- suffrage, and which made their gov- The Ordinance is worthy of note, but ing would have been the norm-with it ernors weak. not worthy of being read aloud. 17

On Returning to Legal Education Walter]. Dickey

Introduction I was away from legal education and the law school for nearly four years. During that time and since my return people often commented to me that working in corrections must be strikingly different from the law school. While there are many differences, the distance between the functions of director of the correc- tional system and those of the faculty member is not as great as it might seem. Education has much in common with leadership, particularly with leadership in corrections. Both the leader and educa- tor seek to stimulate and motivate others; both are responsible for taking the long view of issues and events; both should avoid the simply expedient; both are responsible for the standards and values to which others may be held. The mea- sure of the contribution of the educator and leader, at least in part, is the per- formance of others. I became keenly aware that advancing "the art of demo- cratic living" is a vital function of both our university and our correctional system. So, I return to the law school with a fresh perspective and a renewed respect for our mission. Done well, education, public service, and research can playa vital role in our society and make a pro- found difference in the quality of the lives of our citizens. I now adhere to that to relate the way we, in corrections, ment of Health and Social Services to view more strongly than ever. responded to a critically important and develop a thoughtful policy in response As director of the correctional system, controversial problem-AIDS. Doing so to a problem about which there was and I had extensive contact with lawyers, my will enable me to do two things: is much ignorance, contentiousness, and own, Department of Health and Social First, bring to life the qualities which fear. It had to be done quickly, without Services staff, Department of Justice are important in public service, espe- waiting for legislative or judicial action attorneys, state public defenders, judges, cially services performed by lawyers; and or guidance from other public institu- private criminal and civil lawyers, labor Second, look at the qualities we tions, but mindful of the fact that others lawyers, and jailhouse lawyers. I also had should be trying to create in law students in the society should and would have a wide range of experience with people so that they can become effective lawyers something to say about how this problem in governmental agencies, including the after graduation. would be handled in and by institutions Departments of Administration and of government. Happily, the AIDS policy Employment Relations, the legislature The AIDS Experience developed for the Wisconsin prison sys- and the Governor's Office. And, of tem is now a model used by the National course, I worked closely with staff in When I became director of corrections, Institute of Justice for other systems in prisons, probation and parole, juvenile AIDS was receiving no media, govern- this country. services, and observed their work first mental or correctional attention in Wis- We confronted more issues than I can hand. I had frequent contact with the consin. There were no reported cases in list here as we wrestled with this extraor- public and with union leaders. My expe- the state, let alone in the prison system. dinarily difficult problem. How should rience took me all around the state, since Now, AIDS has become a problem of our health services deal with AIDS correctional responsibility is a statewide international concern. There are at least patients? Where should we house them? concern. twenty cases in the prison system, Should nonterminal patients be in the At the risk of stretching an example induding two in terminal stages of the general prison population? Who could we further than I have any right to, I want disease. It was necessary for the Depart- test for the infection under the law? Who 18 should we test? Who should have access could be. The consequences of doing it lem such as AIDS in prisons has medical, to the results of the tests? How could we poorly could be disastrous and possibly legal, security, personnel, treatment, and educate staff and inmates about the dis- fatal. If ever there was a situation call- budget dimensions and calls for expertise ease? Could we succeed in getting staff ing for high standards of performance, in each discipline if a comprehensive pol- and inmates to deal with inmates with this was it. icy is to be developed. It calls for these the infection in the atmosphere that I must admit to some frustration at many perspectives to be reflected in a existed? How could we change the atmo- what I felt were insufficiently high stan- single policy. sphere? How could we protect the AIDS dards in government, among lawyers and It is essential, then, that people know patients? What was our responsibility to staff. I believe that I know excellence how to work together, to share ideas, to staff and inmates who do not have the when I see it; when a problem has been advance and develop solutions, so that infection? Who should be involved in the thoroughly analyzed; when a program the collective effort takes into account development of our AIDS policy? has been thought through, described, all relevant factors and is a product that This brief list of issues helps make implemented, and evaluated in accord- is better for the involvement of all in many of the points I wish to emphasize ance with the highest standards. the group. in this article. Dealing with this problem I also know that given the press of That sounds simple enough. For a required qualities that are essential to business, doing an excellent job is not variety of reasons, however, people's abil- responsible and effective public service, always possible, though some matters are ities to work together to solve problems including service by lawyers. so important that the extra effort excel- is not what it should be. In part, the fault lence requires is called for. I also believe lies in our educational system, including (l) Objectivity, Judgment, and Knowledge that if one has the ability to do a very higher education and legal education, of the Law-In-Action good job, though not the time, it raises which put little emphasis on collective the level of everything we do, much of efforts. There are other explanations, Administrators are called upon to which must be short of excellence. including a lack of leadership in gov- exercise judgment constantly. The devel- While we may excuse less than excel- ernment agencies, a bureaucracy that opment of the correctional AIDS policy lent work on the grounds that there is not encourages looking out for one's turf, a was certainly no exception. We needed enough time; that there are too many general lack of trust within agencies and to determine whether to test all inmates other issues to address; or that this prob- among them, and a system that stresses admitted to the correctional system, as lem is not so important that it should too many checks and balances and toe lit- some states are doing. Toanswer the take too much time, I do not believe that tle working together to solve problems. question, it was necessary to know this fully explains why standards are not People can learn to work together by whether legal authority existed to do it, higher. working together. The results are better how useful the information would be, Indeed, I think that most of these are products and more learning than comes whether high risk inmates could be coun- not explanations, but excuses. A most from people working alone. Two heads seled into being tested, and what effect important reason is that people do not working together are better than one. such a policy would have on attitudes know excellence, have not had it consis- toward AIDS and our planned educa- tently demanded of them or demonstra- tional efforts. This issue has multiple ted to them. In short, the rigor that (4) Confidence and Determination dimensions, including legal ones, and a brings excellence has been lacking in competent lawyer's objective advice is Given the complexity of problems like their education and professional experi- most helpful. The lawyer or other public AIDS that confront government and its ence. The result is work that lacks the servant who brings objectivity to prob- sometimes ponderous methods of deci- clarity and precision that ought to be lems such as this and who understands sionmaking, it is tempting to throw one's required. the many factors that go into a decision hands up, to be discouraged, to discour- If I sound overly critical, let me point are invaluable, in part because large age others, and to say "to hell with it!" out what I am not saying. I am not saying bureaucracies, by their very nature, limit The fact is, however, that even if all prob- that people are poorly motivated or that staff vision to single dimensions and lems cannot be solved, we can improve they do not care whether their work is often thereby limit objectivity. It is essen- upon most situations, develop and choose good or not. I am not saying that they do tial that the advice not be colored by the best of what may be disappointing not put substantial effort into what they what the lawyer wants to happen, but is alternatives, and generally advance the do, that they do not try hard to do well. based on the objective judgment as to mission of the agency (or client) through On the contrary, my overall impression what the law requires and what is likely thoughtful responses to problems. Most of staff in government is that they are to happen. problems do present opportunities if we extremely well motivated and put a good The advice is usually better if the law- have the patience and vision required to deal of effort into what they do. yer understands the factual setting in find them. What I am saying is that had they which the decision will be made, that the To achieve this requires the confidence been exposed to and immersed in experi- legal dimension is only one aspect of the that issues can be resolved satisfactorily ences that truly pushed them, that taught problem and that it may not dictate by careful attention to them and the them what a good job is and how to do it, which course to follow. Insight into how determination to do so. In my experience the standard of everything they did legal policy is apt to be implemented is in corrections, what often brought satis- would be raised. also crucial to the exercise of sound judg- factory solutions to problems was persist- ment and such insight itself requires ence born of confidence, the belief that the problem could be solved, and the good judgment. (3) Working With Others willingness to try multiple ideas and (2) High Standards Given the complex nature of problems approaches until the best one was government is called upon to solve and discovered. It was obviously important that the the complexity of government itself, effec- The people, including lawyers, who AIDS policy be developed as well as it tive effort is often collective effort. A prob- consistently performed well were those 19 with the confidence and determination to tives. This is not a quality that is easy to clear. I also observed what, in my opin- solve problems. develop or maintain in a correctional sys- ion, was overreaching by other branches, tem, particularly because some of the including the legislature and judiciary, {S} The Ability to Deal With Change people the administrator must be con- into the domain of others. I do not cerned about have behaved as destruc- believe there is anything extraordinary The AIDS problem is a clear example tively as convicted offenders some- about this, but I do believe it sometimes of change in the world and the need for times have. frustrated the implementation of public the world to cope with it. While it is also The problem is complicated when the policy. Neither the legislature nor the dramatic, I do not think it is atypical. public servant does not identify with or courts can manage administrative agen- AIDS certainly required the correc- is otherwise not close to those about cies and to announce policy based on the tional system to change its method of whom he is to be concerned. The dis- false assumption that it is possible to do doing business. But so did increased pop- tance between offenders and correctional so in any systematic way only leads to ulations in prisons and on probation and staff is great, and I fear, growing. I be- the distortion of that policy in practice. parole, increasingly large numbers of lieve it is the duty of both correctional Nor should administrative agencies uneducated offenders, more dangerous administrators and educators to create intrude into the domain of the legislature offenders, and a climate in which the opportunities for public servants to or judiciary. A better understanding by public was determined to "get tough" understand those whom they serve. From all of their responsibilities and possibili- on crime. exposure to and understanding of those ties would have led to more effective I was continually struck by how per- we serve comes the commitment to peo- creation and implementation of public vasive change was, how often situations ple that distinguishes the excellent public policy. I say this recognizing that such that appeared similar to others were dif- servants. "intrusions" are often the result of the ferent, how important flexibility and the "intruded upon" branch failing to do its capacity to apply knowledge to new situ- {S} Understanding the Functions of the job properly. ations was. The effective staff member Three Branches of Government In a A better understanding of how admin- was not satisfied with the easy answer, Free Society istrative agencies operate by all branches but possessed the intellectual curiosity to including itself, would also make for look further at the problem and to tailor I often heard from judges, legislators, more effective and efficient policy imple- the solution to what was unique about it. and the press their frustration with the mentation. Lack of understanding when operation of the correctional system. combined with our proclivity for checks {6} The Work Ethic Many correctional staff expressed frustra- and balances and the lack of trust this tion, a frustration I sometimes shared, breeds creates bureaucracy that is sti- The staff, including lawyers, who per- with the actions of judges, legislators, formed well were usually the hardest fling, uncreative, and sometimes and the press that affected correctional paralyzed. workers. They had the interest and abil- policy and its implementation. It is one ity to immerse themselves in an issue, This is true primarily with respect to thing, however, to be concerned that a budget and personnel matters, which such as AIDS, and pursue solutions that judge did not fully understand the impli- were developed through great effort. have considerable effect upon substan- cations of a decision on, say, inmate dis- tive policy. It is unfortunate that the solu- They had, what I took to calling, the cipline, and quite another to believe work ethic. tion to too many problems, particularly if inmate discipline is none of the court's it is in another branch of government, is But there is more to the quality I am business. The first view is a reflection of trying to describe than the ability to work more process, more review, more checks the limits on effective advocacy in a par- on the system. hard. Underlying the capacity for hard ticular case, difference in perspective, work was usually a well-developed sense Of course, how much process is desir- judgment, emphasis, or values. The sec- able is a matter of opinion and degree, that there was a direct relationship ond view reflects a fundamental mis- between effort and achievement. This but in government today it is excessive. understanding of our system of The consequences are serious. The lesson, simple to state and important to government. learn, seems basic to most high quality emphasis on process deflects concern As I often told my staff in corrections, from the substantive; it is difficult jobs. I thought a good deal about what our challenge was to run an effective cor- values to impart to staff and inmates and enough to keep staff focused on sub- rectional system in a free society. stance without creating a system so this is one with which I was most com- By this I meant that we live in a soci- fortable: that effort brings achievement. emphasizing process that people are ety in which authority and responsibility more attentive to whether they have is shared, in which formal and informal {7} Concern for People jumped through all the hoops than to checks exist to insure that the system whether they have achieved a meaning- An important and constant challenge operates in accordance with our form ful substantive result. that every administrator faces is keeping of government, and in which there is a the agency focused on the people it responsibility to be open about what is serves. This seems true in all large going on. This is the challenge even Summary of Qualities I Believe bureaucracies, whether they are correc- when that very openness apparently Necessary To Be Effective as A Lawyer impedes one's ability to fulfill other tional systems, universities, or other To summarize, what separated the effec- responsibility. As I often told our staff, it branches of government. tive public servants, especially lawyers, The most effective public servants, would have been easier to run the prison system in the USSR,but much more from the ineffective were the following including lawyers, at advancing the sub- qualities. costly in almost every important way. stantive vision of the corrections system, Those who were effective: were those who cared about people. But I, by no means, believe that inade- They were the most likely to identify and quate understanding of our form of gov- (1)Were objective, possessed knowledge attend to the human dimension of prob- ernment is limited to those in adminis- of how law and policy worked in action lems, including the AIDS problem, and trative agencies. To be sure, the lines and exercised sound judgment; not become mired in bureaucratic objec- between the branches are not always 20

(2) Had high standards, an appreciation endeavor, to advance the educational ects, particularly in the second and third of what a good job is; objectives I believe are significant. I do year. These experiences should empha- not pretend to know the educational or size the production of a high quality writ- (3)Worked well with others to solve vocational aspirations of law students. I ten product, usually if not always, pro- problems; worry, though, that what I see and hear duced and improved through several (4)Approached issues with the confi- suggests that they do not necessarily seek revisions. This will do much for the stu- dence that they could be satisfactorily all that law school can provide and they dent, including raise their standards and resolved and with the determination to need if they are to be effective. demonstrate what effort can achieve. It do so; Finally, as I return to legal education should also help develop their confi- with a new perspective, I have been ask- dence. (5) Could apply their ability and knowl- ing myself how I as a faculty member (3)Students should be required to edge to new situations, could, in short, and we as a law school could provide undertake projects in small groups that deal with change; better legal education. Are our present make them work together to examine a problem and propose a solution. The (6)Worked hard and expected achieve- methods likely to encourage students to ment to follow effort; seek to develop the qualities I outline result should be a single work product here? Do we as a law faculty believe that is the result of collective efforts. An (7) Cared about people and how what them to be important? Do we strive to obvious objective is learning how to work they did affected people; develop them? Does their achievement collectively. call for any different approach by the (4)While the study of legal doctrine (8) Understood the roles and responsibili- faculty? is certainly important, emphasis should ties of the three branches of government Based on my recent experience I also be given to the study of the law-in- and that they operate in a free society. believe there are several important prin- action. Knowledge of how the legal sys- ciples that deserve emphasis in our cur- tem operates, of the interplay of institu- Implications for Legal Education riculum and teaching methods. These tions and influences that go into the principles are responsive to the need for creation and implementation of policy, It hardly needs emphasis that legal edu- the qualities I have described. I hope is essential for law trained graduates. cator and lawyers ought to be concerned brief mention of this less than compre- (5)Students should be exposed, under about the qualities which distinguish the hensive list of principles for legal edu- careful supervision, to experiences that most effective lawyers. I was prompted cation (some of which we at Wisconsin bring them into contact with people, the to write to share whatever insight I implement well) stimulates thought on clients of lawyers and the legal system, gained in my four years in corrections. the subject. so they can begin to understand the The comments which follow, then, (1)As things now stand, jobs and job human dimensions of the problems with are prompted by my observations of this seeking divert substantial student energy which they deal. This should require the wide range of people, many of whom from legal education, to the detriment of student to consider the people for whom were trained in law, and the qualities legal education. This is often done with they work, assist in the development of which distinguished the very effective the blessing of the law school. The pri- judgment, and apply knowledge to a vari- from those who were less so. mary, if not only, concern of the law ety of different situations. What also prompts my writing is the school with respect to students ought This is by no means a comprehensive situation of law students today. If we are to be education and their professional list of either the qualities effective law- to further the education of our law stu- development. If this were so, and if yers need or the principles that should be dents, we need a sense of their values greater educational demands were placed the basis for legal education. It is, based and aspirations. I have been listening on students, they would be much more on my recent experience in government carefully to the students in my classes likely to be immersed in legal education. in Wisconsin, an outline of the qualities to determine what is important to them; This itself would lay the foundation for that made the most difference in the to discover whether they are seeking to many educational benefits for students world in which I worked as a public develop the qualities I consider important for ultimate success in employment. . servant and sometimes as a client in our law graduates; to gain a sense of (2)Legal education should require in- of lawyers. how equipped the law school is, as a total tensive, closely supervised writing proj- 21

Alumni Notes

Northwestern Law School Prof. David Dr. Eugene E. Welch ('50) has retired Joseph M. Troy ('80) has been elected Ruder ('57), who served that school as as a Professor of Law and Director of the Circuit Judge for Outagamie County. Mr. dean from 1977to 1985,has been nomi- Criminal Justice Degree Program at the Troy former practiced with the Herrling, nated as Chairman of the Securities University of Georgia. Dr. Welch had Clark firm in Appleton, WI. Exchange Commission. Prof. Ruder was previously retired as a Colonel in the US John A. Franke ('76) has been elected Editor-in-Chief of the Wisconsin Law Air Force. Circuit Judge for Milwaukee County. Review and began his career with Leonard L. Loeb (,52)was recently Mr. Franke had been an Assistant US Quarles & Brady in Milwaukee, elected President-elect of the Milwaukee Attorney. Wisconsin. Bar Association. Donald R. Stone ('63) has become a Daniel W. Stolper ('76) has become a John E. Walsh ('75) has been elected shareholder in the Washington, DC firm partner in the Madison, Wisconsin firm President-elect of the State Bar of Wis- of Burditt, Bowles & Radzius, concentrat- of Stafford, Rosenbaum, Rieser & Han- consin. ing on food, drug and health care law. sen. Mr. Stolper was formerly an Assis- Todd J. Michell ('68) has been elected Tomas M. Russell ('67), a past presi- tant Professor of Business Administration President and Director of the Milwaukee dent of the Wisconsin Law Alumni Asso- at UW-Green Bay. Estate Counselors Forum. The Forum is ciation, has joined Hopkins & Sutter, Robert E. Holtz ('85) has joined the a professional organization of attorneys, Chicago, as a partner. Milwaukee, Wisconsin firm of Meissner accountants, certified life underwriters, ThomasG. Barkin ('74) has been & Tierney. trust officers and financial planners who appointed Assistant Commissioner of Peter K. Trzyna ('831 has become specialize in estate planning. the Proceedings Division, Public Utility associated with the Washington, DC Peter J. Hildebrand ('74) has become Commission of Oregon. The Division is office of Cadwalader, Wickersham & Assistant Vice President of Great Ameri- responsible for contested cases and rule- Taft to establish a patent and intellectual can Insurance Companies in Cincinnati. making hearings before the Commission. property group. He will head their casualty operation and Debra S. Katz ('84) and Lynne Berna- Richard J. Byron ('64) has been supervise nationwide litigation. bei have opened the firm of Bernabei & named vice president, associate general Richard Baumann ('64) was elected Katz, Washington, DC. The firm special- counsel and secretary of the Wausau to a three year term on the Board of Gov- izes in employment discrimination, civil Insurance Companies. He joined the ernors of the Commercial law League of rights and civil liberties, and consumer company in 1970 as an attorney. America. League members are experts in protection litigation. John C. Oestreicher ('63), formerly a the field of credit and finance. Mr. Bau- member of the Wisconsin Public Service mann practices in Los Angeles. Commission and chairman of the Wis- Robert M. Simmons ('73) has ac- consin Hospital Rate-Setting Commission cepted the position of Regional Attorney has become associated with the Madison, for the US Department of Agriculture in Wisconsin firm of Wheeler, Van Sickle & San Francisco, CA. Anderson. Steven A. Felsenthal ('74), formerly James T. Rogers ('66J has been Chief Staff Attorney for the Fifth Circuit elected as President-elect of the Wiscon- Court of Appeals, has been nominated as sin Association of Criminal Defense a Bankruptcy Judge in Dallas, TX. Lawyers. Peter M. Weil ('74) has been elected Mark A. Nordenberg ('73) has been President of the Century City Bar Associ- appointed Dean of the University of ation in Los Angeles. Mr. Weil is also a Pittsburgh School of Law. Nordenberg member of the Board of Visitors of this joined Pitt's faculty in 1977and has Law School. been serving as interim dean since November 1985. Paul R. Jaessing ('81)has been appointed as state counsel for the Wis- consin operations of American Title Insurance Company. Gregory P. Crinion ('85), a member of the Litigation Section of Exxon Co. USA, has recently authored two articles on taxation, one published in the Wiscon- sin International Law Journal and the other in The International Lawyer. 22

Editor's Note

By now you have probably spotted the By the time I began as a student in most recent incantation of our Law 1969 the Gargoyle had become firmly School symbol, the Gargoyle. Yes, now attached to the Law School. When this you too can own a Gargoyle tie! Each tie magazine was founded by Dean Spencer has a field of embroidered Gargoyles Kimball in 1968, he chose The Gargoyle marching across, row after row. But why, as the title and drawings of the little many of you might ask, does this Law beast began appearing not only in the School use such an unusual symbol? magazine, but also on anything else that According to the dictionary, a gargoyle we wanted to identify as belonging to is "a roof spout carved to represent a gro- the School. tesque human or animal figure, and pro- Seventy years at the top of the build- jected from a gutter to carry rainwater ing and a seventy foot fall might be clear of the wall." The term comes from expected to cause some wear and tear, the French "gargouilles," an onomato- but no one seems to remember any visi- poeic for the sound of the rushing water ble signs until very recently. During the from their mouths. It has come to include winter of 1985/86, Madison was graced any ornamental figures at or near the with even more snow that normal. In roof of a building. Some believe that they fact, snow got piled over the top of our were carved to represent those fallen Gargoyle. When it finally thawed (about from the faith, or in our case, those who June 15th!) we discovered that several missed an exam. fist-sized pieces had broken off. Gone On the original Law building, circa were part of the lower jaw and fangs, 1893, four ornamental statues or gar- part of the nose and the tip of one ear. goyles were included at the corners of In an effort to preserve the Gargoyle for the main roof. No one seemed to attach another 90 years, we contracted with a any significance to these gargoyles until, graduate Art student, Kurt Wold, to during demolition of the building in 1961, restore the damage. He pointed that the one (or possibly two) of them fell undam- Gargoyle was also suffering from acid aged as the wrecking ball swung. Dean rain damage, and fine features were George Young, who took great personal beginning to disappear. pride in obtaining the new building, was Dean Thompson, who has witnessed nearby and must have felt that there was the decay of carved facades at Cambridge some significance in this miraculous as a Rhodes Scholar, decided to seek a deliverance and ordered that one of the long term solution. We decided to have a gargoyles be saved. That gargoyle became mold made, and a replica cast. The pro- The Gargoyle, and is displayed today out- cess was most interesting to observe, side the main entrance of the current involving an inch-thick black plastic coat, Law building. followed by several inches of plaster to What became of the other original is stiffen the mold. After the mold was open to speculation. Upon becoming removed, it was reassembled and a building manager, a few years ago, I hydrite copy made. The copy weighs decided to check out the rumor of a sec- about 200 pounds. ond gargoyle. The number of nooks and It is possible that we will make a lim- crannies in this polyglot building is truly ited number of copies available for pur- amazing, but none of them contained the chase, but delivery will not be included rumored second gargoyle. Just recently, and you will have to provide a medical however, I discovered that I may have release. been looking in the wrong place, in the wrong city as a matter of fact. According to Prof. Margo Melli, the second gargoyle was discovered on the ground by a law student, who carried it away. The student she thinks has, or at least had, the gargoyle now lives Texas. Has anyone out their seen a brownstone gargoyle that bears some resemblance to Bucky Badger? 23

Mystery Picture

And now for something completely This issue shows the student lounge different. The mystery picture in the last and has the date "Spring 1971" on the issue received a unique father-daughter back. The original print shows that the response. The picture showed Ellen M. TV is tuned to a baseball game and the Frantz ('80) receiving her law degree clock shows 1:45p.m. Why aren't all from Dean Orrin Helstad. Ellen wrote to these students in class? suggest a "twenty year rule" for these photos, since they make one realize how much time has passed. Ellen also iden- tified David Lange. We also received a letter from Ellen's father, Conrad J. Frantz ('39). The'bld" Law School Ties

Dear Alum: Some schools have their "halls of ivy," some have a school song or a traditional gathering place. We at Wisconsin have the Gargoyle! When I first arrived I wondered about this pleasantly grotesque symbol. What did a weathered old stone orna- ment, fallen from an almost forgotten building, have to do with one of the finest law schools in the country? In the few years I have been here, I have come to not only accept the symbol but to embrace it. It seems appropriate that the excellence of the University of Wis- consin Law School should be repre- sented by our Gargoyle-ancient, yet timeless; mysterious, but our protec- . tive friend. Well, now we can show the world were we are from and what our symbol is. We have created the "old" school tie, a silk blend necktie embroidered with a Gargoyle pattern. On the shield, held by the Gargoyle, is the founding date of the School, 1868. As we approach our 120th Anniver- sary, you, too, can show our Gargoyle to the world.

Cliff F. Thompson Dean

------University of Wisconsin Law School Ties Number Total Men's-Blue @$25 Silk blend ties, available in Cardinal Red or Dark Blue, Men's-Red @$25 in a traditional Men's tie, or a Women's bow tie. Women's-Blue @$25 $25.00, which includes sales tax, postage and handling Women's-Red @$25 Make checks payable to "WLM' and return to: Total $ _ Wisconsin Law Alumni Association University of Wisconsin Law School Madison, WI 53706