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Captain Pabst, the Melms Mansion, and the American Law of Property: a Debate Between Tom Merrill and Richard Posner

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Captain Pabst, the Melms Mansion, and the American Law of Property: a Debate Between Tom Merrill and Richard Posner M A r q u e t t e u n I v e r s I t y l Aw s c h o o l M A g A z I n e s u M M e r 2 0 1 1 Captain Pabst, the Melms Mansion, and the American Law of Property: A Debate Between Tom Merrill and Richard Posner Also InsIde: Grossman on Corporate “Short-Termism” Lubar and Selig Announcements Blog Thoughts from Alumni n A h e D e T Bringing the World to Milwaukee M o R F “Do you really have the Archbishop of Dublin here?” School, uses original historical research to unpack the A Milwaukee lawyer asked me this one recent Wisconsin Supreme Court’s 1899 decision in Melms v. morning in Eckstein Hall. The answer was, “Yes.” Pabst Brewing Co., a staple of American property law Archbishop Diarmuid Martin was in our Appellate and textbooks. His essay will be of interest both to Courtroom, speaking to an international conference those interested in Wisconsin history and to national organized by Marquette Law School’s Restorative legal academics. It also is the occasion for Judge Justice Initiative (RJI). The lawyer was right to be Richard Posner’s return, of sorts, to the Law School. impressed: Archbishop Martin has been a powerful, Posner, who was here a few years ago to deliver our insistent voice for true reform in response to the clergy Nies Lecture in Intellectual Property Law, is back sex-abuse scandal and shame in Ireland. His interest virtually: specifically, in these pages (and those of the in speaking at the conference demonstrates the Law Marquette Law Review) to respond to Merrill’s critique School’s growing reach. of his work. The RJI conference is one of many examples. Even There are many other ways that Marquette Law in its first year, Eckstein Hall has delivered on my bold School brings the world to Milwaukee. Surely this is Dclaim that it would be the best law school building in so with our students. Some 40 percent of them are the country —partly because it has advanced our effort not from Wisconsin. This infusion of talent is to the to help bring the world to Milwaukee. benefit of our region. A similar thing could be said of Another example is this past year’s annual Hallows our faculty, many of whom engage deeply in civic life Lecture, delivered by Aharon Barak, former president upon their arrival here. of the Israel Supreme Court. While there was much To be sure, we can scarcely claim a unique to Justice Barak’s visit, my lasting specific memory responsibility for bringing the world to Milwaukee. is the final question from the floor after the Hallows After all, news organizations, such as the Milwaukee Lecture: Othman Atta, L’94, a local attorney and leader Journal Sentinel, have been performing some of this in the Milwaukee Muslim function for decades. It is thus not happenstance that community, had a polite if within the past half decade we have appointed to pointed exchange with Justice positions at the Law School two of the most respected Barak concerning the Israel broadcast and print journalists in the region. Their Supreme Court’s treatment of collaboration with their peers enabled us to be the Palestinians during Barak’s center for political debate in Wisconsin during last tenure. There was much fall’s election season. else to the visit as well. For We have a correlative interest in bringing Marquette example, it became clearer Law School to the world. Our means include our extra- Columbia’s Prof. Thomas W. Merrill and to me (and no doubt others) ordinary faculty blog, recently noted at volokh.com Marquette’s Dean Joseph D. Kearney in how large the Holocaust as the only law faculty blog with regularly updated eckstein hall before the Boden Lecture looms in the backdrop of content; our website more generally, where one this past fall. Israeli jurisprudence: one can find our lectures and conference proceedings must take account of it no less than one seeking to uploaded almost immediately upon occurrence; and, understand our federal law must appreciate America’s not least, this Marquette Lawyer magazine. I encourage tragic history with slavery and race. you to read it—and to tell me whether you agree with Tom Merrill’s Boden Lecture—which forms the Professor Merrill or Judge Posner. cover story for this magazine—demonstrates how outside perspectives can illuminate. Merrill, who is Joseph D. Kearney the Charles Evans Hughes Professor at Columbia Law Dean and Professor of Law Marquette Lawyer SUMM e R 2 0 1 1 F e atur e S MelMs v. Pabst brewing Co. 8 Melms v. PabstThe BrewingDoctrine of Waste in American Co. Property Law The Doctrine of WasteThomas W.in Merrill* American Property Law Thomas W. MerrillWASTE IN AMERICAN PROPERTY LAW Melms v Pabst Brewing Co., an 1899 decision of the Wisconsin Supreme Court, may be the most important decision ever rendered by an American court concerning the law of waste. And while the doctrine of waste does not loom very large in public consciousness these days, it has held a peculiar fascination for property theorists, for it touches directly on an important line of division in how we think about property. 23 Comment on MerrillDoes property exist primarily onto protect the subjectivethe expectations Law that particular of Waste owners have in particular things? Or is the central function of property to maximize Richard A. Posner the value that society ascribes to particular things? 8 To put it somewhat dramatically, but I think not inaccurately: Is property an individual right or a social institution? Melms involved a mansion on the south side of Milwaukee that was demolished in 1892 by Captain Frederick Pabst, the the brewer of Pabst Brewing Company fame. Pabst owned the surrounding property, and thought that he owned the mansion, too. It turned out that Pabst did not own the mansion in fee simple. Rather, according to another decision of the Wisconsin Supreme Court, handed down four years after the Fmansion A was Cdestroyed, U he held LT it only for Ythe life of anI elderlyn widowSIG named Maria Melms.h TS After Maria’s death, the Melms children would have inherited the mansion, if it still stood. The children sued Pabst, claiming that he had committed waste by destroying the home that was rightfully theirs. 26 In It for the Long haul * Charles Evans Hughes Professor of Law, Columbia Law School. Many thanks to Philip Babler, Andrew Davis, and Tom Kamenickn foradelle exceptional research e assistance.. Grossman, Marquette Law School Melms mansion from Virginia Street looking north courtesy the Milwaukee County Historical Society 10 Spring 2011 30 Will Life Without Parole Follow the Path Mof the Death Penalty? Michael M. o’hear, Marquette Law School 34 Recent Faculty Accomplishments o T h e R I n SIG h TS 36 More Than a Faculty Blog Alumni Colin M. Lancaster, Mary T. Wagner, Donald W. Layden, Jr., Michael D. Cicchini, and Claude L. Kordus 30 44 Ray and Kay eckstein Law Library Legal Research: Building the Skills to Get Good Answers 57 editor: Alan J. Borsuk Production: Jane eddy Casper, Christine Wilczynski-Vogel 2 Message from Dean Kearney Design: Douglas Frohmader, Bringing the World to Milwaukee Andy haas Schneider 4 Marquette Law School news Please send address changes to: Political crossroads, 4 Marquette University Lubar gift, 5 Law School Selig appointment, 5 office of Alumni Relations eckstein hall Senator Feingold, 6 P.o. Box 1881 Alumni awards, 7 Milwaukee, WI 53201-1881 Phone: (414) 288-7090 46 Alumni Class notes Fax: (414) 288-6403 Kimberley Motley, 46 law.marquette.edu Christine M. Wiseman, 48 Copyright 2011 Kurt Dykstra, 51 Marquette University. All rights reserved. Adrian P. Schoone, 54 on the cover: When Captain Frederick Pabst (bottom left) razed the Milwaukee man- sion built by C. T. Melms (upper right) and subsequently occupied by emil Schandein (middle), this late nineteenth-century action set in motion developments in legal doctrine about which scholars continue to disagree. Tom Merrill’s essay begins on p. 8; Richard Posner’s response follows. Illustration by Sean McCabe Marquette Lawyer 3 Marquette law school > Shedding Light on hot Issues MarqUettMe ALawrquette SChooL Shedding Law sLightchool on Hot IssuesNEWS Shedding Light on Hot Issues A Crossroads for Serious Discussion Law. Politics. Education. Policy. Religion. Consumer protection. And, of course, baseball. There were high expectations when Marquette led by Most Rev. Diarmuid Martin, Archbishop of university Law School moved into Eckstein Hall last Dublin, took part in a conference in April 2011 on summer. Most fundamentally, the university’s leaders issues related to sexual misconduct by priests; Prof. promised that Eckstein Hall would be an excellent Janine P. Geske led this effort as part of the Law setting for the study of law—and it is. They also School’s Restorative Justice Initiative. National experts promised that it would be a crossroads for serious joined in the annual public service conference in discussion of major issues faced by the city, region, February 2011 to discuss new regulations in the and points well beyond. The report card for the first financial sector. A panel of leading local educators year shows that this, too, is a promise kept. joined with prominent innovators from Washington In particular, during the past academic year, “On and Los Angeles for a conference last fall on Tthe Issues with Mike Gousha” saw the Law School’s successful ways to educate high-needs children. distinguished fellow in law and public policy moderate Milwaukee County District Attorney John Chisholm debates between the candidates seeking to be one of chose the Law School as the place for a speech on Wisconsin’s u.S.
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