J

Summer 1985Number 1.

University of Wisconsin Law School Forum

ROO LVolume XVI

OCT 1 3 2005

"There are Two Kinds of UW Law Grads"Dean Cliff Thompson

2 633840

Copyright and MetaphysicsProfessor John Kidwell

3

Foundations of FreedomThe Honorable Thomas Fairchild

7

The Law School's Curry Mural: 10One of the Grandest, Most Distinguished Works of Art in Wisconsin

Paul Reidinger

The Giessen University Summer Program: 12A Professorial Exchange Between the UW Law School and theUniversity of Giessen, West Germany

Changing Age-Old Ways:Creating Careers in Legal Education for Minority Law Graduates

William G. Moore

13Cover:Detail of Law School's Curry Mural

Bulletin of the University of WisconsinLaw School, published quarterly.

Edward J. Reisner, EditorEarl]. Madden, Design

Publication office, Law School, Universityof Wisconsin, Madison, WI.

Subscription price: 50~ per year formembers. $1.00 per year for non-members.

Postmaster's note: Please send form3579 to "Gargoyle," University of Wis-consin Law School, Madison, WI 53706.

USPS 768-300ISSN 0148-9623

16

17

18

20

20

Notes on Alums

Faculty Briefs

Board of Visitors Report:The 1984/85 Visit by the Wisconsin Law Alumni Association

Mystery Picture

Editor's NoteEd Reisner

19

2

IIA Single Step Begins with a Journey of a Thousand Miles""There are Two Kinds of UW Law Grads"Dean Cliff F Thompson

Dean Cliff F. Thompson

s many of you know, I and other members of theLaw School have been visiting within and outsideof Wisconsin to report to you on our efforts, and

to hear your reflections about legal education from theperspective of your practice and public service. Mostrecently, Professor Stu Gullickson, UW Foundation VicePresident Dave Utley, and I covered some 1000 miles,dropping in on alums and other lawyers in Sparta, EauClaire, New Richmond, Amery, Balsam Lake, Baron,Rice Lake, Superior, Ashland, and Rhinelander, whichwas our destination. I was scheduled for the UW Found-ers Day speech there, so we decided to use a Sunday andan extra day of travel for some additional visits. Everyoneseemed as enthusiastic as we did about the value of thesecontacts, so there will be .more. The recent trek was actu-ally only one of several short tours to see our graduatesin the past year. I believe a trip like the one to Rhinelan-der is a good step for a new dean. Therefore, I cannotresist turning on its head one of President Kennedy'sphrases (which no one has been able to trace to its allegedorigins in China) to arrive at the symbolically appropriate"A single step begins with a journey of a thousand miles."

In order to help us with these journeys, let me knowshortly after you receive this GARGOYLE if you'd like tobe included in my itinerary around the state during lateAugust. Of course, there will be other occasions, so keepthat invitation generally in mind, and write me a notewhen you are so moved.

Although there seems to be much to catch up on whenI return from visits, I feel renewed by the meetings withalumns who span more than six decades. After manyconversations, I have discovered an obvious but littleknown fact: there are two kinds of UW law graduates.There are those who have Herbie Page stories, and thosewho don't. For those who don't, I should say that Profes-sor William Herbert Page was a faculty member for 36years, ending his service in 1952.

I have been associated with several law schools, andall of them have some kind of legendary Mr. Chips. But Ihave never seen anything like the Herbie Page phenome-non. The enthusiasm with which the amusing, outra-geous, and occasionally unbelievable tales are told isamazing. After I'd heard ten stories, I thought I'd heardthem all, since there were sometimes more than oneversion of the same basic story. How wrong I was! Acollection of these tales would only be a footnote in thehistory of the Law School, but it would be a long one,and, like many such notes, more interesting than some ofthe text. Here is what I'd like you to do. Send me yourstories. Do include details of the appearance and manner-isms of the characters, and indicate whether you saw theevent or heard about it, but do not worry about yourliterary style. We will collect, compile, and edit the talesuntil we have a suitable pamphlet. This may take sometime, but I suspect that the supply is endless, and ourfirst edition may not be the last.

3

Copyright MetaphysicsProfessor John Kidwell

John Kidwell, whose reflective essay onAmerican copyright law appears belowthese introductory remarks, produced thispiece at the request of the GARGOYLE,What we'd asked him for was a kind ofview from Olympus into this esoteric bodyof law and policy and what he has turnedout fits the bill-in our view, at least-graciously and well indeed,

Since 1972, John has been a member ofthe Wisconsin law faculty, having comefrom two years in private practice at Denverfollowing his graduation from the HarvardLaw School in 1970, As a hobbyist, he hasbecome a skilled cabinet maker and, inmore recent time, has developed into aconsiderable computer buff Small wonderthat the challenges of copyright law haveattracted him,

John Kidwell's essay on copyright lawfollows,

In 1841 Justice Story wrote that copy-rights and patents ". , .approach, nearerthan any other class of cases belonging toforensic discussion, to what may becalled the metaphysics of the law, wherethe distinctions are, or at least may be,very subtle and refined, and sometimes,almost evanescent." Folsom v, Marsh, 9Fed, Cas, 342, 344, No, 4901 (c.C.D, Mass,1841).

I suspect that many modern lawyersand students of copyright law, confrontedwith this observation, might add, "Righton!" And, although the revision of thefederal copyright laws in 1976 haseliminated some of the confusion and"modernized" the law, I would guessthat most people familiar with copyrightlaw would still endorse Story's observa-tion. But, I hasten to add, it is this veryquality that makes copyright law sointeresting-or at least I find it so. Thatis, I find copyright law fascinating simplyBECAUSE it seems to test the very limitsof what law can be made to do (andsometimes, it could be argued, to exceedthose limits).

What I would like to offer are someexamples of the kinds of questions nowtroubling Congress and the courts incopyright cases, as well as some of mythoughts on what it is about the copyrightlaw that makes Story's observation apt. Ithink that we will discover that copyrightlaw is uncertain in its application (forthat is what I take Story to mean) notonly because it is, or approaches, theevanescent, but for a host of other rea-sons as well.

An Overview of Copyright LawAs most of you may already know,

copyright is a creature of federal law,The Constitution authorized Congress tocreate a copyright system, which it did in1790, The statute was amended fromtime to time, usually with the effect ofincreasing the scope of copyright byadding new kinds of subject matter, ornew rights.

Until the most recent revision thestates had substantial authority to protectunpublished copyrightable material bymeans of so-called "common law copy-right." One of the most significantchanges introduced in the 1976 statutewas the pre-emption of the authority ofstates to offer such protection; unpub-

lished works were brought under thefederal umbrella and the states wereprohibited from enforcing rights equiva-lent to those granted under the federalstatute.

The core purpose of federal copyrightis to provide protection to the writings ofauthors. "Writings" has been expansivelydefined to include not only books, butpaintings, motion pictures, sculpture,maps, speeches and computer programs,In order to qualify for protection a workmust possess the attribute of "originality"and be "fixed" in a tangible form, Thedegree of originality has generally beenthought to be very modest, so that tele-phone books and art reproductions havequalified for copyright protection butthere has been some recent controversyabout the meaning of even this mostvenerable, and one might assume settled,substantive requirement.

Copyright protection does not extendto protect ideas or processes, but only tothe particular expression of an idea, orthe description of a process. Copyrightprotection is similarly unavailable forutilitarian devices, though it may extendto the description of the utilitarian item,or to separable decorative features of theitem.

Contrary to what some people seemto expect, there are almost no formalitiesassociated with obtaining copyright pro-tection. The copyright arises when thework is fixed (written down, for example)and a notice is required only when it ispublished. This represents another signifi-cant change introduced by the 1976 Act;prior to that time the federal copyrightinterest was created by publishing thework with the prescribed notice. Registra-tion of the work with the CopyrightOffice and deposit of copies is necessaryonly to obtain certain advantages inenforcing rights. and not to preserve theright itself.

The rights secured by the copyrightare enumerated in the statute, and

4

include rights to reproduce the work, todistribute it, to display it, to perform itpublicly, and to utilize it in the creationof new works. All of these exclusiverights are subject to a general privilege of"fair use" and a series of quite specificlimitations that vary by kind of subjectmatter; while the copyright owner of a"musical work" has the exclusive right toperform a song publicly, for example, thecopyright owner of a "sound recording"does not have such a right. What thismeans is that the heirs of Hoagy Carmi-chael must be paid when Willie Nelson'srendition of Stardust is played on theradio, but that Willie himself, the authorof the "fixed", and hence copyrighted,rendition need not be paid. (Until 1972Willie would have had no copyright atall-but that is another story.)

The foregoing is, of course, only acrude description of the structure of acopyright system that is the subject of afour-volume treatise and innumerablejournal articles. But it may be sufficientfor my purpose, which is merely to pro-vide a background for some more pointedobservations.

A Taxonomy of Legal UncertaintyIn the course of another project (not

yet quite ready for publication) I havebeen working on a taxonomy of legaluncertainty. I have taken as a startingpoint the suggestion by Professor Danzigthat most legal problems arise fromuncertainty about the facts, uncertaintyabout the values that bear on the interpre-tation of rules, or from the limitations onthe capability of courts. To this I haveadded uncertainty that comes out of thenature of language. There isn't room hereto fully develop this structure, but I cansketch its outline in a metaphor, and thisshould be sufficient to allow me to usethe structure as a way of organizing thebalance of the discussion.

I would ask you to imagine that Samowned a new kind of watch with whichhe was unhappy, and which he wished torepair. He took it to a watchmaker, whoindicated a willingness to attempt thejob. The watchmaker, after commentingon the novelty of the timepiece, notedthat he needed some time to figure outhow the watch works. He had, in mytaxonomy of difficulty, a FACT problem.In any event, after careful examination,he at least believed he knew how itworked. He then asked Sam what hemeant by "repair." What degree of accu-racy was required? Because even after heknew how it worked, to make it accurateto within a minute a month is a verydifferent matter than to make it accurateto within a minute a day; in terms of mymodel, both he and Sam had a VALUE

problem. They discussed the advantagesof more, as opposed to less, accuracy,and balanced the degree of accuracyagainst the cost of the correspondingrepairs. Knowing how the watch worksreally implies relatively little about thedesired degree of accuracy, though itdoes constrain the range of choice. Theyagreed on a minute a month. At thispoint the watchmaker faced a CAPABIL·ITY problem. He knew how the watchworked and understood what needed tobe done in order to make it accurate towithin one minute a month but lackedthe tools that such a repair required;even a skilled watchmaker cannot repaira watch with a hammer and chisel.

The use of the watch-repair metaphorto exemplify the LANGUAGE problemsis more difficult, though the very fact ofdifficulty may be revealing; a problem isno less real by being hard to describe.But imagine that the watchmaker, afterhaving understood the problem, anddecided what the repair's objectiveshould be, and having acquired the neces-sary tools, explained to Sam, or betteryet, his apprentice, what to do. "Now asyou know, this is a new kind of timepiece.Most watches have a mainspring and abalance wheel. Now this doesn't have amainspring. Instead it appears to have amagnetic gizmo that moves the hands bynudging up against this thingamabob.Now in a regular watch, we would adjustthe tension on the mainspring. Here, I'vediscovered that if you just jigger with thegizmo, it appears to nudge against thethingamabob a little more slowly-ratherthe same effect as tightening themainspring-and the timepiece goes alittle faster. Understood?" Two days laterSam picked up the watch, repaired. Onthe repair slip the watchmaker had writ-ten, "Adjust tension on the mainspring-$25."

This brings me, finally, to a partialcatalogue of hard questions in copyrightlaw, organized according to the categoriesexplored in my metaphor.

Trouble With the FactsOnly a moment's thought is required

to confirm that copyright law disputesinvolve many problems of fact, and thatthese factual problems exist at two levels.The first level is what I call the micro-factual; we often don't know who didwhat, for example. The other level ofuncertainty -the macro-factual-resultsfrom our ignorance about how the worldworks. First of all the very nature of thesubject matter of copyright means thatwe constantly confront hard micro-factualproblems. It is often difficult to ade-quately describe the subject matter of thecopyright itself, for example. The copy-

right is said to extend to the "expressionof the idea". Remember that anyone isfree to borrow the idea itself, but no onemay copy the particular expression. Butwhere does idea end, and expressionbegin? Copyright clearly protects againstnon-literal as well as literal copying;protection for the expression of the ideaprevents paraphrases or recastings of ascript, or work of art, as well as prevent-ing verbatim duplication of the work.Judge Learned Hand indicated that "... a1soon as literal appropriation ceases to bethe test, the whole matter is necessarilyat large, so that ... the decisions cannothelp much in a new case." Later in thesame opinion, speaking of the boundarybetween idea and expression, he noted,"Nobody has ever been able to fix thatboundary, and nobody ever can." Nicholsv. Universal Pictures Corporation, 45 F2d119 (2d Cir. 1930). The intangibility of thesubject matter means, then, that the verydescription of the "facts" of a copyrightdispute may attain the evanescent character suggested by Story.

Another factual problem centers onthe difficulty of determining the geneal-ogy of ideas and their expressions.Because copyright law, unlike patent law,protects only against copying and protect:only against copying material that wasoriginal with the copyright claimant, it isoften necessary to investigate the geneal-ogy of the works of both the plaintiff andthe defendant; given their intangiblecharacter this is no mean feat. The casesare filled with controversy concerningthe maternity and paternity of plays, andpoems, and songs, and scenarios. A juryor judge is often asked to draw an infer-ence as to the genealogy of a work basedon a degree of similarity which fallsshort of being literal, but which appearsto go beyond the coincidental. The BeeGees were recently defendants in a suitby a person who claimed they had copiedhis song and, though the Bee Gees pre-vailed, the degree of similarity betweenthe two works was apparently quitestriking. It has been held, by the way,that conscious borrowing is notrequired-the famous songwriter JeromeKern was once found to have infringedanother's composition even though thecourt was willing to believe the copyinghad been unconscious.

Macro-factual uncertainty abounds incopyright law. For example, how doesthe marginal interpretation of copyrightlaw affect the incentives for productionand dissemination and utilization ofcopyrightable material? If we increasethe incentive for creators by strengthen-ing, or deepening the copyright monop-oly, do we discourage creative borrowingand the production of derivative works?This is a point that is often overlooked in

5

SyllaOWl

SUPREME COURT OF THE UNITED STATES

SONY CORPORATION OF AMERICA ET AL. v. UNI-VERSAL CITY STUDIOS, INC., ET AL.

CERTIORARI TO THE UNITED STATES CoURT OF APPEALS FORTHE NINTH CIRCUIT

No. 81-1687. Argued January 18, 1983-Reargued October 3, 1983-Decided January 17, 1984

Petitioner Sony Corp. manufactures home video tape recorders (VTR'a),and markets them through retsil establishments, some of which are aleopetitioners. Respondents own the copyrights on some of the televisionprograms that are broadcast on the public airwaves. Respondentsbrought an action against petitioners in Federal District Court, allegingthat VTR consumers had been recording some of respondenta' copy-righted works that had been exhibited on oommercially sponeored televi-sion and thereby infringed respondents' copyrighta, and further that pe-titioners were liable for such copyright infringement beesuse of theirmarketing of the VTR's. Respondents lIQughtmoney damages, an eq-uitable accounting of profits, and an iJ1junctionaglliIwt the manufactureand marketing of the VTR's. The District Court denied respondents allrelief, holding that noncommercial home use recording of material brood-cast over the pUblicairwavell was a fair use of copyrighted works and didnot constitute copyright infringement, and that petitione'l'll could not beheld liable Ill! contributory infringers even if the home use of a VTR _considered an inJ'I'inging use. The Court of Appeals reversed, holdingpetitioDell'llliable for contributory infringement and ordering the DistrictCourt to fIilllllionappropriate relief.

Held: The sale of the VTR's to the general public does not coootitute coo-tributory infringement of respondents' copyrighte. Pp, 10-36.

(a) The protection given to copyrights ill whony statutory, 1lIId, in IIIesse like this, in which CongreH lw not plainly IlllIrlred the wune to befollowed by the jndicilllry, this Court mm he ~ in oo~the seepe of rights _ted by a statute thet never contellllpililtedsuch aealeulus of interests. Any individual _y reproduce a copyrighted work

characterization strikes many as hyper-bole. Home taping of phonographrecords, the use of VCR's to duplicatecopyrighted movies or television pro-grams and the copying of copyrightedcomputer programs and games presentsimilar problems. The computer maga-zines are filled with articles and lettersdebating the ethics of copying softwarecomplete with lots of finger-pointing,name-calling, and self-justification onboth sides. I would suggest that this "onthe street" difference of opinion aboutthe rightness or wrongness of the behav-ior is necessarily reflected in our legalnorms, which ends up leaving more thanthe usual amount of room for argumentson both sides.

A Question of CapacityEven in the cases where the facts are

relatively clear, and the objectives simi-larly uncontroversial, we face capabilityproblems. How capable are our existingjudicial institutions of deciding whethera computer program written in COBOLis substantially similar to a programwritten in FORTRAN, or of making thatsame determination when the subject ofcomparison is a gospel tune and therefrain for a rock and roll song? Howreliably can we make decisions about theeconomic effects of borrowings of

factual uncertainty that beset legislators,judges, juries, and lawyers as they con-sider copyright controversies. I hope thatthe few examples I have offered aresufficient to justify my assertion thatfactual problems are ubiquitous, and thatthis explains some of the uncertainty sotypical of copyright cases.

The law relating to photocopyingcertainly exemplifies the problem I amdescribing. Rarely does a week passwithout a call from someone in the uni-versity who wants to know how muchthey can photocopy; I find I can rarelygive them a very helpful answer. There isrelatively little case-law, and what thereis seems always to appear idiosyncratic.The "guidelines" that appear in theHouse Report to the Revision Bill appearto be most appropriate in the context ofprimary and secondary schools, and canbe seen as unduly protective of the inter-ests of authors and publishers. But quiteapart from the lack of clearly articulatedrules (which are probably impossible) Ithink that one of the sources of difficultyhere is the lack of any very strong sense,in ordinary life, of right and wrong whenit comes to photocopying. That is, con-trast our sense of right and wrong aboutinfringement by photocopying with ourattitudes with respect to shoplifting.Publisher and authors constantly charac-terize copying as stealing, and yet the

arguments about copyright policy. Copy-right law prevents not only the reproduc-tion of the original, but also the use ofthe original to create a derivative work.And so, were Shakespeare alive today,the copyright monopoly would likelyhave prevented Leonard Bernstein fromproducing "West Side Story" without theBard's permission since it would probablyinfringe "Romeo and Juliet". But oneneedn't use hypotheticals to demonstratethe application of copyright law to chillcreative efforts. Howard Hughes at onepoint bought the copyrights to all of themagazine articles that had been writtenabout him and then attempted [unsuc-cessfully, as it turned out) to prevent thepublication of a biography that relied onthose articles as sources. The Walt DisneyStudios have been quite aggressive, andmore successful, in attempting to preventthe utilization of their characters in thecontext of parodies of mainstream values.Other contributors to the popular culturehave been similarly hostile to borrowing;a campus newspaper in Wisconsin wassued for printing an ad showing a preg-nant Lucy warning that "It can happento anyone," and counseling awareness ofbirth control. Does the use of copyrightlaw in these cases impoverish us bychilling references to popular culturethat enrich our capacity to communicateto our fellow citizens about issues ofcontemporary concern? This is first afactual, and then a value, question. Willstandard A reduce bad behavior B, and atwhat cost to good behavior C? And then,is it worth it?

Both micro- and macro-factual prob-lems arise in the application of the copy-right law to the computer. First of all,judges and lawyers are presently strug-gling to understand distinctions betweenRAM and ROM and between DOS andMOS. Recent decisions have, for example,confirmed that a software author is enti-tled to copyright protection even if theprogram is embodied in a computer chipwhich is essentially illegible to a humanbeing. The courts and scholars haveargued about what metaphor to use whenbringing copyright to computers. Is acomputer program in fact like amachine-and so unprotectible-v or likethe plans for a machine-and so protecti-ble? In the course of this same debate thecontending interests disagreed about themacro-facts. Would software borrowingdestroy incentives to produce qualitysoftware? Or were those incentives sopowerful that software production wouldcontinue, the only result of strong soft-ware protection being to retard the kindof progressive borrowing that contributesto rapid progress in a new field?

But there is not really room here for acomplete catalogue of all the kinds of

6

copyrighted material, either for the pur-poses of deciding whether the borrowingwas a "fair use", or to decide what thedamages should be? Or what contributiondoes a copyrighted story make to a suc-cessful movie if the story has been re-worked by a screenwriter, and the moviemade by a famous director utilizing theservices of talented actors and actresses?Since I needn't "prove" anything here letme suggest that it may be that, generally,law is most predictable when acting tosupport economic activity in the contextof relatively monotonic economic goals.Copyright poses special capability prob-lems because the values it serves areaesthetic as well as economic, and thenorms are articulated in an effort tocombine both value structures.

The Shifting Sands of LanguageLanguage-based uncertainty different

from the inevitable vagueness or ambigu-ity common to all rules is also present incopyright problems. First of all, the lawof copyright has been confronted on anumber of occasions with changes intechnology which required the interpreta-tion of language in situations not withinthe contemplation of the rule framers.Probably the most famous example ofthis was a case shortly after the turn ofthe century involving the question ofwhether a piano roll was a copy of amusical composition. The Supreme Courtruled that it was not, since it was not avisually perceptible embodiment of thework. The interpretation of the word"copy" to include the storage-medium ofpunched paper simply exceeded theimagination of the majority. The courtshave faced analogous problems with thedevelopment of photography, motionpictures, the phonograph, television,cable television, the photocopy machine,and the computer. In each situation therehas been an inevitable uncertainty.

A second variety of language-baseduncertainty seems to have arisen at leastonce in copyright law. I have argued atsome length elsewhere that one of theproblems with the generation of rules forthe computer software industry is thatthe language of the industry itself is sonew and relatively undeveloped that ithas failed to provide stable linguistic rawmaterial for the articulation of legalnorms. An example is the use in develop-ing legal doctrine of the words "hard-ware" and "software." As computertechnology developed, the function ofthose words seemed to change. Theremay have been a time when it was

thought that the distinction betweenhardware and software was stable, andcritical. As both software and hardwarechanged computer scientists began tospeak of "firmware" -and it becameclear that the distinction in some caseswas relatively unimportant, if not irrele-vant; a particular algorithm may beembodied in either software or hardware.And so the legal norms mirror the insta-bility of distinctions, real and linguistic,in the technology.

Getting Used to UncertaintyWhat I am trying to suggest is that

copyright is interesting because it isdifficult. And it is difficult not because ofinadequacies in our analytic effort, butbecause of structural difficulties largelybeyond the control of the lawyers, judges,and legislators who are charged withforming the law. It is not as if there is alegal Rubik's Cube that has a solution ifonly we are clever enough to find it, butrather that there are some relativelypermanent conditions which simplymake the law of copyright uncertain bothfor the present, and the foreseeablefuture.

Balancing Conflicting ValuesEven if we set aside the uncertainty

that results from fact problems, wequickly confront our apparent uncer-tainty about the values we wish to pro-mote. One of the most fundamentaltensions in the law of intellectual prop-erty is between the "natural right" and"public benefit" theories of copyrightlaw. Is a copyright owner entitled to reapall of the fruits of exploitation, or onlyenough to encourage appropriate invest-ment in production and distribution?

A recent example of this tension canbe seen in the "Betarnax" case in whichthe Supreme Court held that the ownersof copyrights in movies shown on televi-sion had no claim for copyright infringe-ment against the manufacturers of equip-ment (VCR's) that allows people to makecopies of those movies in their ownhomes, for later viewing. Although thereasoning of the case is complex, theCourt did ultimately reassert that thequestion was NOT whether the copyrightproprietor had wrung the maximumreward from his creation, but whether,in this difficult and new case, the protec-tion of the copyright law was necessaryto achieve the benefit to the public ofstimulating creation and distribution ofthe writings of authors. Score 1 for thepublic benefit theory!

But even though the Supreme Courthas frequently asserted that the copyrightlaw's justification must be found in thepublic benefits of extending the privilegeof a limited monopoly to authors, thepower of an explicit or implicit appeal tothe natural right of a creator to controlthe exploitation of a work is evidentagain and again in the arguments madeto courts and the Congress, and at themargin of decision. The Betamax battle isnot over even now; while it appears thatefforts by the movie industry to place a"tax" on blank videotape have gonenowhere, in what could be seen as arelated development Congress has out-lawed the commercial rental of phono-graph records which was believed to befacilitating massive copying by consumeron home equipment, to the injury of therecord industry; efforts to outlaw rentalof videocasettes and computer softwareare apparently underway.

I would suggest that the difficulty thatwe have been having with some of thesecases is attributable to a diffidence in ourcommitment to the copyright proprietor':interests-a diffidence which I share, bythe way. This ambivalence, I assert, isevident in the substantial substantivecomplexity of the Copyright Statute. Notsince the heyday of the great Wallendashave we seen so much balancing! Section106 lists the exclusive rights of authors,boldly, and decisively, in half a page.Sections 108 through 118 (25 pages in mycopy of the statute) catalogue the limita-tions on those exclusive rights. Many ofthese limitations bear the fingerprints ofthe many interests that were representedwhile the statute was hammered out overthe years; what else could explain, forexample, the exemption for the perform-ance of non-dramatic musical works bynon-profit agricultural organizations inthe course of an annual agricultural fair!(17 U.S.C. 11016)) While it could be arguerthat these sections don't really representa lack of commitment, but rather definethe compromise between the authors andthe users-a compromise to which weare wholeheartedly and enthusiasticallycommitted-I remain unconvinced. I sayits diffidence, or if you prefer, ambiva-lence. Section 107-the "black hole" ofthe law of copyright, which grants theprivilege of "fair use" notwithstandingthe grant of exclusive rights in Section106-provides further evidence that thestatute mirrors our indecision about thesubstantive objectives, since it is becom-ing ever more clear that the provisiongoes well beyond merely exempting deminimis copying.

Foundations of FreedomHonorable Thomas E. FairchildUnited States Court of Appeals for the Seventh Circuit

7

Near the end of October 1984 ceremonieswere held at Madison, dedicating a newbuilding to house the United States DistrictCourt for the Western District of Wisconsin.While the District embraces counties cover-ing considerable more than half the area ofWisconsin, Madison is the principal placewithin the District in which sessions of thecourt have been held. And as the size of thecourt's workload increased and the numberof judges assigned to it expanded-there areone senior and two active District judgesthese days-facilities in the old Post OfficeBuilding on Monona Avenue became sorelyinadequate.

The new Federal Courthouse is colorful (astrong blue dominates its exterior) and astriking building. And to listen to the Districtjudges who are using it, the new facility hasbeen welcomed enthusiastically.

judge Thomas E. Fairchild (LL. B. '38)-whose remarks at the dedication of the newcourthouse are reproduced below-has beena close and long-standing friend of the LawSchool. He has, however, earned the vastrespect with which he is regarded not fromhis U W Law School connections alone butfrom a life that has been primarily devotedto public service, both in professional andprivate, personal terms.

Like his father before him, judge Fair-child served as Attorney General of Wiscon-sin and as a justice on the WisconsinSupreme Court. In between those two roles,he took on a challenge in 1952 to WisconsinSenator joe McCarthy-and as the Demo-cratic Party candidate in a year that GeneralEisenhower and the Republican Party sweptthe statewide elections, Tom Fairchild gavejoe McCarthy a close and hard run, thoughMcCarthy returned to the Senate, soonafterwards to stub his toe on the eventswhich led to his downfall.

judge Fairchild left the WisconsinSupreme Court in 1966 when Presidentjohnson appointed him to the Court ofAppeals for the Seventh Circuit. Honored

from his days at the U W Law School for-ward for his very special intellectual abili-ties, he was among the first of a new genera-tion which was to elevate the Seventh Circuitfrom the cellar (or close to it) among thefederal Circuits to a position of respect thatfor a time was unsurpassed. (US. SupremeCourt justice john Paul Stevens-whoarrived somewhat after judge Fairchild-was among the illustrious band who raisedthe Seventh to pre-eminence).

judge Fairchild's remarks at the dedica-tion of the Federal Courthouse at Madisonfollow.

In this courthouse the federal courts ofthis district will enforce and apply federallaw. There will be prosecution of offend-ers, disputes between private persons,and cases where individuals seek redressagainst state and federal authorities. Inall these proceedings, the courts willprotect and implement rights whichreflect the foundations of Americanfreedom. Thus the courts, and this build-ing, will be symbols of these rights.

Most Americans deeply believe in thedignity of the individual and the impor-tance of personhood. Privacy, freedomfrom invidious discrimination, liberty ofconscience-we want these for ourselves.We give at least lip service to preservingthem for others. And it is our good for-tune that our Constitution secures theseinterests from interference bygovernment.

Some of our needs can be fulfilledonly by collective, community action,and to this end government must exist.But we are mindful that limitations ongovernment power are essential if individ-uality is to be preserved. A principalenforcer of these limitations is the judici-ary, federal and state-remarkably inde-pendent of the other branches of govern-ment, and thus able to take, whennecessary, the unpopular course of pro-

tecting the minority from the occasionaltyranny of the majority.

When our forbearers wrote the origi-nal federal Constitution, they providedmainly for the structure of the newnational government, and the types ofpower delegated to it. But so strong wasthe popular commitment to individualfreedom and dignity that the Bill of Rightswas immediately added, forecasting thetypes of assault upon individual libertywhich might be feared from the newgovernment, and prohibiting or limitingits impact in those fields.

In matters of faith, expression, andthought, the First Amendment flatlyprohibited the government from concern-ing itself with whether particular thingsof the mind or spirit were or were not inthe public interest.

Several other Amendments dealt withthe procedures by which the nationalgovernment might call offenders toaccount. No unreasonable search orseizure, no one compelled to be a witnessagainst himself, the accused shall havethe right to assistance of counsel, tosummon witness in his own behalf, knowthe accusation, confront the witnessesagainst him and speedy, public jury trial.These stipulations were the product ofexperience with tyranny.

Following the Civil War federal consti-tutionallimitations were placed on thestates as well. Doubtless, the principalpurpose of the Civil War Amendmentswas to guarantee equal status to thosewho were freed from slavery. In anyevent, the Fourteenth Amendmentcreated federal constitutional limitationson the impact of state action upon per-sonalliberty. It has proved to be a majoradjustment in the relationship betweenthe national government and the states.New developments in this area continueto be pronounced by the Supreme Court.

8

HonorableThomas E. Fairchild

TWo phrases in the Fourteenth Amend-ment, "equal protection of the laws" and"due process of law" have been theprincipal bases for the adjustment.

Only twenty-two years ago theSupreme Court discarded the doctrinethat there was no judicial remedy forunequal representation in state legisla-tures. Ultimately the Court decided thatthe "equal protection clause demands noless than substantially equal state legisla-tive representation for all citizens." As aresult of the new thinking, substantiallyequal representation in state legislaturesand the federal House of Representatives,enforceable by the courts, became therule.

The Fourteenth Amendment aroselargely out of a demand for protection ofthe rights of Black Americans. Accom-plishment of that goal has taken manygenerations. By 1896 the Supreme Courthad decided that it was enough if "sepa-rate but equal" public facilities and serv-ices were provided to Black people.Almost 60 years later, and only 30 yearsago, the Supreme Court decided thatseparate educational facilities are inher-ently unequal and outlawed racial segre-gation in public schools. Still later theCOlFt held that separation by race inother public facilities denies equalprotection.

Here again the thinking of the justicesin 1954 was different from the majorityview in 1896, but the intervening yearshad demonstrated the nation's failure toaccord first class citizenship to BlackAmericans.

We need to acknowledge progress inerasing invidious discrimination, butshortcomings remain. Full integration ofschools is prevented by housing patterns.which have been produced by social andeconomic forces. Central cities sufferfrom flight to the suburbs. Real freedomand equality of opportunity are oftenfrustrated by inferior schools. Where a

metropolitan community embraces anumber of separate municipalities, andthe minority group is concentrated inone, should the legal duty to correct thesituation be shared throughout the com-munity? The larger community is inte-grated in its economy and reason forexistence, but socially and politicallysegregated. There is logic in requiring theentire community to join in the solution,but a Supreme Court decision, dealingwith schools, reached a negative answer.If this is to be the final answer as tofederal constitutional power, the solutionwill be left to state action and the slowprocess of change in social attitudes.

Congress, by using its full commercepower, has outlawed discrimination inemployment on the basis of race, religion,ethnic origin, sex and age. The SupremeCourt some years ago discovered a freshinterpretation of old civil rights statutes,creating civil liability for refusal, on thebasis of race, to employ or to sell realestate. These rights will be enforcedhere.

Discrimination has not been limited tothe relationship between Whites andBlacks. Discrimination and second classcitizenship appeared in the earliest daysin Massachusetts when the authoritiespersecuted the Quakers. Asians, Indians,Irish, Italians, Germans, Poles, Catholics,Jews, and Women, as well as Blacks,have all felt at some time or other thebadge of inferiority placed upon them asgroups in the minds of those who hap-pened to be dominant.

An advance in freedom for one groupinevitably brings greater freedom for all.President Kennedy was elected withinthe memory of most of us. His time asPresident, unhappily, was cut short. Butif he had accomplished nothing else, hisvery election disproved an old politicaladage that a Catholic could not be electedPresident. His election and able perform-ance struck a devastating blow against

bigotry. More recently Blacks have beenelected mayors of some of the greatestAmerican cities. In 1984 a woman is aserious contender for Vice President.Everyone of us, of whatever faith, race,or sex lives more freely today becausethese things have happened.

Supreme Court decisions have attimes discerned other rights so fundamertal as to be entitled to constitutionalprotection, although not expresslydescribed in the Constitution. The rightto travel, to marry, to choose the educa-tion for one's children, are examples. TheCourt has also discerned rights withrespect to the use of contraceptives andabortion which are protected under somecircumstances from interference by thestate.

Through the years, the Supreme COllIhas decided that the due process clauseof the Fourteenth Amendment requiresthe states to observe most of the proce-dural guarantees of the Bill of Rights instate Criminal proceedings. Other deci-sions have spelled out rights for thoseconvicted of crime and serving sentencesin prison.

This protection of individual rights,written into our Constitution, accepted l<a high degree by the people, and dili-gently enforced by the courts, has distin-guished our society from authoritariansystems.

One of the most important rights ofthe individual is the right to dissent-theright to be different in thought, belief,and speech. It is guaranteed in the FirstAmendment.

The Fourteenth Amendment wasearly deemed to have made the FirstAmendment binding on every state. Incase after case, courts have found statuteand ordinances void and have enjoinedofficial acts where they would limit theexercise of First Amendment rights.Opposition to the Viet Nam War and thestruggle of Black Americans for equal

rights are examples of mass movementsagainst the establishment and the statusquo. They were rocky roads at best, butwere sometimes made easier by courtdecisions upholding First Amendmentrights.

We can be sure that freedom ofthought, conscience, and expression wasstrong in the hearts of Americans beforethe words were put in the FirstAmendment.

Apart, however, from governmentaction, our society at times creates socialpressure towards conformity of faith,thought, and expression. The phenome-non of equating dissent with disloyalty orimmorality is the most formidableweapon in this arsenal. One whoexpresses a minority view may escapewith being termed an oddball. When heis called pink or a communist dupe, thewelts begin to appear. The persecution ofdissenters is often generated amongcommunity majorities or vigorous pres-sure groups before it is manifest in gov-ernment activity. The paradox is thatprotagonists of freedom can prevail onlyby reason and persuasion, and must fullyaccord un stinted freedom of expressionto their antagonists.

The enforcement of First Amendmentrights often puts the courts in the role ofprotecting unpopular people. The caseswhere religious freedom is protected bya court often involve small groups withbeliefs or practices which appear strangeto those who deem themselves in themainstream. Free speech cases ofteninvolve people who express unorthodoxideas, or books which people may findoffensive. Persons accused or convictedof crime, but claiming their rights, areoften unlovely characters. The significantthing, however, is not the popularity orattractiveness of the individual or faith

or idea protected, but the truth that thisprotection of rights for anyone protectsthem for everyone.

We search for the real foundations ofour freedom in our willingness to respectthe rights of others, in our tradition thatthe courts enforce these rights for all,and in our willingness to support thatkind of enforcement.

As we dedicate this building, we cher-ish the rights which will be vindicated bythe courts which sit here. We are indeedfortunate people, and must be gratefulfor our system. May I, however, expresstwo thoughts today in counsel againstcomplacency?

Many of the significant principles ofconstitutional law and rights which weenjoy today are not described in exactterms of the Constitution. Rather theyrepresent fresh interpretations by theSupreme Court of the United States,often significantly different from someearlier interpretation. As the process goesfarther and farther from the literal text, itis evident that the perception and philoso-phy of each justice on that Court mustultimately determine that justice's choiceof interpretation. Although the relativestability of the judicial process existsbecause the process is in evolution, andonly very rarely direct overruling ofwhat has been decided before, many ofthe principles we know today will changewith time, often by the closest of votesamong the members of the Court. Giventhe significance of individual perceptionand philosophy, I think it has been cor-rectly observed that a most significantoutcome of the upcoming election will bethe choice of the new justices who maycome to this Court in the next few years.Their perceptions and philosophies willhave profound effect on the direction ofchanging constitutional doctrine.

9

I offer one other thought which mili-tates against complacency in a very differ-ent way.

It is a truism that today's powerfulgovernments are capable of destroyingmankind and the world as we knowthem. Nuclear destruction can beunleashed by mistake, accident, or mis-calculation, even if we accept the proposi-tion that intelligent leaders with reasona-bly accurate information would notdeliberately turn itloose.

Twenty years ago there were peoplewho could solemnly predict that by now,1984, the United Nations would evolveinto a limited world government, capableof preserving world peace through law. Iam appalled at so little movement towardworld peace and justice and that we stillrely on a balance of terror and theabsence of accident to prevent the holo-caust. It is wonderful to seek to build abetter American internal system, butthese thoughts haunt us all.

We Americans are the fortunate ones,both in the well being and the constitu-tional system we enjoy, but an island ofplenty cannot permanently survive in aworld where there is so much destitution.We cannot escape the challenges of themodern world. Our American finemachinery of government, with its judi-cial protection of individual freedom,cannot exist in isolation. Humanity mustsomehow solve the problems of adequatefood for all God's children, create anordered world.

Chief Judge Crabb, and ladies andgentlemen, may this courthouse andthose who function here, long continueto be the symbols of the best in the Amer-ican System.

The law School's Curry Mural:One of the Grandest and MostDistinguished Works of Art in WisconsinPaul Reidinger

Across the north wall of what the currentgeneration of Wisconsin law students knowas the old Reading Room of the Law Libraryis a vast and eye-catching mural, "TheFreeing of the Slaves."

But there was a day when what now isthe old was, instead, the new Reading Room,just added as part of a new wing to theoriginal Law Building built with fundssupplied by one of the alphabetical agenciesof President Franklin Roosevelt's New Deal.And the striking mural which adorned thenew Reading Room was the product of anunderstanding collaboration between theartist, John Steuart Curry, and the then LawDean Lloyd Garrison.

The following is a brief account of theorigins and an interpretation of the executionof that collaboration which was written byPaul Reidinger; now a second-year lawstudent at Wisconsin.

It is no exaggeration to say that the mural"The Freeing of the Slaves" dominatesthe Law Library's old Reading Room.Indeed the work is probably the visualcenterpiece of the entire Law Building: itannounces itself to the most fleeting ofglances. The mural was painted in theLaw School more than forty years ago byJohn Steuart Curry, one of America'sleading regional artists of the twentiethcentury and a native Midwesterner. It isone of the grandest and most distin-guished works of art in the state and themost conspicuous of a number of Curryworks located on campus and aroundMadison.

Curry originally conceived the muralin the early 1930s as a depiction of theexperience in America of Blacks andother immigrants. By 1936, when heproposed the design for the new JusticeDepartment building in Washington, D.C., he had reduced its theme to a treat-

ment of the Emancipation Proclamation.But nervous politicians deemed this ideatoo politically difficult and rejected it. Anannoyed Curry removed to Madison,where the proposed painting drew theattention of Lloyd Garrison, then Deanof the UW Law School.

Garrison's interest in "Freeing of theSlaves" was more than cursory: his grand-father was William Lloyd Garrison, thefamous nineteenth century Abolitionist,and Dean Garrison maintained a deepinterest in the history of the Civil Warand related matters. He suggested toCurry that the mural might fit nicely inthe reading room of the library additionthen under construction, and Curryagreed. For his efforts Curry received amodest $6000, paid from a contributionby the Pabst family in Milwaukee.

Execution of the project posed fewdifficulties. The design was traced onto acanvas-covered board fitted into the

The Curry mural measures an impressive 12by 35 feet. The central figure stands almost11 feet tall.

Photo by Gary SchultzUW Photo Media Service

pediment-shaped space atop the northwall, and tilted downward slightly toprevent accumulation of dust. The imageswere then painted in over a period of aabout a year. According to Maurice Leon,Professor Emeritus and then long-timeLaw Librarian, Curry and one assistantworked from a system of scaffoldingerected over the loan desk, which contin-ued to function despite the proceedingsdirectly overhead.

In theme and expression, the mural isvintage Curry: it is straightforward, vivid,almost crude. Curry, along with ThomasHart Benton and Grant Wood (painter of"American Gothic"], was one of the greatvisual exponents of prairie populism inthe first half of this century. These paint-ers practiced what is called "socialistrealism": their art eschews the genteeland pretty in favor of portrayals of every-day lives and broad social realities. Theirstyle was not refined and delicate butsimple and clear.

These characteristics are much inevidence in "The Freeing of the Slaves."The theme of the mural itself touches avast social upheaval: the release fromslavery of millions of blacks. The humanfigures are not highly individualized butmembers of one of two groups-slave' orsoldier. Two dead soldiers-one Union,one Confederate-lie in the dust in thecorner of the foreground; to the left darkclouds roil as frightened slaves emergefrom their shabby huts; to the right Unionbayonets gleam in the sunlight that beginsto shine through the storm. These imagesare powerful, direct, and simple.

Their effect is heightened by Curry'suse of color. Not for him delicate pastelsand subtle shadings; instead he usesclear, strong colors that express some ofthe fundamental passion of the work.The contrast is particularly strikingbetween the purplish-gray storm cloudsand the flaring orange-yellow sunlightthat begins to dissipate them.

Perhaps because of these very quali-ties, Curry's reputation in recent yearshas declined somewhat. What was oncethought honest and lucid is now said tobe vulgar and provincial. Such is gener-ally the fate of painters, who-like allother artists-must ride the historicalrollercoaster of critical opini9n. There isan element of truth in the current depre-cations of Curry: he was proud of hisMidwestern heritage and celebrated it inhis art. No doubt at some point in thefuture his reputation will regain some ofits lustre; critics, after all, thrive on revis-ing the opinions of their predecessors.

But in an important sense Curry'sstatus among critics is irrelevant to thesplendid work of art he left to the UWLaw School. "The Freeing of the Slaves"is ambitious in theme, spectacular inexecution, and deeply interwoven withthe long history of the institution.

12

Exchanging Professors:The Summer Program With Giessen UniversityDuring the second five week term of thecoming summer session, University ofWisconsin students will have an opportu-nity to sample a comparative introductionto fundamental aspects and selectedproblems of Contract and CorporationLaw of Western Europe. The courseoffering is the result of a summer profes-sorial exchange program between theUniversity of Giessen, West Germany,and the University of Wisconsin LawSchool.

In June, UW Law Professors LarryChurch, Chuck Irish and Zig Zile willtravel to West Germany to offer Univer-sity of Giessen students their perspectiveson Corporation and Contract Law; TheUniversity of Wisconsin Course will beinstructed by Professor Doctor ThomasRaiser and Professor Doctor GuentherWieck.

Professor Chuck Irish

Professor Zig Zile

At UW, the comparative studies willincorporate the German, French, andEnglish legal systems with references toUS law. The course has been dividedinto two parts. The first, taught by Profes-sor Wieck, will start with a survey of thehistorical development of Civil Law inWestern Europe, and examine basicconcepts and principles of the Law ofContract. It will also concern itself withsome characteristic steps toward unifica-tion of parts of the law in WesternEurope.

Part Two of the course will deal withbusiness corporations and the basic prin-ciples of Corporation Law. Also to beexamined are the efforts of the EuropeanEconomic Community to unify Corpora-tion Laws within Europe, and the resultsachieved by those efforts up till now.

Gerald Thain, Associate Dean of theLaw School, and coordinator for the UW

Associate Dean Gerald Thain

side of the exchange, is particularlyenthusiastic about the potentials of theprogram: The offering of first-hand expo-sure to students interested in interna-tional Corporation and Contract Law, thenumbers of whom have been growingrapidly; the opportunity for exchange forfaculty members without the usual legis-tical difficulties that programs of longerduration often entail, and the chance theprogram provides for non-law students toinvestigate a wide range of courses theLaw School offers that accommodate avariety of interests for those in, andoutside of, the Law School. The Europeanside of the program should likewise offerGerman students a unique insider's viewof the workings of American Contractand Corporation Law. What above all ishoped, indicates Mr. Thain, is that theGiessen Summer Exchange representsmerely the beginning of a program whichpromises a rich future.

Changing Age-Old ays:Creating Careers in Legal Educationfor Minority Law GraduatesWilliam G. Moore

13

Over the years, the University of WisconsinLaw School has established itself as aninstitution committed to aiding minority anddisadvantaged students.

In 1967 the commitment was formalizedwith the establishment of the Legal Educa-tion Opportunities Program (LEO;'

In the early 1970s, through the initiativeand major efforts of UW Law ProfessorJames E. Jones, Jr., the Hastie FellowshipProgram was launched in the Law School.The Fellowships were named for the Honor-able William H. Hastie (1904-1976}, aBlack educator and judge who, devoting hislife to public service, had shaped with excel-lence everything he touched. The list ofcapacities in which Judge Hastie had servedwas long and distinguished: Dean of theLaw School at Howard University, AssistantSolicitor in the Interior Department, U.S.District Judge in the Virgin Islands, aide tothe Secretary of War, Governor of the VirginIslands, then Judge and later Chief judge ofthe United States Court of Appeals for theThird Circuit. In these roles, he had been aman "profoundly committed to the better-ment of his race and to the law as the ave-nue by which that improvement might bereached most speedily." And central to thosecommitments was his belief that equaleducation was one of the first steps towardelimination of inequality in the UnitedStates.

Wisconsin's Hastie Fellowship Programwas designed to assist in implementingJudge Hastie's views toward equal education,for the program was uniquely fashioned to"assist minority law school graduates inpreparing for a career of legal education."More than a decade after the launching ofthe Fellowships, and twelve "Hasties" later,it is clear that the program has made asmall but very important contribution to"meeting the critical need for a greaternumber of members of minority groups onlaw school faculties."

Bill Moore-a writer who shortly expectsto attend graduate school (and a big help tothe GARGOYLE of latel-s-relates below thestory of the Hastie Fellowship Program atthe UW Law School.

"If the law is perceived as an oceanwave," related Professor James E. Jones,Jr. of the University of Wisconsin LawSchool to an audience of the AALS sectionin Minority Groups in late 1974, "and theGolden 60s productive of one of tidalproportions in the equal employmentarea, it seems that by the time that wavereaches the shores of academia it will belittle more than a mild ripple that threat-ens to leave few, if any tracks in thecampus sands."

The statistics revealed a grim pictureindeed. In 1974, when Professor Jonesmade the remarks just quoted, less than2% of the practicing lawyers in theUnited States were Blacks. Among legaleducators, as distinguished from practic-ing lawyers, the fraction of Blacks at thattime was almost surely smaller still.Other minority groups likewise weredisproportionately represented in theranks of practicing attorneys and lawprofessors.

To those small numbers of racialminority lawyers, the UW Law Schoolhad in the past contributed. ProfessorJones himself earned his law degree herein 1956 but he had arrived on his owninitiative and it was not until the early1960s that the Law School began its firstaffirmative efforts to interest youngBlacks and recruit them for Wisconsin.Those affirmative action efforts wereformalized with the establishment in theLaw School of the Legal Education Oppor-tunities Program (LEOl in 1967. The LEOprogram was charged not merely withseeking out Blacks but was designedmore broadly to "institutionalize admis-

sions and financial support for minoritylaw students to help remedy the deficien-cies of minority law students in Wiscon-sin and the country."

Wisconsin's efforts down through thetime in which the LEO program wasinstalled focused primarily on efforts tointerest and encourage minority studentsin obtaining a legal education. For sometime, however, the Law School hadsought to add minority lawyers to itsfaculty. For years, the faculty had urgedJim Jones to cast his lot with the Schooland in 1968, he arrived to serve as itsfirst minority representative.

The LEO program at Wisconsin wasmaking some progress by the early 1970s,for the number of participants had contin-ued to grow. Often, though, problemswhich existed for non-minority studentsin Law School pressed on minority stu-dents with still greater force. In the turbu-lent late 60s and early 70s, it was oftenasserted that a chasm separated alienatedstudents from their professors. But if thiswere so as to students generally, it couldbe said that a veritable abyss separatedthe LEO students from their professors.Moreover, the attrition rate among firstyear minority students, for a variety ofreasons, was exceedingly high. A numberof things needed to be done.

No one perceived more clearly thanProfessor Jones that his appointmentcould not by itself close the abyss separat-ing LEO students from the faculty. Minor-ity law professors were going to be essen-tial to that process and the law schoolshad not merely to interest and recruitminority law students; they had to takeon the further task of encouraging andtraining some of them to enter a careerin legal education. Closing the abyss-inWisconsin and elsewhere-would call forthe education of a great many others toequip them, as he had been equipped, to

14

take on the challenges and responsibilitiesof a career as law professors.

With America's minorities essentiallyabsent from the legal profession, law wasan almost exclusively white field, and itpromised to remain that way unless aconscious dismantling of the conditionwere undertaken. Through the initiativeof concerned faculty members, the LawSchool took further steps to do just that.

The Establishment of the HastieFellowships

On April 27, 1973, Professor Jones,encouraged by several of his colleagues,sent a memo to Dean George Bunn pro-posing the "establishment of the WilliamH. Hastie Fellowships," named in honorof William H. Hastie, former Chief Judgeon the United States Court of Appeals forthe Third Circuit, Dean of Howard LawSchool, and "incisive polemicist in theCivil Rights Movement," ranked withsuch figures as Thurgood Marshall andCharles Houston.

The proposed Hastie Fellowship, inProfessor Jones' words, would aim to

"provide advanced legal trainingto exceptional minority students toqualify them for, and encouragethem to undertake, the teaching ofthe law," thus focusing an attack onthe deficiency of minorities in legaleducation;

"provide faculty level supportfor the LEO Program through theutilization of such teaching fellowsas counselors, tutors and 'academicbuddies' of the LEO students,"thereby easing the high attritionrate among first year students;

"expand faculty-level capacitymore adequately to meet the specialneeds of our minority students,and the needs of the universitycommunity," in an attempt to bridgethe gap between faculty and LEOstudents while, again, addressingthe attrition rate issue.

At the start, the program consisted oftwo Fellows per year for a two-yearperiod. During this time, the Fellowswould tutor, counsel, participate inrecruiting and retention concerns, andaid minority students on a half-timebasis, while the corresponding portion oftheir time was devoted to working forLL.M. degrees. Then, as now, the Fellowswere selected with the same .admissionsstandards applying to other law graduatestudents, from a pool of applicants ofminority or disadvantaged backgrounds,by a faculty committee established forthe purpose. Those chosen were provided

with a stipend out of which they wererequired to pay in-state tuition for coursestaken in pursuit of the LL.M. degree.

Short on Resources, Long on IdealsLike the initial LEO Program, funding

for the Hastie Fellowships came fromresearch and staff funds, "a little fromhere, a little from there." State fundingcame later, in 1976. The program founditself shaped by available resources.

But, notes Professor Jones, if the pro-gram was short on resources, it was longon ideals. Only suggested in the ambi-tious proposal, the delicate and intricatenature of the fellowships was revealedthrough time. The tasks were demandingindeed.

William H. Hastie's qualities of "expertcounsel" which "made him a cynosurefor students and faculty alike" were toprove to be helpful, if not essential traitsfor the Fellows. In many respects, thevoid between students and facultybecame, in effect, the Hastie Fellows'home, and placed them in the position ofmiddlemen, at once suspected by facultymembers of "playing surrogate," forminority students, and by students ofacting as buffers, installed for the benefitof the faculty. George Bunn illustratedthe Hasties' position in a letter written tointroduce the first Fellows to the faculty."They are," he wrote, "really neitherstudents nor faculty, but in between, 'gobetweens.' Unless we give them respect

Assistant Dean Stephan Rocha

and attention the students will not."In addition to their duties as counsel-

ors and diplomats, it should be remem-bered, the Hasties were expected topursue their own advanced degrees,saddling them simultaneously with thetensions encountered by both studentsand faculty.

The First Hasties and DemonstrableSuccess

With these difficult roles to fill, andthe accompanying problems to surmount,the fate of the program, and to somedegree, the subsequent success enjoyedby it and those connected with it, wasdetermined by the first Hastie team.

This consisted of Daniel O. Bernstine,currently a UW Law Professor, andNancy T. Bernstine, today Assistant Pro-fessor at Antioch Law School. Theirefforts produced results which furnishedconcrete evidence that a program like theHastie Fellowships could succeed. Andsucceed not mildly, but markedly. For,not only did the Bernstines help to reopenthe lines of communication betweenfaculty and minority students, but duringtheir tenure managed to bring off amarked improvement in the academicperformance of first-year minority stu-dents: In 1969, only 50% of the first-yearminority group had achieved a passingaverage of 77. In 1974, 88% of that year'sgroup met or bettered the 77 mark. More-over, both the Bernstines, having comple-ted their graduate work, went on to

Professor James E. Jones

secure teaching positions-an ultimategoal of the Hastie program.

The Bernstines' success at mitigatingthe "antagonism that had pitted specialprogram students and faculty againsteach other," and at catalyzing the signifi-cant academic improvement among firstyear LEO students, was achieved largelythrough voluntary support services-voluntary because much of the initiativewas left to the students themselves. TheBernstines, rarely playing the role ofteachers themselves, acted as ringmastersin organizing special review and tutoringsessions where small groups of studentsmet with individual members of thefaculty. Informal, friendly counselingwas frequently a by-product of thesereview and tutoring sessions. A greatdeal of the Bernstines' time also wentinto similar counseling of the minoritystudents. But with dialogue betweenfaculty and students established, theresult was more and more the propaga-tion of a feeling of mutual respect andcooperation between faculty and stu-dents, a feeling which grew over time.

The Bernstines refused adamantly tobe either buffer or babysitter. Their abil-ity, as team and individuals, to balanceindependence of opinion with under-standing of both sides enabled them to"assist and criticize both faculty andminority students without damaging(their) relationship" with either group.With the voluntary support system inplace, morale of minority students consid-erably lifted, faculty encouraged, andconcrete results established, the programwas off to a fine start.

Evolution of the FellowshipsThe Bernstines' record at the Law

School as Hasties is a particularly cele-brated one, and understandably so. TheBernstines turned in performances diffi-cult to equal but subsequent Hastieshave also been successful. There arecases, it cannot be denied, where theLaw School and the individual participantwere not as well served by the programas it might have been hoped; still, itappears that the successes far outweighthe failures. And in no case has the expe-rience of the institution or the individualHastie proved to have been fruitless.

Some Hastie Fellows did not completetheir LL.M. degrees. The ideal situationwould call not only for completion of theLL.M. paper but also publication of itscontents in quintessential form. Whilepublication has probably facilitated place-ment, absence of a publication recordhas not hindered their securing positionsin either legal education or other areas ofthe law.

A greater concern is voiced over thoseHasties who, after leaving the Law

School, do not enter legal education.Most have taught for at least a time andthose who have not yet done so indicatethat at some point they do intend toteach. Some feel that work in the field isessential before undertaking teaching,and thus delay entering the field immedi-ately. The program can, in any case,boast a very high success rate. Of thetwelve participants to date, eight havetaught at one time or another.

There were bugs in the Fellowshipdesign. And some remain. Hasties wereencouraged to voice their concern overproblems, so that later participants andthe program itself might benefit fromtheir experience. With a number of thesesuggestions heeded, the fellowships havebeen improved and reshaped for thebenefit of everyone concerned.

One major change set the program ona staggered schedule, which allowed forgreater continuity among the Fellows.Thus, for a time, while one Hastie was inhis or her second year, the counterpartwas just beginning his or her program.Counseling and academic time wasdivided to provide each participant withopportunities for uninterrupted writingand research periods.

One Hastie termed admissions andrecruiting duties "the most difficultundertaking I experienced as a Hastie."Others were concerned about the enor-mous amount of time spent in counseling.With time it was clear that the Jack-of-all-trades role designed for the Fellowswas simply too burdensome for them tobear efficiently. In 1980, it was proposedthat a position of Assistant Dean be estab-lished to handle the counseling, admis-sions, recruiting and retention dutiespreviously provided by the Hastie Fel-lows. The first official Assistant Deanwas Nancy T. Bernstine, certainly nostranger to counseling and recruiting.Since 1982 Stephen Rocha has assumedthese duties.

At the same time that the AssistantDeanship was established, the programwas shortened. With the counselingcontinued only on a voluntary basis, theHasties were left to pursue an LL.M.degree and gather some teaching experi-ence in a year instead of two years' time.

TodayCurrently for the 1984-1985 year, the

Hastie Fellowship is held by KimberleCrenshaw. Ms. Crenshaw completed aB.A at Cornell University and went on toreceive her J.D. at Harvard.

The Fellowship earns high marksfrom Ms. Crenshaw. She praises its flexi-bility but cautions that its offerings areonly what one decides to make of theprogram. From the start, she has been, in

15

her own words, after a "total experience,"and has expressed her eagerness to teach.She is now supervising the Douglas Com-petition.

Ms. Crenshaw recalled her first yearat Harvard, and wished she had had theopportunity to talk and relate with older,more experienced students. In view ofthis, she has gone out of her way to openher doors to first and second year stu-dents. Thus, Ms. Crenshaw defines herrole informally as a "student who is afriend to a lot of first year students" andshe finds the Fellowship virtually "tailor-made" to her interests.

Ms. Crenshaw will clerk for ShirleyAbrahamson, Justice of the WisconsinSupreme Court (and UW Law Facultymember on leave of absence), when shecompletes her year here, and, in the nearfuture, intends to take up teaching, some-thing in which she has always had aninterest.

The FutureThe founding of the Hastie Fellowships

was a response to an acute situation inthe Law School itself and to a broader,deeper and persistent malaise found inlegal education institutions throughoutthe country. The program set out notonly to contribute to the pool of aspiring,qualified minority and disadvantagedwould-be-educators, but more idealisti-cally, to begin a dismantling of the imageof law and legal education as white pro-fessions.

Steps on the road to success havecome. Of the twelve Hasties thus far,eight-as noted earlier-have beeninvolved in teaching at some point. OneHastie is an assistant law dean.

The Law School's commitment toaiding minority and disadvantaged stu-dents continues. But it is essential thatother schools pledge themselves to thesame task, for it is, sadly, the uniquenessof the Hastie Program that makes theforce of the wave, in Professor Jones'metaphor, slow to the point that it leaves"few tracks in the campus sands."

Kimberle Crenshaw

16

Notes on AlumsWho's Oldest of Them AU?

Frank W. Kuehl ILL.B. '23) closed theletter he wrote Dean Cliff Thompsonin late January 1985 with the question,"Am I your oldest grad?" If Frank-aged90 when he wrote Dean Thompson-wasn't our oldest Law Alum at that point,he was, at least, the oldest the Law Schoolwas aware of at the time. But close onFrank's heels for the most senior statuswas his classmate, Christian H. Bonnin(LL.B. '23), who wrote Dean Thompsonat almost the same time, announcing hisage as 89. These two elders both live inthe East these days, Frank Kuehl at 3717Igomar Street, N.W., Washington, D.C.20015, and Christian Bonnin at 47 NorthFullerton Avenue, Montclair, N.J. 07042.Frank spent much of his professional lifeas a lawyer in various federal agencies,while Christian retired as Associate Gen-eral Counsel for Metropolitan Life Insur-ance Company [for which he had workedmore than a quarter of a century).

How about it? Who was our oldestlaw graduate in January 1985? Was itFrank Kuehl, then 90? We'd like to hearfrom others of our more senior graduates,whether they claim the record for ageor not.

OOPS!When listing U.W. Law graduates engagedin law teaching in the GARGOYLE forFall 1984, we failed to include SidneyHarring (J.D. '72; Ph.D. '76), now anAssociate Professor in the CUNY LawSchool at Queens College, Flushing, NY11367.0ne of the "founding" professorsof this new law school, his name wasn'ton the print-out of our graduates in lawteaching which had been supplied us bythe Association of American Law Schools(though the AALS had listed him, largeas life, in the then current Directory ofLaw Teachers). Sorry about this, Sid.

Other Alumni News

Frederick]. Hertz (J.D. '43) has justmarked his tenth year as a judge on theBankruptcy Bench. Prior to his servicethere, he practiced law in Chicago forthirty years. Mr. Hertz indicates that heis anxious to hear some news of his class-mates. Phone him at (312)565-1970 orwrite him at 155 N. Harbor Drive, Chi-cago, IL 60601.

Gerald Kahn (LL.B.:50j of Milwaukee'sGodfrey and Kahn, S.C., has announcedthat his firm will merge with Eagan andLaird, S.C., of Green Bay.

Roy M. Mersky (J.D. '52), Professor ofLaw and Director of Research at the LawSchool of the University of Texas, hasbeen appointed to an endowed professor-ship there named in the memory of EltonM. Hyder, Jr. and Martha Rowan Hyder.

Melvin Wiviott (LL.B. '53) is Professorat the Air Force Institute of Technology,Air University, Wright-Patterson AirForce Base, Ohio 45433, teaching Govern-ment Contract Law.

The Honorable William F. Eich, Jr.,(J.D:63)-his judicial capacities wellestablished by his service in the CircuitCourt for Dane County-was recentlynamed by Wisconsin Governor AnthonyEarl to the Wisconsin Court of Appealsfor the Fourth District.

Dan Rinzel (J.D. '68) is the new ChiefCounsel and Staff Director of the Senate'sPermanent Subcommittee on Investi-gations.

Fran Ulmer (J.D. '72) is currently Mayorof Juneau, Alaska, chairs the Organizationof Women Mayors, and is a committeemember of the U.S. Conference ofMayors.

George A. Northrup (J.D. '73), victori-ous in the 1985 Spring elections, becamea judge on the Circuit Court for DaneCounty, Wisconsin.

Michael N. Nowakowski (J.D. '74),victorious in the same elections, likewiselanded a judgeship on the Dane CountyCircuit Court.

Lawrence R. Hitt II (J.D. '75), partnerin Heyl, Bostrom, Haring and Hitt atDenver, was appointed in Fall 1984 to theNational Big Brothers Board of Directorsin Philadelphia, the first Denverite toserve on the national board in the 38-year history of the Big Brother organiza-tion.

Ann Walsh Bradley (J.D. '76) wasappointed by Governor Anthony Earl inSpring 1985 to the Circuit Court for Mara-thon County, Wisconsin.

Susan R. Steingass (J.D. '76) is a toughone to label. Until recently, a partner inthe Madison firm of Stafford, Rosenbaum,Rieser and Hansen, she was appointed inSpring 1985 by Wisconsin GovernorAnthony Earl to the Circuit Court forDane County. The Law School had beencourting her vigorously before that time,trying to persuade her to consider anappointment to the Faculty. Susan-whoin the past has given the Law School ahand in teaching Civil Procedure I and II(and in Fall 1984 taught Evidence)-saysnot to count her out for part-time lawteaching now that she's a judge. So, asbefore, she seems ready to crowd a greatdeal into any particular day of her life.

j aroslawa Zelinsky Johnson (J.D. '77)became a partner in Reuben & Proctor atChicago in October 1984.

Paulette B. Siebers (J.D. '78) wasrecently appointed by Governor Earl tothe seat on the Dane County CircuitCourt that will be vacated by Judge BillEich (J.D. '63) when he moves to theWisconsin Court of Appeals for theFourth District.

Barbara A. Nieder, Thomas M. Pyperand Ted Waskow ski, all of the class of1980, have become partners in the Madi-son law firm of Stafford, Rosenbaum,Rieser and Hansen.

Carmen Alvarez (J.D. 'Sal-now CarmenSciackitano since her marriage in Decem-ber 1984-is an attorney with UnitedAirlines in Chicago these days, specializ-ing in employment litigation.

Cecile Rizzardi Faller (J.D. '82), for-merly associated with the law firm ofDorothy Nelson Topel, S.C., in Marinette,Wisconsin, reports that she has recentlyjoined the Recka and Joannes Law Firmin Green Bay, specializing in business

17

law, and partnerships and corporationsthrough patent, trademark, copyrightand bankruptcy law.

Faculty BriefsPeter Carstensen has been named aneditor of a part of a new series of micro-films produced by University Publica-tions of America. The series will containbriefs and arguments in major cases inselected topic areas; Peter will head thatwhich is to be entitled "Briefs and Argu-ments of Major Cases from U.S Courts ofAppeals, U.S. District Courts and StateSupreme Courts: Antitrust."

Ken Davis is presently working on twoarticles, one of which deals with theeconomic aspects of various securitiesfraud remedies; the second is a survey ofthe law on corporate social responsibilityand management's discretion to pursueand expand resources on goals other thanshareholder gain. Of the latter, Ken hopesto make it a part of a long term projecton the application of recent theories ofmanagerial behavior toward certaintraditional tenets of corporate law.

Howard Erlanger and Margo Melli willcomplete this summer a study funded bythe National Science Foundation on theprocess of divorce in Dane County. Thetwo indicate that they have found thatvery few cases go to trial, and that extra-legal factors in the negotiations process

are critical in determining outcomes. Italso seems that satisfaction with outcomemay be more dependent on attitudestowards divorce and the negotiationsprocess than on the financial settlementreceived.

Marc Galanter has just released a bookentitled Competing Equalities-Law andthe Backward Classes in India, publishedby Oxford University Press in India. TheAmerican edition was handled by theUniversity of California Press. The vol-ume involved over 25 years of researchby Marc, who is termed by the IndianPress as "a pioneer indiologist on legalstudies," and a "leading American scholaron Indian law:' Just recently, Marc alsoparticipated in a colloquium at the Uni-versity of Texas dedicated to "The BhopalTragedy: Legal and Social Issues:'

As an authority on policing, HermanGoldstein attended and addressed anExecutive Session on Community Polic-ing, held in March at Harvard University.

Orrin Helstad reports that he is in theprocess of updating the roughly 1500pages of text material used in the GeneralPractice course.

Steve Herzberg and Joseph Thome areworking to help organize a trip for law-yers, law school deans, members of theSupreme Court and "other legal figures"to Nicaragua. The trip is coordinatedthrough W.C.C.N., the Wisconsin Coordi-nating Committee on Nicaragua, whichhas organized similar trips for doctors,state officials and farmers in the interestof promoting better relations betweenthe United States and Nicaragua.

Charles Irish-something of a one-manband these days-has just finished areport on the proposed tax treaty betweenNepal and India for the Government ofNepal. Recently, he took on an "of coun-sel" position in the Madison law firm ofStafford, Rosenbaum, Rieser and Hansen.And this Summer, after he completes theteaching of a course on U.S law affectinginternational transactions at Giessen,West Germany, with UW Law ProfessorsChurch and Zile (see p.X), Chuck willhead to Taipei, Taiwan, in August toinstruct a class on tax reform in newlyemerging industrialized countries.

John Kidwell is currently a member ofthe Legislative Council's Committee on

18

the Uniform Trade Secrets Law; he isalso working independently on an articlewhich will address the question of why ithas been so difficult to create legal doc-trine to deal with computer software.

Anita Morse is currently working onseveral articles which concern themselveswith such topics as "Proposed Amend-ments to the ABA Standards for theApproval of Law Schools," and the legalissues surrounding the importation andmigration of labor. She is also the editorof a forthcoming volume on law libraryreference for non-law librarians.

Walter Raushenbush and James Mac-Donald have just published their volumeWisconsin Real Estate Law, with the Exten-sion Law Department. The co-authorsare also involved with the C.L.E RealEstate Update, a program at which theywill offer lectures to lawyers and realestate brokers in March and April inAppleton, Madison and Milwaukee. Mr.Raushenbush is in the process of revisinghis 1974 book, Wisconsin ConstructionLien Law, and the 1974 edition of hisvolume Real Estate Transactions: Casesand Materials.

In May, Gerald Thain will address theNational Society of Public Accountantsannual convention in Chicago on issuesof occupational licensing.

June Weisberger plans to attend theThird Oxford University Symposium onComparative Industrial Relations fromAugust 4-17. This summer she and Howi:Erlanger will complete an article thatdiscusses the new Marital Property Actfrom the point of view of the estateplanner.

Wisconsin law AlumniAssociationBoard of Visitors ReportThe Board of Visitors of the Wisconsin LawAlumni Association was created in 1957': .. for the purpose of assisting in thedevelopment of a close and helpful relation-ship between the Law School and the Uni-versity of Wisconsin Law Alumni on allmatters of mutual interest including LawSchool facilities, curriculum, placement,admission and public relations of the Schooland the Bar." The Board of Visitors contin-ues a tradition started in 1969 to assume anactive and visible role in the Law School byparticipating in law school visitations.

This year's annual visitation was held onMonday, October 29, 1984. On the eveningprior to the visitation, October 28, theBoard of Visitors sponsored a dinner meetingat the Inntowner Motel. Faculty members,law school administrative staff, members ofthe Board of Directors of the WisconsinLaw Alumni Association and the Board ofVisitors attended the dinner. The dinnergave everyone the opportunity to becomebetter acquainted and to increase areas ofcommunication between the alumni and thestaff The Board of Visitors appreciated theexcellent faculty participation and the Boardhopes to continue this event during futurevisitation sessions. The dinner was followedby three brief informative presentations byfaculty members. Summaries of the facultyreports are as follows:

1. Advances in Technology areExpected to Have A Significant Impacton the Law Library (Anita Morse)

Ms. Morse reported that the Libraryfaces a great deal of change in the nextdecade due to advances in technology.

The American Bar Association is consid-ering new accreditation standards permit-ting a refocus of law school librariesfrom book form materials to automatedlegal information systems. The proposedstandards delete any reference to specific,countable volumes and, instead, refer toa core collection "reasonably necessaryto the school's program." These changeswill radically affect access to law schoolmaterials and librarian responsibility forinstruction. Automated informationsystems will:

1) require the integration of the lawlibrarian into law school programs;

21 pose both a challenge to definingthe law school program and a threat to areliance on using number of volumes tojustify financial support. It will meanlarge initial investments, although it mayproduce long term savings; and,

3) offer the law school improved accessbut decrease public access to legal infor-mation. Westlaw and Lexis are privatelyowned and law school libraries haverestricted use contracts. Increased substi-tution will mean decreased public access.

The ABA proposal encourages an increasein technology and high volume legalservice, but it may create unequal libraryservice based on ability to access. TheABA will be discussing these changes inJanuary and February and a vote isexpected in August.

2. The U.W. Law School Continues it'sImportant Research Role andAlumni are Thanked for ContinuedSupport (Marc Galanter)

Even though the time allotted for thepresentation did not allow ProfessorGalanter to identify and define the exten-sive research projects at the Law School,he addressed generally the importantrole of research for the efficient andeffective design and operation of theinstitutions over which the professionpresides, including those institutionswhich deliver justice to the public. Anexample of this research cited by Profes-sor Galanter, was the recent UW LawSchool Study which attempted to dispelthe notion that Americans are faced witha great litigation menace. ProfessorGalanter pointed out that the Universityof Wisconsin is one of the few lawschools that has embraced its responsibil-ity to be a center for systematic learningabout the legal process. The UW LawSchool has recently received nationalrecognition for its research but he notedthat this work has been a tradition at thelaw school for over a quarter of a century.On behalf of the research community,Professor Galanter thanked the Alumnifor its continuing support and hoped theAlumni would find it gratifying that theresearch it helped make possible hasbeen so well received.

3. A Faculty Committee is Reviewingthe Clinical Program (JuneWeisberger)

ProfessorWeisbergerreported on the AdHoc Clinical Programs Review Committeewhich she presently chairs. (Other com-mittee members are Professors Ted Fin-man and Walter Raushenbush], A ClinicalProgram is a faculty supervised studentlaw practice in which the needs of theclient determine to a significant degreethe student's activities. At the presenttime there are 6 clinical programs: (1)LAIP (Legal Assistance to InstitutionalizedPersons); (2) LDP (Legal Defense Pro-gram); (3) CPR (Center for Public Repre-sentation); (4) the Judicial InternshipProgram; (5) the Public Intervenor Clini-cal Program and (6) the Labor Law Clini-cal Program. The last review of the pro-gram took place in 1977 and the currentAd Hoc Committee is reviewing theappropriateness of the 1977 Faculty legis-lation governing the clinical programs.Other issues being addressed by theCommittee include job security arrange-ments for full time clinical teaching staffand the continuing concern that academiccredits be given to students only forsignificant educational experiences. Afterreviewing these issues, the Committeeplans to report its recommendations backto the faculty this year.

Classroom ObservationsThe Board was Again Impressedwith the Excellent Teaching andClassroom Presentations

On the morning of the visit the Boardof Visitors and members of the Board ofDirectors divided into groups to observe10 first year courses and 14 second andthird year courses. The Board of Visitorswas again impressed with the high qualityof teaching and classroom presentationsfrom both the new faculty and the experi-enced staff. The Board was also pleasedwith the excellent student response andparticipation.

The Board of Visitors especiallywanted to note that the Board isimpressed with the apparent high facultymorale even in the face of low facultysalaries. This is clearly a credit to theexcellent faculty, to the law school admin-istrative staff and to the new Dean, CliffThompson. All of the staff is to be com-mended for these efforts.

The Board Met with Chancellor Shainto Discuss Law School Faculty Salaries

The most important portion of thisyear's Visitation was the Visitor's meetingwith Chancellor Irving Shain to discussthe growing disparity that is developingbetween salary levels of the law schoolfaculty at Wisconsin and other major law

schools. In the last few years the U.W.law school faculty salaries have movedfrom a traditional 50th position to 92ndamong 170 law schools. Our school is onthe bottom of the Big 10 and at the bottomof our peer group of law schools forannual faculty salaries. The Boardexpressed concerns over our ability toretain the current excellent staff and tohire new staff in the future. The Boardalso thanked the Chancellor for his recentefforts in substantially assisting the lawschool. The board of Visitors asked whatthe Alumni could do to assist in obtaininghigher salaries. Among other suggestionsmade by the Chancellor, the Chancellorurged alumni to talk with their legisla-tors to seek more support for sufficientfunding.

Note: In addition, the Board of Visitorsurges all Alumni to give generously tothe current Law School Fund RaisingCampaigns-through your efforts, to datewe have been able to fund four professor-ships which will help supplement lawschool faculty salaries.

Student and Faculty Open ForumAnother important part of the Visita-

tion was the discussion the Board hadwith students and faculty during theMonday Noon luncheon. Although thenumber of students attending was small,the discussions were interesting anddealt with a number of important issues.

1. Both Basic Writing Skills andAdvanced Legal Writing Issueswere Discussed By The BoardA concern was raised on two levels cen-tering around the issue of legal writing.First, there is an increasing concern aboutthe level of basic English, grammar andwriting skills exhibited by new studentsbeing admitted to the law school. TheBoard does not believe it is the duty ofthe law school to teach these basic skills.The Law School uses the assistance ofthe general University program in thisarea to assist students and the Boardencourages the continued use of theseU.W. programs. the Board was informedby the Law School Administration that aportion of the L.S.A.T. now tests basicwriting skills but that this section of thetest is not used as a determining factorfor law school admission. The Board wasdivided on the issue of whether to recom-mend that the writing sample portion ofthe L.S.A.T. be used for an admissionstandard, but recommended that thefaculty study the issue further. The Boarddid agree that at a minimum the writingsample portion of the L.S.A.T. continueto be used to identify students with writ-ing problems.Second, there was a concern raised that

19

some students who want advanced legalwriting opportunities do not have suffi-cient opportunity due to staff limitations.It was pointed out that legal writingopportunities are presently availableespecially in small sections and in theclinical program. The Board recommendsthat the faculty determine whether moreadvanced legal writing opportunities arenecessary and/or feasible. Further theBoard invites Professor Kidwell to discussthese legal writing issues with the Boardat a future meeting.2. The Purchase of AdditionalComputers and the WestlawServices is Suggestedl} Faculty ComputersThere was a concern expressed about theneed of the entire law school, staff andstudents, to have the opportunity tomake better use of the significantadvances in technology. A faculty com-mittee is urging all faculty to obtain anduse computers for research and teaching.The Board suggests that the faculty decidewhether to place faculty computers on ahigh priority list for designation of finan-cial contributions by law firms.

2} Westlaw Service for StudentsAlthough the law school has made signifi-cant strides in recent years in offeringthe Lexis service to students, the Board isconcerned about the fact that Westlaw isnot available to law students at this time.The Board believes that it is important tooffer both services in order to adequatelyprepare students to keep up with modernlegal technology.

3. The Alumni are Urged to IncludeMinority Attorneys in Future HiringPlans

The Board also discussed an issue raisedby several minority students that itappeared that law firms were not makingsufficient efforts to recruit minoritycandidates. The Board of Visitors there-fore wants to take this opportunity toremind Alumni of the excellent minorityrecruitment and educational programs atthe U.W. and we urge each of you to takeadvantage of these programs by includingthe hiring of minority lawyers in yourfuture recruitment plans.Respectfully submitted,Susan Wiesner-Hawley, Chair, '73Judge John W. Reynolds, V. Chair, '49William E Dye, '51Lloyd A. Barbee, '55Stanley C. Fruits, '37Kirby O. Bouthilet, '73Thomas R. Hefty, '73Christopher Bugg, '78William Rosenbaum, '50Peter C. Christianson, '77Mark E. Sostarich, '78David Y. Collins, '52

20

ystery Picture: 1959? Were You There?

For the past twenty years the phrase"halls of ivy" has not had much meaningat our Law School. The old Law Buildingmay in fact have had ivy-covered walls,but the new building had only a patch ofperiwinkle in the courtyard and a planterof petunias near the main entry.

Recently, however, all that haschanged. Last session our state Legisla-ture passed an indoor clean air law thatseverely restricts smoking in publicplaces, including the classrooms andhallways of the Law School. Scores ofwall-mounted ashtrays in our buildingsuddenly became obsolete. Removingthem was considered but they wouldhave left lots of obvious holes in thevinyl wallcovering.

Editor'sEd Reisner

oteEarly this semester, with equal funding

from the Student Bar Association andand Alumni Association, the now uselessashtrays became very attractive plantersfilled with philodendron and, yes, ivyplants. After some two months, the plantsseem to be prospering. Perhaps it provesthat plants do thrive when spoken to, orat least spoken of.

There have been a variety of otherstudent activities that have enlivened ourhalls lately.

The new Women's Law Journal soughtmoney to get itself off the ground with asilent auction. Items included a week atthe Martha's Vineyard cottage of onefaculty member and a Chinese dinnerwith another faculty member. W. C.Fields probably would have suggestedbidding on the opportunity not to havedinner with a faculty member.

There is also on-going fund raising toassist a blind, second-year student fromNigeria. Stranded here when his govern-ment was overturned, this student thenhad his scholarship revoked. Our studentshave so far raised over $3000 to keep himhere in school.

On top of all this, it has been StudentBar election time, with spirited campaign-ing not only for the various offices butalso for graduation speaker. This year theUniversity is trying a separate graduationceremony for law, medicine and othergraduate-degree candidates. Unfortu-nately, it is scheduled for the time when

Someone wrote "1959" on the back of this oneWisconsin Supreme Court Justice GroverBroadfoot and UW Law Dean George Youngare pretty dearly visible. Are you there?Who else? Let us know.

the Law School's four year old Convoca-tion program would have been held.Undaunted, the students have scheduledtheir own party for the night before theUniversity event.

Ellen Kozak (J.D. '69) sent the GAR-GOYLE a beautiful calligraphic letter inresponse to our recent story about GeorgCurrie. It turns out that Ellen not onlyhelped draft the student testimonial toGeorge, but she also penned it in thesame style as her letter. The Currie testi-monial itself was pictured in Volume XV,No.3, of the GARGOYLE, at page 9.

As this is being written, Volume XV,No.4, is on its way to you with a newmystery picture for your identification. Anumber of you did write or call withcomments about the picture in No.3, ofthe "first class" in the new Law BuildingThe class must have been Torts or CivilProcedure, and John Crosetto (J.D. '67)remembers it as Professor RichardCampbell's Torts class. Among thoseidentified in the picture are: Crosetto,Cosmo Giovinazz.i (J.D. '67), MartinDean (J.D. '67), James Everson (J.D.'67), Arnold Brustin (J.D. '67), AlvinKriger (J.D. '67), Aaron Goodstein (J.D.'67) and Richard Freedman (J.D. '67).Goodstein says, "Judging from the factthat I was wearing a jacket and tie, itmust have been very early in the firstsemester!" Freedman sees himself in the3rd row and his "clones" several otherplaces in the class as well.

In this issue, our "Mystery Picture" istentatively placed in 1959 (at least that'swhat someone has written on the back olthe print). Wisconsin Supreme CourtJustice Grover Broadfoot appears to beadministering the attorney's oath to agroup of UW Law grads as Dean Georg.Young looks on.