Part 1: Practicing Law in 20th Century Wisconsin: The Courts and the
Bar Grapple with Growth
By Joseph A. Ranney
The practice of law in Wisconsin changed tremendously from
territorial days to the end of the 19th century. The first generation of
Wisconsin lawyers (1836-1860) devoted as much time to molding the
state's government and economy as to legal practice. Subsequent
generations (1860-1900) concentrated on shaping the state's legal
culture and trying to establish the bar itself as a permanent
institution. 1
![](/SiteCollectionImages/WisconsinLawyer/ldr/pre2005/hisone.gif)
Marquette University students wait to register for classes
(1947).
Photo courtesy of Marquette University
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Any thought at the end of the 19th century that the practice of law
had finally stabilized was quickly dispelled. The dramatic expansion of
Wisconsin's population and economy during the 20th century increased
demand for legal services to an extent that Wisconsinites could not have
imagined in 1900. The modern history of the Wisconsin bar consists
largely of how it has responded to the problems and opportunities
created by growth.
This article discusses how Wisconsin's chief legal institutions, the
courts and the State Bar have responded to growth and have tried to
control it. The article focuses on the ongoing debate over bar
integration since the 1930s and the reorganization of the court system
in the 1950s and 1970s to meet ever-increasing caseloads. A later
article will discuss changes in the day-to-day practice of law created
by growth, particularly the steady diversification of workplaces and
types of practice throughout the 20th century and the explosion in the
number of women lawyers since the 1970s.
Growth of the bar
Just how fast has the Wisconsin bar grown during the 20th century? It
grew slowly but steadily from about 1,700 lawyers in 1900 to 4,000
lawyers in 1950. The depression of the early 1930s affected lawyers
fully as much as other occupations and slowed the bar's growth. World
War II also slowed growth temporarily, as many attorneys entered
military service. Unlike many other fields, there were few women
available to replace departing attorneys. 2
The second half of the 20th century brought two periods of sharp
growth of the bar: the 1950s, and the period from 1970 to 1985. The bar
expanded from about 4,000 lawyers in 1950 to 6,953 in 1960 (an average
annual growth of 6 percent, compared to annual population growth of 2
percent) and from 8,302 lawyers in 1970 to 14,198 lawyers in 1985
(average annual growth of 4 percent, compared to annual population
growth of less than 1 percent). Since 1985, the bar has grown at an
average annual rate of about 2.5 percent. Today there are 18,993 lawyers
licensed to practice in Wisconsin; 13,517 reside in Wisconsin. 3
The growth periods of the 1950s and 1970-85 were spurred by cultural
changes and increased economic demand. In the late 1940s and early 1950s
many students who had postponed their professional education because of
the war returned to law school, and the GI Bill probably encouraged many
students to enter law school who would not have considered it otherwise.
In the wake of the civil rights, women's rights and environmental
movements of the 1960s and 1970s, many students viewed law as a career
in which one could both do social good and do well financially. As
American political culture became more conservative and the economy
slowed in the 1980s, the expansion of the Wisconsin bar also moderated.
4
The debate over bar integration
In 1900 the State Bar Association of Wisconsin was a small, voluntary
organization to which only about 25 percent of Wisconsin lawyers
belonged. It performed no significant activities outside of its annual
meetings. 5 As the number of Wisconsin
lawyers grew, State Bar leaders became increasingly concerned about the
lack of a mechanism for keeping track of lawyers, effectively
disciplining dishonest lawyers and advocating the Bar's position on
matters of concern to the entire profession. State Bar president Claire
B. Bird of Wausau first proposed integrating the bar - that is,
requiring all Wisconsin lawyers to join - as a solution to these
problems in 1914. The idea received scant support at first. Many lawyers
opposed integration, mainly because they resented being compelled to
join any organization. 6
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A U.W. Law student reviews class notes while reclinging against
"Gargoyle," the law school's mascot (ca. 1970s).
Photo courtesy of the U.W. Law School
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Support for integration slowly grew during the next two decades. In
1943 the Legislature passed a bill integrating the bar, and in
Integration of the Bar Case (1943) the Wisconsin Supreme Court gave
qualified approval to the law and rejected an argument that integration
violated lawyers' "freedom not to associate" under the due process
clause of the 14th Amendment. Because so many lawyers were in military
service at the time, the court deferred implementing the law until after
World War II. 7
In 1946, to the general surprise of the bar, the court changed its
mind and refused to implement integration. The court worried that
administering an integrated bar would be too large a drain on its time
and resources, and it reasoned that "a free and voluntary bar, even
though embarrassed by lack of funds, is to be preferred to one that is
or feels itself to be dominated by the court." 8
The State Bar spent the next decade building its strength and
carrying out a massive public relations campaign in support of
integration. In 1956 it again petitioned the court for an integrated
bar, and this time it was successful. The court concluded that because
of the increasing size of the bar and increasing disciplinary,
continuing education and other needs, integration should be tried as an
experiment for two years. It also stated there was a real need for the
functions which the State Bar was performing, and that without
integration the State Bar might not survive financially. In 1958 the
court made integration permanent. 9
Opponents of integration, led by Trayton Lathrop of Madison, did not
accept the court's decision quietly. They mounted another challenge,
arguing that the State Bar should not be allowed to take political
positions and lobby for them on behalf of all lawyers. In Lathrop v.
Donohue (1960), the Wisconsin Supreme Court dismissed the challenge
after warning the State Bar to limit its lobbying to matters related to
the administration of justice. The court rejected as overwrought the
opponents' argument that integration smacked of totalitarianism. 10
The court's decision was appealed promptly to the U.S. Supreme Court.
In 1961 a deeply divided high court upheld both integration and
lobbying. Four justices declined to address the validity of lobbying
because integration opponents had failed to specify exactly which State
Bar lobbying activities they found offensive. Three justices broadly
affirmed the validity of lobbying and complained that the plurality's
indecisiveness placed integration "under a cloud of partial
unconstitutionality." 11
Justices Hugo Black and William O. Douglas opposed integration
altogether. Black argued that integration inherently limits lawyers'
freedom of speech, that the Wisconsin Supreme Court and his colleagues
were balancing free speech against regulatory needs, and that such
balancing would jeopardize free speech in the long run. "I do not
believe," said Black, "that the practice of law is a 'privilege' which
empowers Government to deny lawyers their constitutional rights. ...
[O]ne of the great purposes underlying the [Bill of Rights] was to give
independence to those who must discharge important public
responsibilities." Douglas took Lathrop's complaint that integration
smacked of totalitarianism more seriously than did the Wisconsin court.
He complained that, "We practically give carte blanche to any
legislature to put at least professional people into goose-stepping
brigades" which would use integration, along with fee schedules and
prohibition of the unauthorized practice of law, to make war on both
free speech and free competition. 12
Although Black and Douglas did not prevail, their concerns, together
with the concerns expressed by the Wisconsin Supreme Court in 1946 and
1960 and continuing opposition to integration by a significant segment
of the bar, have played a large role in shaping the State Bar since
Lathrop. In 1976 the State Bar set off a furor when it asked the supreme
court to approve a dues increase from $40 to $100 per year to shore up
the Bar's finances and fund new Bar activities. After extensive study,
in 1977 the court granted a limited increase and imposed some controls
on the State Bar's future activities. 13
Soon after the court issued this order, integration opponents mounted
another drive to end integration. In 1978 they petitioned the State Bar
to hold a referendum on integration; the State Bar refused. The
opponents then conducted their own poll that showed 60 percent of
lawyers opposed integration. Based on the poll results, integration
opponents petitioned the court to end integration. In 1980 the court, by
a 5-2 vote, rejected the petition. However, it suggested that the Bar's
lobbying activities had gone further than authorized and indicated that
its next review of the Bar, scheduled for 1982, would be exacting. 14
Judge Roy H. Proctor presides over Superior Court in the Dane County
Courthouse, Madison, Wis., 1933.
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Recognizing that a real threat to integration now existed, the State
Bar made a massive effort to explain the need for an organized bar to
the court and public. When the court's 1982 review committee recommended
various reforms, including terminating the Bar's political action
committee (LAWPAC) as an official Bar agency, the State Bar leadership
endorsed most of the reforms. A few months later the court again
affirmed integration, but it severed LAWPAC from the Bar and established
a procedure whereby lawyers who wished could receive a rebate of the
portion of their dues to be allocated to lobbying activities. 15
Six years later integration opponents, now led by Steven Levine of
Middleton, mounted another attack and won a temporary victory. In Levine
v. Supreme Court of Wisconsin (1988) federal judge Barbara Crabb
accepted the opponents' argument that both the bar and the law had
changed since Lathrop. 16 She noted that
state agencies rather than the State Bar now supervised lawyer
education, and concluded that since 1960 the U.S. Supreme Court had
narrowed the scope of permissible state regulation of free speech. In
particular, she noted that the high court in 1976 had ruled that
financial contributions to an organization can constitute speech. 17 Accordingly, Judge Crabb held that
mandatory bar membership violated the First Amendment. She demonstrated
just how deep and enduring is the concern over bar integration's effect
on individual freedom when she concluded that "lawyers and courts have
been willing to watch over others' First Amendment rights but have
seldom trained their eyes on the constitutional implications of their
own activities." 18
The Wisconsin Supreme Court suspended integration pending appeal of
Levine and resolution of several bar integration cases before the U.S.
Supreme Court. Late in 1988 the Seventh Circuit reversed Judge Crabb,
concluding that the bar and the law had not changed so much as to render
Lathrop obsolete. 19 In 1990 the U.S.
Supreme Court rejected a broad challenge to integrated bar lobbying
activities and held that lawyers could be compelled to pay for
activities that were primarily "professional advice" to regulatory
bodies rather than "political or ideological" activities. 20
In the wake of these decisions, the Wisconsin Supreme Court
reinstated integration in In Matter of State Bar of Wisconsin (1992).
21 A majority reemphasized the court's
belief that lawyers have a special duty to the public that can only be
carried out effectively through an integrated bar, but responded to
opponents by providing a mechanism for arbitration of disputes as to
whether particular bar activities were impermissibly political in
nature. Justice (now Chief Justice) Shirley Abrahamson, in a vigorous
dissent, argued that free speech concerns were more important than the
practical advantages of integration and that the State Bar was now
sufficiently well established that most lawyers would join without
compulsion. 22
The enormous growth of the bar in the 20th century has been a
double-edged sword for the State Bar. Growth created the conditions that
made an integrated, influential bar possible, but the size of the bar
makes it likely there will always be enough lawyers to sustain a
continuing even if generally unsuccessful opposition to integration. The
recent opinions of Judge Crabb and Justice Abrahamson, together with a
continuing series of challenges related to integration, 23 suggest that the intellectual battle
between proponents of free speech and proponents of an integrated bar
will continue indefinitely.
Expanding and streamlining the courts
Wisconsin's population growth also has created continuing challenges
for the state's court system. At statehood in 1848, Wisconsin's founders
created a relatively simple statewide system of justices of the peace,
county and circuit courts, and a state supreme court. Each component
served a distinct function: justices of the peace were to handle small
disputes informally, county courts primarily were to handle probate
matters, circuit courts were trial courts of general jurisdiction, and
the supreme court was the state's sole appellate court. 24 During the late 19th century, as new
counties were created and the state was fully settled, the Legislature
added a patchwork of special courts in response to local needs and
demands. It gave many of the courts overlapping jurisdiction and made
almost no effort to coordinate their work. 25
The patchwork system of the late 19th century reflected strong
popular support for local autonomy, and it was workable as long as
caseloads remained relatively low. But after 1900 the system came under
heavy attack from several directions. First, demand grew rapidly for new
and more efficient courts to meet increasing caseloads. Many bar leaders
called for eliminating overlapping jurisdiction among the courts and
creating multi-branch local courts run under a single administrative
system. In 1907 the Legislature created a uniform statewide system of
municipal courts and in 1909 it created a multi-branch civil court for
Milwaukee County, which was affected most acutely by the patchwork
system's inefficiencies. 26
During the early 20th century the courts also came under attack from
Progressive reformers. Progressives in Wisconsin and throughout the
United States contended the courts were unjustifiably obstructing reform
and were allowing themselves to become instruments of reaction. The
Progressives proposed such remedies as popular recall of judges,
limiting court powers by constitutional amendment and creating entirely
new, more responsive court systems. This component of the Progressive
movement was muted in Wisconsin because the Wisconsin Supreme Court was
less prone to strike down Progressive laws than were many other state's
courts. Still, the complaints of Progressives were serious enough that
Chief Justice John Winslow urged his colleagues to support moderate
reforms before more radical changes were forced upon the courts. In
particular, Winslow urged that rules of procedure and evidence be
simplified, and he advocated a unified state court system more than 40
years before it finally was adopted:
![](/SiteCollectionImages/WisconsinLawyer/ldr/pre2005/hisfour.gif)
Below, full classrooms at the U.W. Law School brought sharp growth
to the bar during the 1950s.
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"There is no good reason why there should be so many courts of
varying jurisdictions, some busy and some idle a good part of the time,
but all doing business in lofty disregard of each other; there is no
good reason apparent to my mind why the courts of a state cannot be
unified and made into practically one or two agencies under an
administrative head or heads who shall, like the business manager of a
department store, have power to direct the conduct of the court's
business of the state, assigning judges to the branches where they are
needed and where they can do the best work as occasion arises." 27
In 1913 the Legislature created a special commission, headed by
Winslow, to examine court reorganization. The Winslow commission
recommended substantial reforms, including the wholesale elimination of
special courts, the creation of a statewide court system with multiple
branches rather than special additional courts in large counties, and
creation of local "courts of conciliation" to handle small disputes at
minimal cost. Local municipalities and judges persuaded the Legislature
to preserve many of their special courts, but the Legislature expanded
the number of circuit courts and decreased their geographical size. In
1921 the Legislature also created a statewide small claims court system
to ease caseload pressure on other courts. 28
A new challenge to the court system arose in the 1930s. At statehood
Wisconsin was one of the first states to reject an appointive system and
make its judiciary entirely elective. Elective judicial systems found
favor in much of 19th century America, but in the 20th century a
reaction set in, mainly due to disenchantment with excessive
partisanship in many states. In the 1930s and 1940s the "Missouri Plan,"
which replaced contested elections with periodic referenda on whether to
retain sitting judges, gained popularity. There was much discussion
about adopting the plan in Wisconsin, and the State Bar's Judicial
Selection Committee formally recommended it in 1934:
"Any system which tends to limit the choice of selection to a field
composed largely of self-appointed aspirants, called upon to meet no
test or qualification, and which compels all who seek judicial office to
assume the position of a supplicant for the favors of the voters or of
an executive who may or may not feel the demands of political influence
and expediency, does not deserve the favor of support of an enlightened
bar." 29
The movement, however, went nowhere. Wisconsin had recognized the
problems of partisanship in judicial elections as early as the 1860s,
and by the end of the 19th century a strong tradition of retaining
competent judges regardless of party was well established. For this
reason, the Missouri Plan was not seriously considered by the
Legislature. Indeed, the State Bar withdrew its support for the plan
four years after recommending it, and no movement for an appointive
judiciary has surfaced since. 30
In the early 1950s a new movement to create a unified court system
began. The newly created Judicial Council, supported by the State Bar,
compiled the first accurate caseload statistics and demonstrated that in
many parts of the state there were either far too many or far too few
courts to handle local caseloads. In 1953 the council and the State Bar,
led respectively by Jack DeWitt of Madison and E.
Harold Hallows of Milwaukee, began a systematic drive to reorganize
the courts. The council proposed a constitutional amendment that would
expand the circuit courts and abolish most county
and local courts.
The amendment passed the 1955 Legislature but failed in the 1957
session, largely because of widespread indifference and skepticism among
the state's lawyers and judges. The council and the State Bar, led now
by Marygold Shire Melli of Madison and Francis Wilcox of Eau Claire
respectively, proposed a more moderate law that would preserve some
local courts but make all courts of record full-time courts and create a
statewide court administrative system. After an intensive campaign by
the Council and the State Bar, the 1959 Legislature adopted the plan. 31
Reformers pressed for more streamlining of the court system in the
late 1960s and also advocated reforms in the Wisconsin appeals process
as concerns about the supreme court's caseload increased. Since
statehood the supreme court had been the only court of appeal from
circuit and county court decisions, and virtually all cases decided at
those levels were appealable to the supreme court as of right. Proposals
were made in the late 1920s and again in the late 1930s to relieve the
supreme court's burden by creating an intermediate court of appeals or
dividing the court into panels and allocating cases between them. In
1938 Chief Justice Marvin Rosenberry went so far as to urge the State
Bar to support a panel system but made clear that the supreme court
would not adopt such a system unless the bar favored it. The 1939
assembly of the State Bar recommended a panel system but the proposal
was narrowly defeated in an advisory referendum of the bar, and went no
further. Rosenberry also was one of the leaders of a movement, popular
in the 1930s, to relieve courts of the burden of reviewing
administrative agency decisions by creating a special administrative
court of review. However, he did not press the idea vigorously in
Wisconsin and it attracted little interest, possibly because it had its
origins in continental European jurisprudence rather than in the
common-law tradition with which Wisconsinites were familiar. 32
The supreme court's caseload expanded substantially after 1940. In
the 1930s the court averaged 250-300 written decisions per year. By the
mid-1970s that number had increased to more than 400. The number of
cases filed with the court doubled from 356 in 1960 to 709 in 1975, and
in the mid-1970s Chief Justice Horace Wilkie indicated that this
increase, together with the court's administrative duties, was
stretching the court's capacities to the breaking point. 33
![](/SiteCollectionImages/WisconsinLawyer/ldr/pre2005/ranney.gif)
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Joseph A. Ranney, Yale 1978, is a
trial lawyer with DeWitt Ross & Stevens S.C., Madison. He is the
author of several articles on legal and historical topic |
A blue-ribbon committee on judicial reorganization was created in
1973; it recommended that an intermediate appeals court be created to
handle the bulk of appeals and that the supreme court be allowed to
choose the cases it would hear. This time there was little opposition to
reform. The 1975 and the 1977 Legislature passed constitutional
amendments to implement the committee's proposals, and the amendments
were ratified and went into effect in 1977. 34 The 1977 Legislature also abolished county
courts and created a unified circuit court system, in large part because
reformers were able to convince county judges and other local judges
that many of their offices would be preserved as circuit judgeships
under the new system. 35
The 1959 and 1977 reforms alleviated but did not completely eliminate
caseload problems in the trial courts: Caseloads have continued to
increase steadily since the late 1950s. In recent years reformers have
focused on alternative dispute resolution mechanisms such as mediation
and arbitration as a possible new solution, and in 1993 the supreme
court adopted rules requiring trial courts to actively encourage the use
of alternative dispute resolution. It remains to be seen how successful
the new rules will be. 36
Endnotes
1 Ranney, The Practice of Law
in 19th Century Wisconsin, 67 Wis. Law. 10 (March 1994).
2 P.S. Habermann, A History of
the Organized Bar in Wisconsin (1986) ("Organized Bar in
Wisconsin" ), 16-17, 30-32; Garrison, A Survey of the Wisconsin
Bar, 20 Wis. L. Rev. 129, 146-47 (1935).
3 State Bar of Wisconsin,
membership records (Feb. 7, 1997).
4 Habermann, Organized Bar in
Wisconsin, 30-32; R.L. Abel, American Lawyers (1989), 7-10.
5 Habermann, Organized Bar in
Wisconsin, 14; see generally, Reports of the Meetings of the
Wisconsin State Bar Association, 1878-1885 (Madison, 1904) and
Reports of the Meetings of the Wisconsin State Bar Association,
1886-1899 (Madison, 1900).
6 Habermann, Organized Bar in
Wisconsin, 38-39.
7 L. 1943, c. 315; 244 Wis. 8, 11
N.W.2d 604 (1943).
8 In re Integration of
Bar, 249 Wis. 523, 530, 25 N.W.2d 500 (1946).
9 In re Integration of
Bar, 273 Wis. 281, 77 N.W.2d 602 (1956); In re Integration of
Bar, 5 Wis. 2d 618, 93 N.W.2d 601 (1958).
10 10 Wis. 2d 230, 244-45, 102
N.W.2d 404 (1960).
11 Lathrop v. Donohue,
367 U.S. 820, 865 (1961).
12 Id. at 876, 884.
13Habermann, Organized Bar in
Wisconsin, 48-50; In re Regulation of the Bar of
Wisconsin, 81 Wis. 2d xxxv (1977).
14 Habermann, Organized Bar
in Wisconsin, 50-51; Matter of Discontinuation of State Bar of
Wisconsin as an Integrated Bar, 93 Wis. 2d 685 (1980). Justices
Roland Day and William Callow voted to end integration.
15 Habermann, Organized Bar
in Wisconsin, 51-52; Report of Committee to Review the State
Bar, 112 Wis. 2d xix (1982).
16 679 F. Supp. 1478 (W.D. Wis.
1988).
17 Id. at 1494-97,
citing Buckley v. Valeo, 424 U.S. 1 (1976).
18 Id. at 1495.
19 Levine v. Heffernan,
864 F.2d 457 (7th Cir. 1988).
20 Keller v. State Bar of
California, 496 U.S. 1, 15 (1990).
21 169 Wis. 2d 21, 485 N.W.2d 225
(1992).
22 Id. at 38, 44, 485
N.W.2d at 232, 235.
23 See, e.g., Crosetto v.
State Bar of Wisconsin, 12 F.3d 1396 (7th Cir. 1993).
24 D.P. Kommers, "The Development
and Reorganization of the Wisconsin Court System," Ph.D. thesis (Univ.
of Wisconsin, 1963) (hereinafter "Reorganization of Wisconsin Court
System"), 202-06, 228.
25 Id., 202-304.
26 Id., 264-65, 271-74;
L. 1907, c. 651; L. 1909, c. 549.
27 Manuscript speech (undated,
ca. 1915), Winslow Papers, State Historical Society of Wisconsin
(hereinafter "SHSW"), 13. See also Winslow, A Legislative
Indictment of the Courts, 29 Harv. L. Rev. 395 (1915); Winslow,
"The Judicial Recall: Is It A Remedy or A Nostrum?" Address to Kansas
Conference on Charities and Correction, (pamphlet, undated, ca. 1914)
and Winslow, "The Twentieth Century Lawyer," Address to Northwestern
University Law School Alumni Ass'n (pamphlet, April 25, 1912), both in
Winslow Papers, SHSW.
28 Winslow, manuscript speech
(undated, ca. 1915), supra n.27, at 13-19; L. 1921, c. 538.
29 24 Reports of Wisconsin
Bar Association 37-38 (1934), quoted in Kommers, "Reorganization of
Wisconsin Court System," 456.
30 Kommers, "Reorganization of
Wisconsin Court System" 457-58; see generally J.B. Winslow,
The Story of a Great Court, 379-86 (1912).
31 L. 1959, c. 315; W.F.
Thompson, The History of Wisconsin, Vol. VI: Continuity and Change,
1940-1965 (Madison, 1988), 628-34; see generally Kommers,
"Reorganization of Wisconsin Court System," 542-621, 631.
32 Kommers, "Reorganization of
Wisconsin Court System," 437-44; Rosenberry, Administrative Law and
the Constitution, 23 Am. Pol. Sci. Rev. 32, 43-44 (1929).
33 Wilkie, "Address to Wisconsin
Judicial Conference," Jan. 14, 1976 (pamphlet, SHSW Collections);
Wilkie, "Address to Joint Session of Wisconsin Legislature," Jan. 23,
1975 (pamphlet, SHSW Collections); Wisconsin Judicial Planning
Committee, 1977-78 Annual Judicial Plan (pamphlet, SHSW
Collections), 18.
34 1975 Assem. Jt. Res. 11, Jt.
Res. 13; 1977 Sen. Jt. Res. 9, Jt. Res. 7.
35 Wilkie, "Address to Wisconsin
Judicial Conference," Jan. 14, 1976.
36 180 Wis. 2d xv (1993).
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