University of Wisconsin Law School Forum

ARGOYLVolume XV Number 1

A New Mirror on the WallDean Cliff F. Thompson

The State of Legal HistoryJames Willard Hurst

The Defender: William CoffeyDoug Moe

Remembering Law SchoolIrving B. Charne

The Law School CampaignDavid G. Utley

Bulletin of the University of WisconsinLaw School, published quarterly.

Spring 1984

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ISSN0148-9623 USPS768-300

The State of Legal HistoryJames Willard Hurst

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Willard Hurst, in more than four decadesas a member of the faculty of the Univer-sity of Wisconsin Law School, achieved atowering reputation for his pioneeringwork in the legal history of the State.

Legal history has, indeed, become inrecent decades an increasingly signifi-cant-and, in fact, a major-element inour continuing search for better under-standing of contemporary economic,social and political institutions. And it isno accident that the rise in the impor-tance of legal history parallels ProfessorHurst's career at the Law School.

joining the faculty in 1937, having justspent a year as law clerk for justice LouisD. Brandeis of the Supreme Court of theUnited States, Willard thereafter madeNineteenth Century Wisconsin his labo-ratory. There he sought the origins ofWisconsin public policy in the broad con-text of the economic, moral, political andsociological forces which shaped theState's laws, forces which in turn were insome measure themselves shaped by thelaws as well. Professor Hurst's own workin the Wisconsin laboratory-his monu-mental study of the white pine industry isillustrative-would, standing by itself,have profoundly influenced the method-ology and content of legal history. But heattracted others to his laboratory as welland they, helped by his guidance and con-structive criticism of their work, madetheir own contributions to understandingof the way in which Wisconsin's legal

institutions took their shape in such fieldsas regulation of insurance and railroads.And these regional models were to guideothers elsewhere to like kinds of inquiriesand, inevitably, critical comparisons.

Through this work, Willard Hurst him-self became an institution at Wisconsin.Or-perhaps more accurately- Willardcan be seen as a major force in shapingthe University of Wisconsin at Madison

into the kind of interdisciplinary institu-tion that it is. And in his wake today arethose who carry forward in the directionshe has charted.

The article reproduced here appearedin Reviews in American History in 1982,shortly after Willard took emeritus statusat the Law School, and is reprinted withthe permission of the johns Hopkins Uni-versity Press, holder of the copyright.

Ed.

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Law has been both a distinctive insti-tution in United States history, and amaterial factor playing on and influ-enced by other factors of that history.Until about the last forty years, how-ever, historians paid relatively littleattention to legal elements in the coun-try's experience, and worked withinonly a narrow conception of the scopeof legal history. The last generationhas witnessed a substantial growth inthe literature, expressing enlargedideas of the socially relevant subjectmatter of the field. The expanded defi-nition ranges more widely over (1)time, (2)place, (3) institutional context,and (4) legal agencies studied. Thefourth dimension of this growthreflects the other three and forms thecore character of legal history as anew-shaped specialty.

Work on legal history in this countrybefore the 1940s tended to a relativelynarrow focus on place. Most studywent into legal activity along theAtlantic seaboard, largely neglectful ofvaried roles of law in the continentalexpansion of the United States. Therewas, of course, a good deal of atten-tion given to federalism, but mostly interms of constitutional doctrine andrelated aspects of politics. Althoughmarked economic and cultural section-alism mingled with the developmentof a national economy and elements ofa national culture, it is only withinrecent years that students of legal his-tory have begun to explore ways inwhich legal doctrine and uses of lawmay have shaped or responded to sec-tional experiences and patterns differ-ent from or in tension with intereststaking shape on a national scale. Thecountry is too big and diverse to war-rant assuming that what holds forNew England, the Middle Atlantic, orSouthern coastal states holds for all ofthe South, the Mississippi Valley, thePlains, the Southwest, or the PacificCoast.

In fact, an early, instructive lesson inregional differences in legal historywas provided in 1931 by studiesdistinguishing development of waterlaw in areas of generous and of limitedrainfall; but until recently such essayshad few counterparts. Moreover, from

the 1880s on, the growth of markets ofsectional or national reach under theprotection of the federal system gaveimpetus to expanded roles of nationallaw, ranging into quite differentrealms of policy from those embracedwithin the bounds of pre-1860 statecommon law or state statute law ofcorporations and private franchises.Legal historians have only latelybegun to come abreast of the last hun-dred years' development of law madeby the national government.

Allied to limitations of place in ear-lier work in legal history were limita-tions of time. To an extent dispropor-tionate to social realities, research cen-tered on the colonial years, on the firstyears of the new states, and on thecreation of a national constitution.Until the 1940s students badly neglec-ted the nineteenth century, though inimportant respects that century did atleast as much to determine the charac-ter of twentieth-century society in theUnited States as the colonial years orthe late eighteenth century. Specializedstudies have now revealinglyappraised relations of law to theeconomies of selected states between1800 and 1860. But the Civil War andthe headlong pace, depth, and diver-sity of change from the 1880s into the1920s produced a new economy and anew society.

Historians have just begun to exam-ine that critical span of growth anddefault in public policy. Tardy atten-tion to such later periods may reflect amistaken notion that history residesonly in a distant past. So far as thatbias exists, it does not withstandanalysis. Obviously the closer studentscome to their own times, the moredanger that their readings maybecome skewed by confusions, feel-ings, and interest peculiar to theirimmediate experience. But the hazardpoints to cautions in technique, not toa justification for limiting the propersubject matter of inquiry. What histo-rians study is the time dimension ofsocial experience, a dimension thatextends into the present as well as thepast. Indeed, the generation since theend of World War II has seen a periodof creative and destructive disjune-

tions in developing roles of law that isat least as important as any other inthe prior record.

Early in the twentieth century Ros-coe Pound challenged legal scholar-ship to seek deeper insights through asociological jurisprudence whichmight put law into realistic contextwith other institutions. Legal histo-rians have been slow to respond to thechallenge. The most distinguishedscholarship of earlier years largelytreated law as a self-contained system,with prime attention given to its inter-nal structure and procedures and scantattention to its working relations to theenvironing society. So far as researchhas broken out of those bounds, it hastended to give most attention to rela-tions of law to the changing characterof the private market. Even in that do-main we lack studies of concrete par-ticulars, of where and how law mayhave helped or hindered in meetingfunctional requisites of market opera-tions.

Emphasis on law-market relationsfits the reality-that the private markethas been central to ideas and styles ofaction which have determined thelocation and character of prevailingpolitical power in the country, espe-cially over the last 150 years. But,beyond that range, social realityrequires that legal historians pay moreattention to the interplay of law andthe family and sex roles, the bearing oflaw on the church, on tensionsbetween conventional morality andindividuality, on education, and on thecourse of change in scientific and tech-nological knowledge.

Particularly since the 1880s socialdevelopments have fostered a societyof increasing interlock of processesand relations. Demands on publicpolicy regarding the good order ofsocial relations have tended to mountto an extent and over a range whichlegal historians have yet to match intheir studies. To press the point is notto imply an exaggerated estimate oflaw's importance. To the contrary,more institutionally sophisticatedstudy of legal history is likely to yieldmodest estimates of the comparativeimpact of law and of other-than-legal

institutional factors. What such studymay produce is better answers toRoscoe Pound's probing questionabout the limits of effective legalaction. But only broad concern withlaw's operational ties to other compo-nents of social order will lead to thecontributions the study of legal historyshould make to an illuminating soci-ology of law.

The most immediate as well as moststringent effect in limiting the range ofwork in legal history has been the pre-occupation of students with courts andjudicial process. Indeed, to put thematter so understates the limitation,for in fact historians have not beenmainly concerned with courts, butspecifically with the reported opinionsand judgments of appellate courts. Ofcourse courts have been important inthe system of law. From about 1810 to1890 judge-made (commonjlaw pro-vided a great bulk of standards andrules for market operations (in the lawof property, contract, and security fordebt), for domestic relations, and fordefining familiar crimes against personand property.

Even so, from the late eighteenththrough the nineteenth century legisla-tion dealing with government struc-ture and with grants of franchises andcorporate charters to private personsformed a large part of legal order;from the 1880s on, statute law andrules and regulations made by execu-tive and administrative officers underbroadening currents of power delega-ted by legislators grew to become thepredominant body of public policydealing particularly with the economy.

Nonetheless, in the face of growth ofthe legislative components of legalorder, work in legal history has longbeen inclined to put disproportionate,indeed more often than not nearlyexclusive, emphasis on the activity ofappellate courts. There have beenunderstandable reasons for this bias,but they do not justify it. Appellatecourt opinions typically offer moreexplicit and available identificationand rationalization of public policychoices than do statutory or adminis-trative materials. Court cases presentrelatively sharply drawn dramas of

confrontation; the well marked rolesof plaintiffs and defendants at leastgive more appearance of explainingthe relevant interests and issues thanthe often more diverse, confused,imperfectly stated positions taken inthe pulls and hauls of legislative pro-cess and the maneuvering of specialinterests as these play on legislatorsand administrators. Responsive to dif-ferent social functions, legislative andexecutive or administrative lawmakersare likely to deal with diffuse or var-ied concerns, not as well defined asthose aligned in lawsuits.

Until the 1940s students badlyneglected the nineteenth century,though in important respects thatcentury did at least as much todetermine the character of twenti-eth-century society in the UnitedStates as the colonial years or thelate eighteenth century.

Some commentary distinguishes"law" from "government." This for-mula may have contributed to the ideathat "law" consists simply in whatcourts do. There may be an imputa-tion in the distinction that once westep outside the area of judicial actionwe confront only arbitrary exercises ofwill-that statutes and executive oradministrative rules and precedents donot provide principled or predictablelines of public policy. Facts do notbear this out. Over spans of years leg-islative and administrative processeshave produced sustained rankings ofvalues and predictable regularities ofchoice. For example, there has beenno whimsical or sheer flux of will indeveloped patterns of statute andadministrative law dealing with theorganization of markets, with publichealth and sanitation, safety on thejob, allocation of costs incident toindustrial accidents, or with taxation.Of course these bodies of law havereflected a good deal of push and pull

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among contending interests. But suchmaneuvering has been no less present,if more below the surface, of muchcommon law development.

As with the substance of publicpolicy, so it has been with proceduresfor making it. The observer can iden-tify and predict continuities in devel-opment of legislative and administra-tive procedures as well as of judicialprocedures in such matters as settingterms of notice or hearing to affectedinterests, fixing relations of legislativecommittees to their parent bodies, and 'arranging modes of making adminis-trative rules or orders.

The tendency to identify "law" withcourts may have stemmed in partfrom roles of judges in reviewingactions of other legal officers. A normof our system has been that aggrievedindividuals or groups should be able toseek a remedy in court against officialactions which exceed authority con-ferred by constitutions or by statutes.In this sense law created and operatedby judges has had an existence apartfrom activities of other legal agencies.But this fact does not justify dispropor-tionate attention to judicial process. Inpractice, relatively little legislative oradministrative action has come underjudicial review. Mostly, legislaturesand administrators set and enforcetheir own limits on themselves,defined by their own doctrine andprecedents in interpreting relevantconstitutional and statutory provisions.In addition, administrative law mak-ing stands under scrutiny in legislativehearings and through the process oflegislative appropriations. Outsidespheres of official action, it is true thatin the nineteenth century courts pre-dominated in structuring private rela-tionships, as through the law of con-tract and property. But in the twenti-eth century statute and administrativelaw enter largely into the governanceof private relations; "law" in this do-main can no longer be identified sim-ply with what judges do.

H one implicitly identifies "law"with commands, the more likely focusis courts, which seem the distinctivesource of judgments or decrees. In twoways this approach distorts reality.

From the late nineteenth century the character of the society was shapedmuch by activities of business corporations, and, especially in the twen-tieth century, by the influence of lobbies pursuing profit and nonprofitgoals; the structure and governance of corporations and of pressuregroups derived primarily from private initiatives ...

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Even if we focus on commands, forthe past 100 years at least the bulk oflegal commands have rested on statutebooks, administrative rules or regula-tions, or have been embodied inadministrative precedents. Granted,from the 1790s to the 1870s adminis-trative law making had a limited rolecompared to the surge of common lawgrowth. But even in that earlier timethe statute books contained a substan-tial volume of binding standards andrules. From the 1880s the trend accel-erated to more and more governanceof affairs through statutory and admin-istrative directions; by the 1980s law-yers were turning most of the time tolegislation or delegated legislation, orto administrative case law to find whatthe law might command their clientsto do or not to do.

More important than identifying thesource of the command aspects of law,however, is to take account of greatareas of public policy in which com-mand has been less to the fore thanthe positive structuring of relation-ships, and in which statutory andadministrative outputs have alwaysdominated. The power of the publicpurse has resided firmly in the legisla-ture; judges have never had authorityto levy taxes, and only by indirectionand to a marginal extent have theirjudgments determined for what public

money should be spent. Resource allo-cation through public taxing andspending has long been a major sourceof impact on the society.

In the nineteenth century, Con-gress-and state legislatures under del-egation from Congress-set terms fordisposing of a vast public domain, animmensely important style of legalallocation of resources in times when acash-scarce economy found it hard to

raise money by taxes. Statutory provi-sion of tax exemptions and selectivityin taxable subjects were also meansfor promoting favored lines of eco-nomic activity.

In the twentieth century growth ingeneral productivity created unprece-dented liquidity in the economy, withdirect money subsidies from govern-ment assuming the dominant role thatland grants had in the nineteenth cen-tury. By conditions set on governmentgrants in aid, and by elaboratingexemptions, credits, and deductionsunder individual and corporateincome taxes, twentieth-century taxand appropriations law became ofmajor importance in regulations andchanneling economic activity andaffecting the distribution or allocationof purchasing power. Public policyalso affected resource allocation bylegislative and administrative actioncontrolling, or at least materially influ-encing, the supply of money (includ-ing supply of credit], and (for better orworse) deflationary or inflationarytrends in the economy.

Courts have had only marginalinvolvement in these matters, whichlegal historians have neglected in pro-portion to the exaggerated attentionthey have given judicial process.

Narrow identification of law withcommands-and of commands with

courts-ignores other major sectors oflegal action than those involved indirect allocation of resources. Evenfrom the late eighteenth century legis-lative grants of patents, of specialaction franchises (as for navigationimprovement]. and provision of corpo-rate charters were important means ofpromoting as well as legitimating andto some degree regulating forms of pri-vate collective action. Government

licensing, always within statutory andadministrative frameworks, carried onto playa salient role in the twentiethcentury.

From the late nineteenth century thecharacter of the society was shapedmuch by activities of business corpo-rations, and, especially in the twenti-eth century, by the influence of lob-bies pursuing profit and nonprofitgoals; the structure and governance ofcorporations and of pressure groupsderived primarily from private initia-tives, but also could not be divorcedfrom statutory and administrative lawwhich profoundly affected the scopegiven to private will.

Moreover, overlapping the resource-allocating, licensing, and regulatoryroles of law, yet with their own specialcharacter, were uses of law to promoteor channel advances in science andtechnology. Here again, one en-counters a major sector of modernlegal history, built more from legisla-tive and administrative than from judi-cial contributions, which would be ig-nored insofar as one identifies "law"and legal history with courts and withcommands issuing from courts.

Until recent years legal historianswrote as if their subject defined itselfwithin narrow jurisdictional limits ofplace, time, and institutional refer-ence. However, over the last fortyyears broader currents of ideas havebegun to move through the area. Live-lier concern with roles of law in deal-ing with social adjustments and con-flicts has fostered fresh attention totheory. Legal historians have beenappraising issues of (1) consensus orwant of consensus on values, (21 plur-alism expressed through bargainingamong interests, and (3) social andeconomic class dominance in legalorder.Critics have found want of realism

or sophistication in a good deal ofwork in legal history, which they readas portraying the United States as asociety of substantial harmony, basedon almost universally shared values,marked by little or no use of law bythe powerful to oppress the weak.Much of the criticized work is not asnaive as the criticism would suggest. It

is no new discovery that law has ofteninvolved severe conflicts over powerand profit, or that the realities of con-flict have not always been plain on thesurface of events. These themessounded in Federalist Number Ten, inthe attacks leveled by Madison andJefferson on Hamilton's programs, andin Calhoun's Disquisition on Govern-ment.

On the other hand, conflict hasnever been the whole of law's story. Asubstantial part of social reality hasbeen the presence of some broadlyshared values which have shaped orlegitimated uses of law. Wholesaledenial of that could hardly standagainst stubborn facts which showthat this has been, overall, a workingsociety; an operational society canonly rest on some substantial sharingof values.

The real issue in appraising thesocial history of law is not to establishconsensus or no consensus as the sin-gle reality, but to determine howmuch consensus, on what, amongwhom, when, and with what gainsand costs to various affected interests.Law has embodied values sharedamong broad, yet diverse sectors ofinterests. The course of events hasborne witness, for example, to long-held, broadly sustained faith thatsocial good follows from an increase ingeneral economic productivity meas-ured in transactions in private mar-kets. Similar faith has accorded legiti-mate roles to the private market as amajor institution for allocating scarceeconomic resources. Over most of thecountry's past people have shown abelief that they would benefit in netresult from advances in scientificknowledge and in technologicalcapacity to manipulate the physicaland biological environments. Thesearticles of faith have come under ris-ing challenge in the past fifty years.But the challenges themselves evi-dence the felt reality of earlier consen-sus, even as new public policies bear-ing on the environment attest emer-gence of some new areas of valueagreement. In some criticism of "con-sensus history" there seems to lurkconfusion between recognizing facts

and evaluating the social impact of thefacts. The critics plainly disapprovesome values which broad coalitions ofopinion embodied in past publicpolicy. But to disapprove now of ashared value of the past is not to dis-prove that people in the past in factshared the value. To recognize therealities of shared values does notrequire that we disregard all groundsof skepticism toward consensus. Con-structive criticism will weight the his-tory of public policy with consider-ation of the parts played in affairs byforce, indoctrination, despair, andindifference.

To the extent that it has been effec-tive, legal order in the United Stateshas rested on unsuccessful assertion ofa monopoly of physical force in legalagencies and their ability to fix termson which private persons may prop-erly wield force. The constitutionalideal is that public force be used onlyfor public good. An important task forlegal historians is to probe the amountof fiction and reality in the pursuit ofthis constitutional ideal. The recordshows uses of law which have put theforce of law at the disposal of privategreed for power and profit. The recordalso shows that in considerable mea-sure law has been too weak, incompe-tent, or corrupt to prevent uses of pri-vate force against workers, the poor,or racial or ethnic minorities. Recogni-tion of realities of consensus shouldnot ignore these dark aspects of thelegal record.

People may be brought to acceptpublic policy through indoctrinationagainst their best interests, under guid-ance and for the benefit of specialinterests. Because of the legitimacywhich the idea of constitutional gov-ernment has tended to confer on legalorder, law may be a useful instrumentfor such manipulation. Past politicshas shown the effectiveness of rallyingslogans based on law, includingappeals to "law and order," to "free-dom of contract," and to "due processand equal protection of the laws." His-torians need to be aware that, whilelaw may rest on consensus, law maybe used to build consensus, and to doso in service to diverse special interests.

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Apparent agreement on valuesembodied in law may reflect not somuch positive consent or wish asresigned or despairing acceptance ofsuperior force, directly or indirectlyapplied. Thus, immigrants' acceptanceof "Americanization" may havesprung from a sense of insecurity andlost roots rather than from positivecommitment. Again, it is difficult tograpple with the element of "classwar" in the content of a society inwhich so much combat among inter-ests has stayed within bounds of regu-lar processes of the market, of politics,and of the law.

Another factor which may havediluted the effect of common will hasbeen the presence of contradictionamong shared values. The course ofantitrust policy is a notable example.Since the Sherman Act a substantialpublic opinion has accepted the ideaof using law to give positive protectionto the competitive vitality of the pri-vate market. On the other hand, peo-ple have learned to prize a rising mate-rial standard of living, and to associatethis satisfaction with fruits of large-scale production and distribution;these attitudes have developed in con-tinuing tension. Government has givenfirm institutional embodiment to an,titrust programs. But public policies,not only toward the antitrust effort,but also regarding tariffs, patents,taxes, and public spending have failedto withhold governmental subsidiesfrom or mount effective challenges tothe growth and entrenchment of con-centrations of private control in mar-kets. In such varied respects the coun-try's experience cautions legal histo-rians to explore the origins and qualityof will behind apparent sharing ofvalues.

There is another element in appar-ent policy consensus to which criticsof "consensus history" do not give dueweight. This has developed into a soci-ety of increasing diversity and num-bers of roles and functions. Amid thiscomplexity most people have in factprobably been indifferent to particularuses of law to affect allocations ofgains and costs among specializedinterests; most people have not sought

For the most part voters do not send members to the legislature underspecific mandates to spend so many dollars on public health inspectionof food processors, or on university libraries, police radio transmitters, orany other of the myriad items of appropriations acts. The voters are con-tent that their votes legitimate a public process for deciding on all theseparticulars.

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specific involvement in specific deci-sions of public policy. Instead theyhave tacitly if not explicitly shared avalue distinctive to the legal order-acceptance of certain regular, legiti-mated, peaceful processes for makingdecisions, whatever the particularsubstance of the decisions taken.

Public budgets provide an outstand-ing example. For the most part votersdo not send members to the legislatureunder specific mandates to spend somany dollars on public health inspec-tion of food processors, or on univer-sity libraries, police radio transmitters,or any other of the myriad items ofappropriations acts. The voters arecontent that their votes legitimate apublic process for deciding on all theseparticulars. True, indifference to theparticulars may sometimes rest onindoctrinated ignorance. But, morelikely, it rests on valid, rational per-ceptions of self interest; as creatures oflimited time, energy, and capacity,most individuals can not busy them-selves in helping decide how everycompetition of focused interestsshould be worked out. Thus a validindifference toward many substantivespecifics in uses of law has probablybeen a continuing element in a realconsensus which accepts legal pro-cesses. The reality of this consensushas grown with the need of it, as thesociety has grown more diverse in theexperiences its members encounter.

Growth in diversity and interlock ofrelations in the United States hasemphasized uses of law to channeland legitimate bargains struck amongcompeting interests. The significanceof legal processes for the operations ofa pluralist society is attested to by theaccommodations evident in state ses-sion laws and in the federal Statutes atLarge in the nineteenth century, andin both statute law and administrativeregulations of the twentieth century.In the growth of common law bargain-ing uses of law have been less overt,and within the close bounds of propri-ety, but they have been present none-theless. Resort to political parties andparty politics has been woven intoactivities of formal legal agencies insuch bargaining to give a generally

centrist character to pursuit of majorinterest adjustments.

More open to dispute than the gen-eral acceptance of interest bargainingthrough law have been assessments ofthe social results and the social andpolitical legitimacy of such uses of

legal process. Some observers mayhave read the bargaining record toocomplacently, taking the law's contri-butions to have been only to the pub-lic good; there is some of this toneeven in the sophistication of FederalistNumber Ten. But as early as the Dis-quisition on Government (18311Cal-houn pointedly questioned whetherbargaining might amount to no morethan creation of artificial majoritiesbased on selfishly opportunistic coali-tions.

Modern criticism of faith in the gen-eral benefits of a pluralist social-legalorder have suggested several usefulcautions to legal historians. First, oversizeable periods of time and ranges ofinterests, inequalities in practical aswell as in formal legal power havebarred or severely limited access tothe bargaining arena for Indians,blacks, and other disadvantaged ethnicgroups, women, and the poor in gen-eral. Moreover, inequalities have lim-ited those who did enter the arena;bargaining power was often in grossimbalance, as for example betweenbig business and small business,between urban creditors and ruraldebtors, and between employers andworkers.

Further, apart from excluded or gen-erally disadvantaged sectors of society,some interests have been so diffuse orunorganized as to have only limitedsay about what went on. This was the

position in the late nineteenth centuryin relations of farmers and smallbusinessmen with the railroads, and inthe twentieth century in dealings ofconsumers with big firms supplyingmass markets. In this respect whitemiddle class people who in other ways

shared profits of dominance over lessadvantaged groups were themselvesdisadvantaged.

The most subtle, but probably mostharmful limitation on the bargainingprocess derived from the sharplyfocused self interest which typicallyprovided the impetus in resorts tolegal processes. Perceptions of selfinterest usually brought to bear will toinitiate and sustain uses of law toserve particular ends. What did notenter perception did not stir will. In anincreasingly diverse, shifting society,even among relatively sophisticatedand powerful individuals and groups,perceptions of interest tended to con-centrate on rather short-term adjust-ments, specialized and intricate indetail. Such factors fostered narrowlypragmatic uses of law which werelikely to slight broad reaches of causeand effect and long-term impacts. Thesecond half of the twentieth centuryshowed some tardy realization of theselimitations of interest bargaining. Thusthere were moves to invoke law toregulate the course of technologicalchange and even of scientific inquiry,as well as to reassess social gains andcosts from operations of the privatemarket.

For all the qualifications, there werepositive aspects in the history of inter-est bargaining through law. Therewere disquieting trends towardincreased concentration of private and

public power. Nonetheless, the societycontinued to show a considerable dis-persion of different types of practicalpower, and a material challenge forlegal historians was to improve ourunderstanding of the qualities anddefects of legal processes in affectingboth concentration and dispersion.Interest bargaining through law seemsto have contributed to creating sociallyproductive elaboration of the divisionof labor within and outside of marketprocesses.

Finally, harsh experience withabuses of various types of legal orderhas suggested no convincing alterna-tive that seems likely to improve oninterest bargaining within constitu-tionallegal processes as a meanstoward a legal and social order thatwill be at once efficient and humane.The principal alternatives that historyoffers have involved narrowly based,centralized authority, which typicallyhas fallen into abuse without servingeither efficiency or humanity. Overall,our experience teaches that a just andefficient society needs more guidancefor policy than mere bargainingamong a plurality of interests maysupply, but that the society cannotafford to do without a substantial bar-gaining component in its legal order.

Some interpret United States legalhistory as a record of uses of law by anarrow sector of society to help getand control the principal means ofproduction so as to dominate all othersocial sectors for the gains that concen-trated wealth and power afford. In thisview all else in the law which does notseem to fit this reading of events-con-stitutional structures, Bill of Rightsguarantees, or generalized legal rightsof property, contract, and individualsecurity-is only a facade for the real,tight monopoly held by an inner circleof private powerholders.

This critique carries useful insightsfor legal historians who do not acceptits ultimate thesis. Concentrated pri-vate wealth has used and abused itsinfluence on law to its own advantage.It has fostered or accepted, though itmay not always have initiated, exclu-sion of disadvantaged minorities fromthe circle of effective interest bar-

gainers. It has proved capable of sub-verting to its ends the organized physi-cal force of the law. Short of resort toovert force, sustained, gross inequali-ties in private command of wealth andincome have promoted unjust uses oflaw to serve special interests. Concen-trated private control in large businesscorporations has brought into questionthe legitimacy of the private market asan institution for healthy dispersion ofpower.

However, United States legal historyseems too rich and diverse to beunderstood simply as recording thesuccess of a small class of controllersof the means of production in domi-nating the whole course of the society.That interpretation underestimates therealities of shared values and interestbargaining, neglects the extent towhich public policy embodied in lawhas responded to functional needs oflife in society, and fails to appreciatesome more profound limitations onthe success of efforts to create a socialorder at once effective and humane.

An analysis which rates thecountry's legal history as simply aproduct of ruling class dominationmust deal with the fact that somebroadly shared values have hadimportant roots other than in the dis-tribution of control of means of pro-duction. Thus from the adoption of theFirst Amendment separation of churchand state developed into a substan-tially unchallenged premise of publicpolicy. Into this item of consensuswent influences derived from the sec-tarian diversity of the country, memo-ries of religious wars and persecutionabroad, and an individualistic outlookon life born of mixed parentage in reli-gious, economic, and cultural factorsthat reached back some centuries.

Another salient example is the greatimpress on public policy of broadlyshared values which grew out of theexperience of growth in science andtechnology. True, this experience wasaffected by the market. But it involvedreckonings not limited simply to thoseof a market calculus. Technical andscience based confidence that materialadvance would boundlessly improvethe quality of life did as much to sus-

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tain faith in the social merits of themarket as market activity did to pro-mote faith in science and technology.Continuing exposure to what peoplesaw as evident benefits from additionsto their technological command ofnature made them the more receptiveto change brought by technology; theidea that such change might properlycall for some legal regulation wastherefore the slower to emerge.

Further, a ruling class interpretationof the country's legal history under-rates the extent to which interest bar-gaining through law has curbed pri-vate operation of means of production.Public policy in this domain was oftendefective in content and in execution.Nonetheless, out of interest group bar-gaining within legal processesemerged substantial regulations pro-tecting workers, consumers, and smalland moderate sized business firms inmatters of health, safety, collectivebargaining, honest dealing, and main-tenance of some extent of competitionin market. By the 1970s one could notrealistically define the structure andgovernance of even the largest busi-ness corporations without adding toprovisions of corporation law proper arange of legal controls external to cor-poration law in matters of finance,credit, marketing practices, taxationand accounting, labor relations, stock-holder relations, and impacts on theenvironment.

Apart from expansion of legal con-trols, another aspect of affairs puts inquestion a diagnosis which explainslegal history in terms of big businessdominance. Through the nineteenthcentury and into the twentieth a largeproportion of legal contests amongcompeting interests seems to havebeen intraclass rather than interclasscollisions among different assignmentsof entrepreneurial property ownerswho, though of varying means, allplayed capitalist roles. This appraisalfits much of the development of lawdealing with creditor-debtor relations,the money supply, regulation of insur-ance and banking, relations betweencorporate promoters and managersand investors, and with antitrust pro-tection of the market. In these aspects

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law has often reflected a degree offractionalization of capitalist interestssubstantial enough to put in questionthe dominance of a high capitalist sec-tor. To all of this, one must addaccount of the more or less distinctimpact of political processes.Another dimension of legal history

which a ruling class interpretationslights has been the response to whatbroad sectors of opinion have per-ceived to be functional requisites of aworking society. Population growthand concentration, broader and morecomplex market operations, andeffects of advancing technology multi-plied the pressures of functional con-siderations, especially from the 1880s.Such pressures seem to have beenmaterial, for example, in the develop-ment of law dealing with public healthand sanitation, with promotion of pre-dictable regularities in market transac-tions, and with organizing and admin-istering a supply of basic facilities fortransport, water supply, and genera-tion of electric power. Of course thecapitalist context often puts its distinc-tive stamp on these developments. Butcomparison with operations in non-capitalist societies suggests the pres-ence of pressures likely to attendlarge-scale, bureaucratized, technicallyintricate social arrangements as such.So far as care for function took on acharacter specially adapted to capital-ism, legal historians need to learnmore about the concrete particulars ofuses of law to serve those functionalneeds.

Finally, legal history needs to takedue account of how far much of whathappens in society is grounded in thefact that under all kinds of social orga-nization, capitalist, socialist, or what-ever, humans are limited beings. Weneed to be cautious about fixed defini-tions of "human nature;" exploitationhas often sought to justify itself byappeals to that "nature." But the stub-born fact remains that we are creat-ures of limited physical, intellectual,and emotional capacity, with limitedability to transcend sense of self or ofthe groups to which we feel near, andwith limited courage and energy ofwill. Within such limitations we con-

front overwhelming detail and densityof experience, sometimes moved bychanges which in pace, range, depth,and intricacy outstrip our understand-ing. To our limitations as individualswe must add limits set, sometimesbelow awareness, by cultural inheri-tance and mass emotion.

Whatever the particular organiza-tion of power in societyI generalexperience teaches that under anysystem people will feel the impactsof greed, lust for power overothers, fear of the stranger, andyearning for individual and groupsecurity against primitive fears ofwhat lies in the surrounding murkand muddle.

Out of this mixture which makes upour human predicament as individualsand as members of social groups, his-tory tells how much has happenedfrom unchosen unplanned, oftenunperceived accumulations of eventsand their consequences. Probablythese elements account for more legalhistory than all of the deliberate striv-ings which our vanity likes to dwellon. Here perhaps we confront limits ofeffective legal action that are moredeeply rooted than any ruling classtheory can measure.

Yet law has been a major instrumentfor combatting mindless and chaoticexperience. Hardly any aspect of legalhistory more poignantly bears on ourhuman situation than resort to legalprocesses to move against the daunt-ing forces of individual and social driftand inertia. But this is an aspect whichlegal historians have tended to leaveunexamined. By definition and inter-pretation which reads legal history interms of dominant and dominated sec-tors of society deals largely withconscious and deliberate striving.Thus, along with all other interpreta-tions that turn on estimates of will, it

omits the great darkness which sur-rounds all striving. Realism calls forincluding in the story the influences ofexistential fears and insecurities.Whatever the particular organizationof power in society, general experi-ence teaches that under any systempeople will feel the impacts of greed,lust for power over others, fear of thestranger, and yearning for individualand group security against primitivefears of what lies in the surroundingmurk and muddle. However imper-fectly seen or realized, some responsesto such threats and challenges haveappeared in the country's legal history.Those responses are deep in constitu-tional structures and in provisions ofthe Bill of Rights, in uses of law toallocate resources so as to advanceknowledge and provide education, andin creation of legal standards and ruleswhich may foster empathy amongindividuals who stand to each other inno close ties of blood, kin, clan, relig-ion, race, or nationality.

True, the law's responses have beenconditioned by many features of thisparticular social context-in the settingof North America, with its socialgrowth timed in the surge of the com-mercial and industrial revolutions andthe rise of the middle class, its valuesstamped as predominantly white, mid-dle class, and capitalist, Christian,individualist, and pragmatic. But thereis a substratum of meaning herewhich study of such contextual par-ticulars does not reach. No more willthat substratum be reached by a rulingclass interpretation. Law has nothingto do with creating these ineluctableterms of existence. But the presence orabsence of response to them throughlaw, and the qualities or deficienciesof response provide inescapabledimensions of legal history, whetheror not legal historians have the seIisi-tivity to see this.

The Defender: William CoffeyDoug Moe

11

Bill Coffey graduated in 1961 from the University of WisconsinLaw School and has established himself as a pre-eminent figureamong criminal defense lawyers.

The article which follows is the work of Doug Moe, aMadison-based freelance writer, and appeared first in Milwau-kee Magazine {which has permitted reproduction of the piecehere}.

Doug Moe's article, standing alone, warranted reprintinghere as an account of a notable and colorful alumnus of theLaw School. But beyond the wish to relay a salute to Bill Coffeyin his professional role as a criminal defense lawyer, the LawSchool has special reason to use this occasion for adding a fewwords of its own to this salute to him.

For more than a decade and a half now Bill Coffey has-as a practicing lawyer-helped the Law School in educating itsstudents. The School from its beginning has counted on practic-ing lawyers to assist it in legal education and Bill is amongsome 120 Milwaukee area lawyers honored in an AppreciationDinner on March 21, 1984, for their contributions to our edu-cation efforts. In Bill's particular case, the contributions havebeen frequent and most important: On several occasions, he hasappeared for as long as a week in our General Practice Course.He has taught Advanced Criminal Procedure at least ten times,taught Trial Advocacy almost as frequently and at least oncehas taught Evidence. Beyond this, he has devoted a great deal oftime to the Legal Assistance to Institutionalized Persons Pro-gram. (LAIP-as the Program is known-was reported on inGargoyle for Winter 1984 as the Law School's notably success-ful program for learning by doing the real thing.)

And so, Bill Coffey, the Wisconsin Law School salutes you.And in doing so, we intend as well to salute those practicinglawyers-numbering now in the hundreds-who have madeavailable their skills and experience to assist in the education ofWisconsin law students.

Among the desk-pounding, publicity seekingband of criminal defense lawyers in Wisconsin,William Coffey may not be the most famous orthe most flamboyant. He's just the best.

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ill Coffey's client had this thing about supply-sideeconomics. He liked it so much, in fact, that hesupplied himself with $700,000 in bills of various

denominations, which in his entrepreneurial zeal, heprinted himself. .

When he was caught by government agents, the guyknew he was in very serious trouble. He was stone-coldguilty and he knew it; and, more importantly, the govern-ment knew it. They had $700,000 in counterfeit currencyas evidence and, as a result, the outcome was all but inevi-table-convictions followed by two decades in federalprison.

"Coffey, the last thing I want is justice," he told the Mil-waukee defense attorney at their first meeting, "because ifI get justice I'll get 20 years."

The counterfeiter was, Coffey recalls, "the most honestdefendant I've ever represented ... he was a client I gotalong with well."

Which is to say: they understood one another. The casewas hopeless; but it was the kind at which Bill Coffeyexcelled. As it turned out, the counterfeiter had not mis-placed his faith. Coffey got the guy off.

Coffey successfully moved to suppress the counterfeitmoney as evidence, arguing that the federal agents hadobtained it in an illegal search. Without the $700,000 indamning currency, the government's case evaporated andthe charges were dismissed.

Score: Counterfeiter-I: justice-O."Had the federal government not searched the premises

illegally, had the $700,000 in counterfeit money beenadmissible in evidence," recalls Coffey, "there isn't anyquestion but that man would have gotten 20 years. The fed-eral agents in executing the search warrant violated thefourth amendment to the Constitution of the United States.As a consequence that man went home.

"That does not in my mind create a moral problem forme, because I accept the fundamental premise on whichthis system of justice is constructed, and any blame for thatman not being convicted should be directed toward theauthorities who made an illegal search. If people want toget upset and aggravated, they should get upset and aggra-vated with people who conduct illegal searches, not withthe criminal defense attorney."

People do still get upset with criminal attorneys, how-ever, who have increasingly found themselves at the centerof a spreading public debate over the moral ambiguities oftheir role.

But Bill Coffey has no apologies to make."I represent a lot of people who did what they're

charged with, or did something close to it," says Coffey,"and I understand that.

"But my function is not to be prosecutor, judge, jury,and God. Whatever they did, the state is required to provetheir guilt beyond a reasonable doubt with competent evi-dence, evidence that is obtained within the limits of theConstitution of the United States. If the prosecution can'tdo that they're not entitled to a convictions."

Because William Coffey doesn't crave publicity, becausehe doesn't brawl with cops or otherwise engage inheadline-hunting, the 51-year-old lawyer is not widelyknown outside the briefcase jungle of the state legalsystem.

Among his peers' in the Bar, however, Coffey is routinelyreferred to as one of the best, or, as often as not, simply as"the best" attorney in Wisconsin.

Robert DeChambeau, a veteran assistant district attor-ney in Dane County, calls Coffey "the best defenseattorney in the state. A gentleman in and out of thecourtroom.' ,

Dane County Circuit Court Judge Michael Torphy, whopresided over one of Coffey's most publicized cases, the1968 disorderly conduct trial of Father James Groppi, saysof Coffey: "He's very well respected-an excellent lawyer.I really couldn't find enough good things to say about him.I think he's a master technician in his field, a considerateand courteous man who knows what he's doing. Bill's oneof the best attorneys in Wisconsin and probably in theMidwest."

It's such a flattering refrain, one can't help wonderingwhether anybody has a bad thing to say about Coffey.

"Everybody is going to say the same thing," says RobertDonohoo, an assistant district attorney for MilwaukeeCounty. "Everybody is going to say Bill is very honorable,and a very good attorney. He's one of those attorneyswhose word is good. The number of attorneys you can saythat about has dwindled as time goes on."

In what is probably the ultimate compliment one lawyercan pay to another, Madison's Donald Eisenberg, whogained statewide notoriety during his unsuccessful defensesof murder suspects Barbara Hoffman and Lawrencia Bem-benek, retained Coffey to represent him when Eisenbergwas investigated on conflict of interest allegations relatingto the Hoffman case.

The verdict on Coffey's ability seems clear. Why then ishe less than a household name in Wisconsin? Not that he'sunknown-far from it. But compared to the flamboyantDon Eisenberg (or Milwaukee's Alan Eisenberg, for thatmatter], Coffey maintains a low profile.

The answer may be that while Coffey has a driving ego,seeing his name in 60-point type is not what fuels it. Askhim to list his favorite cases, and he'll say you never heardof most of them, because they never came to trial. Cer-tainly not. Bill Coffey got the charges dismissed before thecase made it to court.

I saw him recently in the Dane County Courthouse on afairly minor "possession with intent to deliver" drug mat-ter, and he seemed much the same man the Capital Timesnewspaper described as tall, suave, and articulate" morethan a decade and a half ago. He said about 30 words to thejudge and got what his client wanted-a signature bond.

Coffey's physical presence fits well into his overall style:sharp but understated. You wouldn't know his shirt wasmonogrammed unless he took off his jacket. A sharp con-trast, to say the least, to the more colorful criminal attor-

neys who approach the courtroom with enough body jew-elry to shame an Aztec princess (or who are known for giv-ing television interviews while their sometime clients-somewhere off camera-are being carted off to Waupun for30 years of state-sponsored hospitality.

"Some lawyers' view on how they can be most effectiverepresenting their clients is confrontational," explains Cof-fey. "I, as much as I'm able, avoid trying to be that con-frontational. First of all, most of my clients are people whohave already had more publicity than they need or care for.It is not in their interest to generate more attention andpublicity. It is not in their interest to have me making state-ments in the press or to other people that may get myname in the newspaper but will not aid the case of myclient.

"I think the day you're really worth your salt is the daythat you convince the prosecutor not to bring charges in thefirst place, or where you get the charges reduced or affectthe charging decision. As a trial lawyer I love trying law-suits, and while I enjoy trying lawsuits, from the client'sstandpoint the best conceivable thing that can happen is tohave that matter taken care of under terms acceptable tomy client as quickly and efficiently as possible with as littlepublicity as possible. My clients do not need more pub-licity. It is my obligation to them to avoid generating morepublicity for them."

Coffey admits that he did not always affect a low-keycourtroom style.

,'When Christ Seraphim used to be on the bench in mis-demeanor court early in my practice, there were dayswhen as soon as I stepped into that courtroom the confron-tation would start-we'd be screaming, hollering and mak-ing comments-and they were still being made as I waswalking out of the courtroom.

"On other days, in other courts, you'd get the case dis-missed or you'd get the charges reduced and it's all veryeffective and very quiet and nobody knows you're outthere. Unfortunately, a lot of people confuse screaming andhollering and aggressiveness with effectiveness. I think it'simportant that a lawyer be recognized as someone youcan't steamroller or run over, and if you try he's smartenough to stand up and not let it happen, but I don't thinkyou have to go around generating screaming matches todemonstrate that you have that quality."

Surprising as it may seem, Bill Coffey himself worked asa prosecutor for the U.S. government, for a little more thanfour yours.

Born and raised in Racine, a graduate of St. Catherine'sHigh School, Coffey spent three years in the Army andthen returned to Wisconsin, graduating from UW-Madisonwith a degree in political science in 1959.

Growing up, he had devoured books about Earl Rogersand Clarence Darrow, so when he enrolled in the UW LawSchool it was with the idea of becoming a criminal defenseattorney.

Few fledgling defense attorneys try lawsuits, however,and Bill Coffey very much wanted to try lawsuits. To that

13

end he took a job-s-after graduating law school in 1961-asan attorney with the United States Security and ExchangeCommission in Chicago, in the stock fraud division. TWoyears later he signed on with the U.S. Attorney's office inChicago as an assistant U.S. Attorney in the criminaldivision.

Little more than a year later, anticipating a move intoprivate practice (and not wanting to settle in Chicago), Cof-fey switched to the U.S. Attorney's office in Milwaukee.On January 1, 1966, he joined the prestigious Milwaukeelaw firm of Shellow and Shellow; within a few months thefirm's name changed to Shellow, Shellow and Coffey.

Early in his practice, it became apparent that Coffey wasa liberal with a social conscience and a nose for ripe legalissues. He defended Father Groppi and Kaleidescope maga-zine, and he sat on the first board of directors of the statepublic defender's office. In 1968, Coffey filed a motionchallenging the constitutionality of Wisconsin's anti-marijuana law, which at the time carried a penalty of up to10 years just for possession. Marijuana, Coffey asserted, ,'isnot a narcotic drug and poses no danger to the publichealth, safety, welfare or morals of the community."

Of cases such as Groppi's, Coffey today reflects: "Therewasn't a lot of compensation in any of those cases, but theywere cases that appealed to me and they were cases Ithought were important. I thought the people were doingthings that mattered. Unfortunately, there's not a lot of thatsort of legal work being done these days."

The Groppi trial is a favorite. In October 1968, FatherJames Groppi led a group of welfare mothers into thechambers of the Wisconsin State Legislature in Madison inprotest of a plan to cut back on welfare benefits. It was anon-violent protest, but disruptive enough for Groppi toland in jail on a charge of disorderly conduct and legislativecontempt. When word reached Coffey in Milwaukee, heraced (literally-he was ticketed doing 88 m.p.h. on 1-94)toGroppi's aid.

The highly-publicized trial before Dane County JudgeMichael Torphy lasted only a day and a half. The jury hung11-1 for acquittal, and Torphy dismissed the charges.

"That was a well-tried case," Coffey says. "But I prob-ably shouldn't say that's one of my greatest memoriesbecause it hung 11-1and the woman who hung the jurywas someone I was satisfied was going to be sympatheticand receptive to the defense.

"On the other hand, it turned out there was an oldergentleman on the jury, a plant worker from Madison whoseplant had closed, and three days after the trial he showedup in my office unannounced and asked me if I couldarrange for him to meet Father Groppi because he wantedto get Father Groppi involved in helping the elderly andthings like that."

When the Legislature ordered Groppi jailed on legisla-tive contempt without due process, Coffey swung back.

"Everyone talks about the 'disgraceful conduct' alleged-ly engaged in by Father Groppi and his supporters," hesaid at the time, "But few people have expressed any indig-

14

nation about the illegal and disgraceful conduct of theAssembly in connection with the manner in which theysecured his confinement."

Such blatant attacks on individual rights have coloredCoffey's thinking-even on those cases where the princi-ples at stake are more easily obscured, such as defendingcounterfeiters or accused child-molesters.

"I'm like anyone else," he says. "1 have particular aver-sion and difficulty with certain kinds of crimes, and withcertain kinds of people. Still, I have and do defend peoplecharged with these crimes.

"I don't think there's a morality problem. I think peoplewho have the morality problem, or raise the morality issue,don't understand the basic concept and the fundamental

"... I think it's important that a lawyer be recog-nized as someone you can't steamroller or runover, and if you try he's smart enough to standup and not let it happen, but I don't think youhave to go around generating screaming matchesto demonstrate that you have that quality."

principles of the administration of criminal justice. I thinkthat's unfortunate. I'm always appalled at the general pub-lic's lack of comprehension and understanding of thetheory and principle of the system. I say that, however,knowing full well that in my law school teaching ofadvanced criminal procedure and trial advocacy, I'm fairlyoften taken aback by the fact that law students don'tunderstand the concepts and the principles.

"I think that to understand, it's important to rememberthat people are presumed innocent of criminal charges.That no matter how much evidence there is or isn't, nomatter how heinous the crime is or isn't, a person is enti-tled to require the state or federal government to proveguilt beyond a reasonable doubt. If the state can prove guiltbeyond a reasonable doubt with competent, probative evi-dence they're entitled to a convictions. If not, they're notentitled to a convictions."

Throughout the late sixties, Coffey was involved againand again in groundbreaking civil rights and liberties litiga-tion.

When, for instance, the Shellow firm represented theeditor of Kaleidescope magazine, charged with obscenity inMilwaukee County for a poem that appeared in the maga-zine, it went all the way to the U.S. Supreme Court beforeCoffey's client was acquitted.

"In the book The Brethren," Coffey says, "that was saidto be the case where the United States Supreme Court wasgoing to say once and for all the printed word could neverbe obscene." The decision didn't ultimately read that way,but it nevertheless remains a Coffey favorite: an importantdefense on an issue that mattered.

Coffey at times appears nostalgic for those days, whenthe lines of battle were drawn so clearly.

A framed picture of Father Groppi still hangs on thewall of Coffey's seventh floor offices at 1100 W. Wells St.Next to it are a Kaleidescope magazine cover, a picture of arace horse (Coffey's very short career as a thoroughbredhorse owner came about when a client bestowed a racehorse on Coffey in lieu of a fee), and a decidedly unflat-tering caricature of Richard Nixon, a figure with obvioussymbolic importance for Coffey.

But, as he concedes, "the practice changes over theyears." Coffey left the Shellow firm late in 1969 and sincethat time he's been in private practice on his own with avariety of people. His firm currently is called Coffey, Cof-fey, and Geraghty-the other Coffey being his brother Den-nis, who's also highly regarded.

Coffey's practice has changed primarily because federalprosecutors (he tries mostly federal cases) today are inter-ested in different types of crime: large-scale drug cases,white collar crime, Medicaid fraud.

"A good part of our practice is drug-related," he says.But Coffey also continued to work closely with the state

public defender's office and the UW-Madison Law School.

He sat on the first board of directors of the publicdefender's office.

"The vast majority of the so-called street crime cases arehandled by the public defender's office," Coffey says,"because people don't really have sufficient funds to behiring private lawyers. People who find themselves in thatkind of trouble, that is. They wouldn't be out stealing $30 ifthey could afford to hire a lawyer."

For the past nine years, Coffey has worked closely withthe UW Law School, teaching a class some semesters, andhelping out with Professor Frank Remington's Legal Assis-tance to the Institutionalized program, in which law stu-dents give legal help to prisoners and mental patients.

Remington is also the UW's faculty representative to theBig 10 athletic conference, and when the Wisconsin athleticdepartment had to hire an independent investigator as partof an NCAA probe, they chose Coffey.

But even though Coffey is less likely nowadays to mountthe legal barricades as he did in the sixties, he is no less ahard-liner on the question of the rights of the accused. Andhe is worried that those rights have already been danger-ously eroded.

"I don't think the general public is even aware of howserious the encroachment on the rights of people are," Cof-fey says.

"I suppose that even if they were aware they might notcare."

As an example, Coffey points to recent legislation thatdeals with property and money belonging to a defendant.Via legislation defining a "continuing criminal enterprise,"law enforcement officials may now seize all a defendant'sproperty and money and proclaim it forfeited to the gov-ernment, unless the defendant can prove it did not come tohim as a result of a crime.

"It completely shifts the burden of proof," Coffey says,adding that it is only one of several encroachments.

"It's so easy for the general public to identify with theprosecutor," he continues. "It's very difficult to get people,to incite people to be concerned about high-handed tacticsor questionable tactics engaged in by law enforcement offi-cials or prosecutors because they always cloak themselvesby saying they're protecting us or they're protecting people.You know, nice people don't think they do it to them andthe people they do it to are considered bad and so most

15

people don't get very excited about it. There are a lot ofquestionable activities engaged in by law enforcementpeople."

Coffey cites the recent bugging and wiretapping opera-tion orchestrated by the federal government in an effort tonail alleged Milwaukee mobster Frank Balistrieri and sev-eral others on conspiracy and gambling charges. Coffeyrepresented one of the defendants, Peter Picciurro, duringthe trial. (He was acquitted on all five counts.] Coffey saysthe authorities had the goods on one local bookie, butindicted several others because at least five conspirators areneeded to make it a federal rap.

"That was a good example of the government over-reaching to try to make a federal violation of what is clearlya violation of state law," Coffey says. "The state of Wiscon-sin has gambling laws. The state of Wisconsin is qualified,capable and able of enforcing these laws.

"They had one guy, and he was a bookie, clear and sim-ple. But they take that offense, and they try to make it intoa federal offense, not because the facts and circumstancesof the case were so compelling, or that it was such a largescale operation, but because that was the vehicle by whichthey might be able to get Frank Balistrieri. When you startdirecting offenses to get people rather than to get violationsof law, you create all kinds of trouble.

"People blame the defense attorneys. They talk about'technicalities.' They talk about 'loopholes.' Someone said atechnicality is a law the speaker finds inconvenient at themoment. I believe that, and I believe the concepts andprinciples are valuable. I'm very distressed by what I con-sider to be an effort in the past 10 years to dilute thoseprinciples and not adhere to them.

"Politicians found it convenient to make law and orderand crime in the streets campaign issues and everybody-by legislation and tampering with basic fundamental rights-tries to change and cure that and their cures were worsethan the problems.

"I feel today for people in education, because politicianshave now left crime, after screwing it up, and they're turn-ing to education.

J 'If they do as bad a job as they did in the area of crimi-nal law, we'll probably be turning out functional illiteratesfor the next 40 years."

16

The Law School Campaign

17

David G. Utley reports here on the firstCapital Campaign in the 116 year historyof the Law School. The Campaign is amajor fund-raising effort designed to raise$4,000,000 in endowment. During 1983attention focused on enlisting alumni vol-unteers to assist in the drive around thecountry, and in beginning the solicitationphase within Wisconsin. Now, with thecampaign moving into its national phase,a fuller description of the undertaking, itsrationale, goals and progress to date, isin order.

Dave Utley has in the past two yearsbeen seen by and talked with moregraduates of the University of WisconsinLaw School than has any member of thelaw faculty in the same period. And boththe organization and the success to dateof the Campaign are owing primarily tothe combination of support from lawalumni Dave has already contacted andto Dave's very considerable abilities andefforts in directing the development of thecampaign so far.

Shortly before Christmas 1981 DavidUtley arrived on the Madison scene asDirector of Development for the LawSchool and Vice President of the Univer-sity of Wisconsin Foundation. He walkedin to find the law faculty awash in theperiodic flood of bluebooks to be gradedat the end of a semester and for someweeks got little help from that front inacquiring understandings of the faculty'sperceived needs of the School and itsdreams for the Law School's future. ButDave, a patient and understanding manlong associated with efforts to providesupport for scholarly and intellectual

activities, found more than enough to doin other areas relevant to establishing aneffective and successful capital campaign.He had done this kind of thing for sometime at Beloit College and, after that, hadbeen Director of Development for theprestigious Council on Foreign Relationsin.New York {which he left tojoin us here}.

And in the two years he has been withus at the Law School, this amiable,urbane and very intelligent man hascome to know us very well, well enoughindeed to make us squirm now and thenat the way he grins at some extravagantremark we make. But the faculty likeDave a great deal and from the record todate the law alumni who have met himappear to share the faculty's judgment.

Ed.

David Utley's report on theprogress of the Law SchoolCampaign follows.

Law School Budget-State Funds

Year Budget Nominal Real Value Real Change % ChangeChange (In 1977 dollars] (From 1977) (From 1977)

1976-77 $2,160,2961982-83 $3,305,952 +$1,145,656 $2,019,300 -$140,996 -6.5

18

Background

For many years observers of Ameri-can higher education have noted thatthe nation's public universities-atleast the better among them-dependon more than public funds alone.Indeed, it has become something of acliche to refer to our major public uni-versities as "state-assisted" rather than"state-supported" institutions. What-ever language one uses in describingthe economics of higher education, itis clear that multiple sources of sup-port are required if public institutionsare to achieve and maintain excel-lence. At the University of Wiscon-sin-Madison, for instance, only about35% of the operating budget comesfrom state appropriations. That figurewill vary among the schools and col-leges on the Madison campus, it istrue, but in virtually every case sup-port from nonstate sources, includingprivate contributions, is required tomaintain and improve the academicprograms.

The Law School is no exception tothis, and it has officially recognizedthe importance of private, voluntarysupport since 1969 when an annualgiving program among alumni wasinstituted. Valuable as the AnnualFund is as a supplement to state funds,it has become clear over the past fewyears that by itself it will not providethe additional funds needed to main-tain the level of excellence to whichthe Law School aspires. In addition tothe Annual Fund income, there is aneed for new revenues to allowmedium and long-range plans for theteaching program, faculty recruitmentand retention, public service and legalresearch.

Wisconsin alumni can be proud oftheir school as one that has establisheda national reputation for combiningthorough and rigorous legal trainingwith a rich and exciting research envi-ronment. But the fortunes of even astrong institution can be precarious.The quality of faculty and of programscan be eroded with surprising sudden-ness and, once lost, can be regainedwith only the greatest difficulty. Forthe past several years the Law School,like the rest of the University, has

been operating under significant finan-cial constraints as the real dollar valueof state funding has declined. In1976-77 the state funded portion of theSchool's budget was $2,160,296. In1982-83 it was $3,305,952. When infla-tion is taken into account, this 53%increase in nominal dollars turns outto be a 6.5% decrease in real dollars.The following table shows whathappened.

In 1982, following an extensivereview and analysis of the LawSchool's programs and finances, thefaculty determined that the singlemost effective way to meet theSchool's resource needs in theforeseeable future was to increase sub-stantially its income-producing endow-ment. Unlike the better private cen-ters of legal education, and even someof the public ones, Wisconsin's lawschool entered the 1980's with a verymodest endowment of approximately$750,000. This left the school depen-dent on state appropriations, occa-sional research grants from founda-tions and government agencies, andannual contributions from alumni, allof which are subject to fluctuation,and the first two have been decliningin recent years. On the other hand, ifthe Law School could substantiallyincrease its endowment, two benefitswould quickly result. First, of course,the funds available for annual opera-tions would be significantly increased.Equally important, the assurance thatthese funds would be available yearafter year would permit more effectivelong-range academic planning.

Accordingly, the decision was madeto undertake a capital campaign toraise $3,000,000 in endowment. Thedollar goal was established after

reviewing the Law School's needs inseveral areas (described below), but itwas influenced also by an awarenessthat this would be the School's firstmajor fund drive, and that the goalshould be a reasonable one for aschool with a modest history of pri-vate support.

No sooner had the goal been agreedupon than the School unexpectedlybecame the beneficiary of a truly mag-

nificent bequest of $1,400,000 fromthe estate of Mr. James P. Shaw, LL.B.1899, and the late Mrs. Shaw. Thisgift, the principal of which resideswith the Milwaukee Foundation, isbeing used to endow a scholarship andloan fund at the Law School. Becauseof the size and the early arrival of thisaddition to the Law School's endow-ment, it was quickly decided to raisethe campaign goal, and we now haveour sights set on increasing the endow-ment by at least $4,000,000.

Components

When raised, the $4,000,000 inadded endowment will be used to sup-port a number of Law School pro-grams. Approximately two-thirds($2,600,OOOlwill be allocated to theoverall legal education program. Justover one-third ($1,400,000) is soughtfor the support of three particular pro-grams-Business Law, Interdiscipli-nary Legal Studies, and Labor Law-inwhich the Law School has establisheda national reputation, or, as in the caseof Business Law, where the faculty hasagreed additional support andstrengthening is desirable. A fullerdescription of these objectives follows.

1. Support of the Overall LegalEducation Program: $2,600,000

A. The Endowment of SixBascom Professorships: $600,000

One of the major challenges facingthe Law School today is that of facultyrecruitment and retention. Wisconsinis facing increasingly stiff competitionfor the best faculty. Put simply, Wis-consin's faculty salaries, traditionallysomewhat lower than those at ourpeer institutions, have been falling fur-ther behind. A somewhat grim jokehas been heard on campus for years:Lake Mendota is worth (name yourfigure) thousand dollars in salary. Per-haps. But an essential qualifier to anysuch assertion is: "up to a point."Unfortunately, the Law School haspassed that point. The average "gap"in salary between that of our facultyand faculty at comparable law schoolshas more than doubled during the pastfive years. To date this state of affairshas cost the Law School several newadditions to the faculty, as promisingteacher-scholars who were asked tojoin the teaching staff have acceptedoffers elsewhere. While Wisconsin sal-aries at the junior faculty level were ingeneral competitive, what had turnedthem away were the very substantiallags in salaries in the mid range andsenior levels of the law faculty. Thissalary deficiency, if not corrected orcompensated for, may result in loss ofsome of the best of the current facultyand, more seriously for the long-runinterests of the Law School, turn awaythe kinds of people who make up agreat faculty.

By providing support for scholarlyand professional activities, the BascomProfessorships can make the LawSchool more attractive to top legalscholars and teachers. Bascom Profes-sorships, to be endowed at a mini-mum of $100,000 each, have beenidentified by the university as animportant inducement in attractingoutstanding professors. Such profes-sorships will be rotated among distin-guished faculty, teaching in differentareas of the law, and, by providingfunds for released time for research

and for the development of newcourses, as well as for secretarial sup-port, attendance at professional meet-ings and scholarly materials, willstrengthen the entire educational program.

B. For Scholarship Endowment:$1,250,000

Currently 80 percent of Law Schoolstudents are receiving some sort offinancial aid, but of the amountdevoted to scholarships and loans onlysix percent comes from the School'sown funds. Ninety-four percent con-sists of federal and state aid programsnow threatened with reductions andeligibility limitations. To assure thatqualified students will not be barredfrom obtaining a legal education, theLaw School has sought to establish anendowed student aid fund which willprovide an adequate level of scholar-ship and loan assistance.

C. For Support of the GeneralLaw Curriculum: $750,000

While a high quality faculty, and anable, motivated student body willalways be the key elements in thelearning process, other resources areessential for a quality legal education.Unfortunately, today's budget con-straints prevent the Law School fromproviding them in sufficient measure.Compared to that of other schools theLaw Library is underfunded and addi-tional resources are needed for acqui-sitions. Support is needed for the lec-tureships and fellowships which, bybringing to campus outstanding legalscholars and practitioners, greatlyenriches the learning program. TheLegal Education Opportunities Pro-gram is playing a significant role inhelping minority and disadvantagedstudents to earn their degrees, but itneeds additional funds to supportintensive instruction in writing andlegal analysis. Finally, the additionalresources sought would enable theLaw School to expand its offerings inclinical and practice skills, to developnew courses, to support teachingmethods workshops for the facultyand would allow more small groupinstruction.

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II. Support of Programs in Business Law,Interdisciplinary Legal Studies, andLabor Law: $1,400,000

In recent years the Law School hasbeen fortunate to have on its facultythree men who established themselvesas leaders in their field: James WillardHurst in Legal History, George Youngin Business Law, and Nathan Fein-singer in Labor Law. The substantiveareas in which these men worked arefields in which the Law School alreadyenjoys considerable strength and uponwhich it wishes to build. We believethe most appropriate way to do this isto establish an endowment fund tosupport teaching and research in eachof the fields in which ProfessorsHurst, Young and Feinsinger workedso productively. In so doing we intendboth to honor these men and carry onthe work they so significantlyadvanced. Specifically we will seekgifts to establish:

A. The George H. Young Fundfor Business Law: $300,000

The George H. Young Fund isintended to strengthen teaching,research and education in the field ofbusiness law. This field, including allthe regulatory programs and tax lawsaffecting business, is becomingincreasingly complex. The faculty hasdetermined that added emphasisshould be placed on this area of thelaw in order to meet the moredemanding needs for business laweducation in the 1980's.

To carry out this goal, the facultyhas voted to establish the George H.Young Fund for Business Law as amemorial to the late Dean Young,whose work in this area is well knownto generations of students, practition-ers and alumni. A principal purpose ofthe Young Fund will be to establish aGeorge H. Young Professorship ofBusiness Law. Distinguished membersof the faculty active in areas of lawaffecting business will be eligible forthe Young Professorship, and Profes-sorship funds will be used to supportteaching, research and education inthe business-related portion of the

20

Law School's curriculum, includingthe development of new or improvedcourses. At the discretion of theappointees, the Professorship incomecould be used for research and sec-retarial support, conferences, andother purposes approved by thefaculty.

In addition to financing the YoungProfessorship, income from theGeorge H. Young Fund for BusinessLaw will be used to support visitinglecturers, scholars and professors inthe business law field, and generallyto support faculty research and cur-riculum development in this area.

B. The James Willard Hurst Fundfor Legal Studies: $800,000

In the classroom and through hiswriting, Willard Hurst taught that thelaw can only be understood whenseen in its historical and social per-spective. From this lesson several gen-erations of Wisconsin scholars havedeveloped a unique approach to thestudy of "law in action;" an approachwhich made the school one of themajor centers for legal research in thecountry. The Hurst Fund will supportthe investigations and publicationsneeded to continue this tradition ofresearch on the history, meaning andimpact of the law.

We propose to establish the HurstFund at this time for two reasons.First, we wish to honor ProfessorHurst on the occasion of his recentretirement from active teaching, andwe want to acknowledge the centralrole he has played in the school and inits research effort. Secondly, ourresearch program faces a serious chal-lenge which must be met. Only sixpercent of the regular law school bud-get is available for research. For manyyears that modest amount was signifi-cantly supplemented by federal andfoundation research awards. Morerecently however, these awards havebeen drastically curtailed in numberand amount. If we are to continue tobe a major center of legal scholarshipwe must secure other sources ofsupport.

The Hurst Fund will provide an ini-

tial endowment of $700,000 for theLaw School's planned Institute forLegal Studies. By assuring a source ofongoing support, the Hurst Endow-ment will enable the Law School,through the Institute, to maintain andbuild upon its present status as aleader in the study of law in action.The Institute will support facultyresearch and disseminate the results ofsuch investigations to the legal profes-sion and the public. By concentratingon issues of current concern and fun-damental importance it will contributesignificantly to both the teaching andpractice of law. Examples of the typesof studies to be conducted under theInstitute's auspices includes theadministration of civil justice, the costsof litigation, the role of lawyers and oflaw in the regulation of business, andthe changing nature and needs of thelegal profession.

Most encouragingly, the firm ofFoley & Lardner and the Wisconsinlaw alumni in that firm have gottenthis segment of the campaign off to agood start by endowing the Foley &Lardner-Bascom Professorship inhonor of Willard Hurst. This profes-sorship will be awarded on a rotatingbasis to faculty members whose schol-arly work continues the Wisconsin tra-dition of the study of law in action.

C. The Nathan P. Feinsinger Fundfor Labor Law: $300,000

The third goal is to strengthen a wellestablished program of teaching,research and service in the labor lawfield.

Sixty years ago-in 1922-the LawSchool was one of the first in theUnited States to officially recognizethis emerging field when it addedcourses in labor law and collectivebargaining to its curriculum. Duringthe subsequent half-century the Schoolhas continued to build on its pioneer-ing efforts and has become a leaderamong law schools in labor law teach-ing and research.

The Law School's prominence inlabor law is attributable importantly tothe work of Professor Nathan P. Fein-singer. Upon joining the faculty in1929, Professor Feinsinger pioneered

in the fields of labor law and collectivebargaining, and well before his retire-ment.from active teaching in 1973 hadestablished a national and interna-tional reputation as a mediator andarbitrator. His scholarly research wasaugmented by an exceptional career inpublic service.

This tradition, of outstanding teach-ing and direct personal involvement inthe practical aspects of labor law,remains a strong and active one atWisconsin. Indeed, the Law School'sprogram is one of the strongest in thecountry. Faculty members working inthe field are nationally renownedteacher-scholars with extensive experi-ence in labor-management relations.Students interest in the field also isexceptionally high. With additionalsupport this already very good pro-gram could become truly outstanding.

Today, new laws and court decisionsdealing with equal employmentopportunities, worker safety and pen-sion rights are appearing with growingfrequency. At the same time,increased recognition is being given tothe problems of productivity, compar-able worth, and the role of the workforce as vital factors in the long termhealth of the American economy. As aresult of these developments, the fieldof labor law is acquiring additional sig-nificance. We propose to build on thetradition of excellence and achieve-ment Professor Feinsinger brought tothe discipline by establishing anendowment fund to support researchand teaching in the field, to fundgraduate study in Labor Law, toarrange for national and internationalconferences, and to establish anendowed Bascom Professorship. Withsuch resources we can capitalized onour strengths and supplement them,thereby assuring Wisconsin's contin-ued leadership in the field.

Progress To Date

As of December 31, 1983,$2,976,842 in gifts and pledges to theLaw School Campaign had beenrecorded. Of this amount, $2,672,248had been received and was function-ing as endowment.

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1,658,714Rec'd&

Pledged

3,517Rec'd&

Pledged

300,000Goal

300,000Goal

800,000750,000 Goal

Goal

600,000Goal 451,008

Rec'd&

Pledged

Scholarships EndowedProfessorships

General AcademicSupport

ILS Business Law Labor Law

While the drive has thus gotten offto an encouraging start, with over 70%of our goal achieved, much remains tobe done. The total amount added tothe Law School's endowment isindeed gratifying. But as in most majorfund drives, substantial early progress

was made possible by a relativelysmall number of very generous donorswho contributed to the support of par-ticular components of the LawSchool's program. As a result, we aremuch closer to reaching our goal forsome segments of the drive than for

others. The endowed scholarshipfund, for instance, which benefitedfrom the Shaw bequest and a fewother generous gifts, has alreadyexceeded our dollar objective. In otherareas, much remains to be done, andthe following graph illustrates.

With the campaign now moving intoits national phase, the Law School areconfident we will reach our overallgoal. The support received to datefrom law alumni in areas where thedrive has been underway has beenvery encouraging and augurs well forthe remainder of the drive. The sub-stantive objectives of the drive-main-taining a top flight program of teach-ing, public service and scholarship atthe Law School-is surely one that alllaw alumni can support. As the casefor the Law School is carried to alumniduring the corning year, we are confi-dent it will receive a sympathetichearing, and, we hope, a generousresponse.

Goal: $4,000,000

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The Bascom Hill SocietyThe Bascom Hill Society consists of

those individuals who have contrib-uted $10,000 or more to support theprograms of the University of Wiscon-sin. The Law School wishes to expressits deep appreciation to the followingalumni and friends who have contrib-uted to the Law School Campaign bymaking Gifts or pledges at The Bas-com Hill Society level during 1983.

Mr. &Mrs. Robert W ArthurJoseph R. BarnettDavid E. BeckwithGlen H. BellMr. & Mrs. John S. BestMr. &Mrs. Theodore C. BolligerJames P BrodyMr. &Mrs. Patrick CotterEvjue FoundationMrs. Leon F. FoleyFoley & Lardner (firm)

Laurence C. Hammond, Jr.Gerald]. KahnMarvin E. KlitsnerCharles A. Krause FoundationRobert W LutzThomas G. RagatzHarry v: RuffaloHelen M. SchloughLeonard F. SchmittVirginia WattawaWilliam]. Willis

Planned Giving: Another Way to Help!

Many friends of the Law Schoolmay wish to support the Capital Cam-paign by feel their circumstances donot permit them to make an outrightgift at this time. In that case they maywant to consider arranging for abequest or other form of deferred giftwhich will benefit the School at a laterdate.

Such gifts can be of great impor-tance to the Law School, as recentexperience demonstrates. In additionto the Shaw gift, described elsewherein this issue, the Law School hasreceived over the past year and a halfseveral other sizeable bequests. Theseinclude gifts of $143,000 from theestate of the late Thomas M. Tracey,LL.B. '37; $287,000 from the estate of

William H. Voss, LL.B. '29; over$106,000 from the estate of M.E.Davis, LL.B. '39 of Green Bay; and$35,000 from the estate of Mrs. MaudE. Otjen. All of these gifts have beenadded to the Law School's permanentendowment.

The Thomas M. Tracey gift is beingused to provide badly needed supportfor the Law Library. The Voss bequestwill be used to establish one or twoBascom Professorships in Law. TheDavis and Otjen gifts will provideadditional scholarship support, withMrs. Otjen's bequest being added tothe Christian J. Otjen ScholarshipFund previously established inmemory of her late husband.

A Word of Thanks

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No fund drive of the size beingundertaken by the Law School couldsucceed without the active support ofconcerned alumni willing to investtime and effort in the undertaking.The Law School is fortunate to bereceiving the active assistance ofnumerous alumni who have agreed toserve on campaign committees in vari-ous parts of the country.

To date the following area chairmenhave agreed to lead the Law School'sfund-raising effort in their areas. Tothem, and to the many additional loyalalumni who have agreed to help, weextend our deepest thanks.

Finally, a thanks also to alumsDouglas H. Soutar, Sr. of New Yorkand David Previant of Milwaukee andWashington, D.C. who have agreed toco-chair a special fund-raising effort insupport of the Labor Law program atthe Law School. Unlike the other seg-ments of the drive which are beingorganized primarily on a geographicalbasis, the Labor Law component is be-ing organized substantively, with anational committee now being formed.The fund-raising efforts of this groupwill be getting underway this year.

Area

MilwaukeeDane CountyKenosha & Racine CountiesGreen, Rock, Walworth & Jefferson CountiesSheboygan, Calumet & Manitowoc CountiesSauk, Columbia & Dodge CountiesLa Crosse, Trempealeau & Vernon CountiesOutagamie CountyWinnebago CountyWood, Portage, Marathon & Oneida CountiesGrant, Crawford, Richland, Iowa & Lafayette CountiesNorthwestern WisconsinEau Claire areaChicagoMinneapolis-St. PaulWashington D.C.San FranciscoLos AngelesHawaii

Campaign Chariman

John BestRichard L. OlsonWilliam E. DyeRodney O. KittelsenJohn R. HoldenCarroll B. CallahanDaniel T. FlahertyDon R. HerrlingJerome T BomierG. Lane WareMac A. McKichan, Sr.Harold WitkinGeorge CarrollTomas M. RussellW Thomas Doar, Jr.Arnold H. WeissAllan JosephThomas BaldikoskiWilliam D. Mett

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Wisconsin Women's Law JournalUniversity of Wisconsin Law School 975 Bascom Hall Madison, Wisconsin 53706

Announcing the. . .

Wisconsin Women's Law Journal

A new publication dedicated to covering all areas of law that impact on women's lives today. The goals of WWLJ include:

- providing a forum for scholarly research and discussion of legal issues that affect women;- encouraging research and legal analysis in important areas of the law neglected by traditional law reviews;- addressing legal issues that are of importance to practitioners, scholars, students, legislators, and women's organizations.

The journal will include articles on women and economics, legal issues in the workplace, recent legislation affectingwomen's rights, women's health and the law, and many more topics of concern.

SUBSCRIBE NOW!

Premier Issue: Fall 1984

_$ 8.00

_$15.00

__ Check Enclosed

__ Please Bill

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